- Evidence (surveillance)
- Evidence (videotape)
- Reconsideration (consideration of evidence)
- Reconsideration (error of law)
- Reconsideration (new evidence)
- Natural justice (record of hearing)
The worker sought a reconsideration of Decision No. 174/21. Based on the worker's Non-Economic Loss (NEL) award of 56%, the worker was not considered "severely impaired" and was ineligible for an Independent Living Allowance (ILA) and a Personal Care Allowance (PCA).
The worker's reconsideration request was allowed, in part. The threshold test for reconsidering the determination of the worker's NEL award for an organic brain injury and headaches had been met.The Vice-Chair noted that a NEL award is paid retroactively to the date of MMR, and must reflect as closely as possible, the worker's condition at the time of MMR. In Decision No. 174/21, with respect to determining the NEL award for the worker's organic brain injury and headaches, multiple references were made to evidence that discussed the nature of the worker's brain injury and headaches at times which were significantly later than the MMR date of September 6, 2012. The Vice-Chair found this to be a substantial error that met the threshold test for a reconsideration of this issue.With respect to other issues put forward, the Vice-Chair noted that the "new" evidence submitted by the worker was not substantial evidence, and was unlikely to have any substantial impact on any decision to be reached on the merits of the worker's appeal. In addition, the fact that Decision No. 174/21 had relied upon video evidence that was deemed irrelevant in Decision No. 1116/18 proceedings did not constitute an error or a breach of the principle of issue estoppel. It was noted that any concerns could have been addressed by questions to the worker by his representative or through submissions. It is also a best practice for the presence of video surveillance evidence in the appeal record to be addressed as a preliminary issue in a hearing, particularly as it was known to the worker's representative prior to the hearing. In addition, the absence of a recording of the hearing (or portions of it) did not affect the fairness of the hearing that took place prior to the release of Decision No. 174/21. The Tribunal has determined through its Practice Direction that the Tribunal is not obligated to make audio recordings of its appeal hearings. In addition, the Vice-Chair did not find that the Panel had ignored an argument about the applicable law to be applied, or committed an error of law by applying a different legal standard than has been applied in prior Tribunal decisions. The Panel had correctly identified the legal test to be applied to the determination of whether the worker was severely impaired - the exceptional circumstances test. In doing so, the Panel provided useful guidance as to the criteria it found appropriate to examine in determining whether exceptional circumstances existed. The Vice-Chair noted that this was not an error nor was it a departure; it was instead a "potentially useful refinement of the exceptional circumstances case law." In addition, the Panel had not erred in its consideration of the available medical evidence when concluding that the worker was not to be considered severely impaired.