- Reconsideration (error of law)
- Reconsideration (administrative error)
The employer requested that the Tribunal reconsider Decision No. 1327/18I2 and Decision No. 1327/18. The Panel referred OPM Document No. 23-02-01, entitled "Cancers in Firefighters and Fire Investigators", to the WSIB for its review, on the basis that the policy document was inconsistent with the WSIA, specifically, sections 13 and 15.
The Vice-Chair denied the reconsideration request. The Tribunal's threshold test for granting a reconsideration request had not been met.The WSIB advised the Panel that it had determined that the policy document was consistent with and authorized by the WSIA, and that it applied to the worker's appeal. The Panel majority decided to apply the policy as it was written, and interpreted it in accordance with the relevant case law on the appropriate approach to the rebuttal analysis. The Panel majority concluded that the presumption that the worker's breast cancer had arisen out of employment had not been rebutted through the consideration of her non-occupational factors, and that the worker was entitled to benefits for breast cancer.The two errors alleged by the Employer were: a) The Panel majority erred in its interpretation of the rebuttable presumption included in section 15.1(4) of the WSIA; and, b) the Panel majority erred in applying OPM Document No. 23-02-01 as written, after determining that the policy was incompatible with the WSIA, and should have declined to apply the policy and adjudicated the appeal on the basis of the "Merits and Justice" provisions of the WSIA. The Panel in Decision No. 1327/18 found that the presumption provided by section 15.1(4) could be rebutted by the worker's personal information regarding her non-compensable risk factors for breast cancer; however, the evidence of the work-relatedness of the compensable condition could not be considered, unless explicitly permitted by the provisions establishing the presumption. The Vice-Chair found that, in relation to this issue, the decision was reasonable and did not include a significant defect in the administrative process or content of the decision which, if corrected, would probably change the result of the original decision. The Vice-Chair found that the Panel majority lawfully carried out the scheme of the WSIA, including applying the policy as written, pursuant to section 126(1). This approach was reasonable and it did not reflect a significant defect in the administrative process or content of the decision which, if corrected, would probably change the result of the original decision. The applicable version of OPM Document No. 23-02-01 was essentially identical to the applicable regulation O. Reg. 253/07. It is well understood that OPM Document No. 11-01-03 extends only to WSIB policy and may not be invoked to refrain from applying a regulation. The Vice-Chair found that the Panel majority's decision to comply with sections 126(1), 126(4) and 126(8) was reasonable. The new version of OPM Document No. 23-02-01 did not apply to the proceedings as WSIB policy does not apply retroactively.