- Abuse of process
- Estoppel
- Jurisdiction, Tribunal (over Board process)
- Procedure (reconsideration)
- Withdrawal (of issue)
The worker suffered a shoulder and elbow injury in December 2007. In Decision No. 2583/17, the panel found that the worker did not have entitlement for psychotraumatic disability. The worker then appealed a decision of the Appeals Resolution Officer denying entitlement for chronic pain disability. The ARO had dismissed the employer's argument that the appeal was an abuse of process. In Decision No. 883/20, the vice-chair agreed with the employer that the worker's appeal on the CPD issue was an abuse of process and the appeal was dismissed. The worker sought a reconsideration of that determination.
The Vice-Chair agreed with the determination in Decision No. 883/20 that the CPD appeal could not proceed as filed. In order to have the CPD issue addressed, the worker needed to seek reconsideration of Decision No. 2583/17. Consequently, the worker and the employer were to provide submissions on whether the threshold test was met with respect to both decisions and whether both decisions should be reopened so that the CPD and psychotraumatic issues may be heard together. The Vice-Chair disagreed with the determination in Decision No. 883/20 that the CPD issue was withdrawn at the Board. The failure to list CPD on the Appeal Readiness Form (ARF) did not constitute a withdrawal of the issue. The Intent to Object form listed both psychotraumatic disability and CPD. Once an appeal was received by the Board within the statutory timeline, the Board did not impose any further requirements on the parties to proceed with their appeal within a stipulated time frame. There was nothing in the ARF to clearly indicate that any decisions not listed on the ARF would be considered as withdrawn. Moreover, the ARO did not interpret the ARF to mean that that the issues not listed were withdrawn, and the ARO would be more familiar with the form and the intent of Board procedure. The Tribunal did not have jurisdiction to review the Board's process. The doctrine of issue estoppel applied in this case. Tribunal decisions have consistently found that a vice-chair or panel is bound by the evidentiary and adjudicative findings of a prior vice-chair or panel, subject to the Tribunal's reconsideration test. The vice-chair in Decision No. 883/20 was bound by the findings of the prior panel that the worker's fibromyalgia was non-compensable, as it had been a necessary finding in order to determine whether the psychological symptoms associated with the fibromyalgia were compensable. No submissions were made that the fibromyalgia was compensable and the panel proceeded on the basis of that understanding. The worker submitted that he did not have an adequate opportunity to respond to the issue of abuse of process as it was not in the hearing ready letter. The Vice-Chair noted that the hearing ready letter only identified broad issues of entitlement and was not intended to address every legal issue that might arise. Moreover, abuse of process was raised by the employer at both the Board and the Tribunal and would not have been a surprise. The worker also submitted that the panel in Decision No. 2583/17 erred in proceeding on the psychotraumatic issue without clarifying the status of the CPD appeal. The Vice-Chair noted that the panel likely was not aware that the worker intended to proceed on the CPD issue. The worker indicated on the Confirmation of Appeal form that there were no other issues outstanding at the Board. Had the panel understood that the worker was claiming that the fibromyalgia was compensable, it would likely have adjourned the appeal until a final decision of the Board was obtained on that issue. The argument that the panel should not have proceeded was relevant to whether the prior decision should be reconsidered, not whether the vice-chair in the subsequent decision was bound by its determinations.