Sunday, November 28, 2010

WSIAT Reconsiderations- Decision 527/08

Under the Workplace Safety and Insurance Act the Appeal Tribunal's decisions are to be considered final.  However, under section 129 of the Act the Tribunal may reconsider its decision"at any time if it considers it advisable to do so".  The Tribunal has applied a high standard of review when asked to reconsider a decision.  It must be shown that there is a significant defect in the process or content of the decision, which if corrected, would lead to a change in the result of the decision. It is not enough to disagree with the decision.  The Tribunal carefully weighs the need for finality in the appeal process and the prejudice to other parties.

As noted on the Tribunal website , the power to reconsider is discretionary. The Tribunal might decide that there is a good legal reason to reconsider a decision when:

"•significant new evidence is discovered which was not available at the original hearing and which would likely have changed the outcome

•the decision overlooks an important piece of evidence (as opposed to rejecting the evidence or distinguishing it)

•the decision contains a clear error of law (for example, the decision does not apply the relevant sections of the Workplace Safety and Insurance Act)

•the decision contains a jurisdictional error (for example, the Tribunal decided an issue which it did not have the legal authority to decide). "

The power to reconsider decisions and the threshold test was considered by Vice-Chair Dee in Decision 527/09R.  The worker argued that the Tribunal decision failed to consider the worker's testimony.  This was rejected by Vice Chair Dee.  The Tribunal simply did not accept the oral evidence of the worker due to numerous inconsistencies.   However, it was found that the prior decision was based on two significant errors of fact.  The Tribunal made its decision on the basis that the worker failed to provide the WSIB with the names of co-workers whom he claimed were witnesses to his ongoing complaints between the initial injury and a recurrence.  However, Vice Chair Dee found that there was documentation in the case record that the worker did provide the with the names of witnesses on a number of occasions, as well as in the reporting of the recurrence.

In addition the Tribunal concluded that the worker was not performing modified work at the time of the recurrence.  Vice Chair Dee noted that the Tribunal did so without considering highly relevant information that might lead to a different conclusion, namely, an incident report from the employer that corroborated the worker's modified work duties. 

These two errors were noted to be significant and that a reconsideration was in order.  This decision highlights the high threshold that an applicant must meet for his or her application for reconsideration to be successful.  It is necessary to show that there is a significant defect in order to be successful on reconsiderations.  It is not merely a disagreement with the result or a rehearing of the evidence.

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