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WORKERS' COMPENSATION - Benefits - Payment of benefits - Lump sum or instalment payments - Appeals and judicial review - Boards and tribunals - Evidence

Monday, July 24, 2017 @ 8:12 AM  


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Appeal by the Workers’ Safety and Compensation Commission from a judicial review judgment ordering the Appeals Tribunal to rehear an appeal of a calculation of a lump-sum pension payout. The respondent, Lewis, was injured at work and entitled to a monthly pension. He received an initial lump-sum payment to retire his mortgage and sought calculation of the residual for another lump-sum payment to purchase a vehicle. The Commission calculated the value of the residual at $49,657. The Commission advised that it used a formula involving a discount rate and actuarially determined life expectancy based on general population mortality tables. The respondent believed the residual value was worth $262,453. He appealed the Commission's calculation to the Workers’ Compensation Appeals Tribunal. The Tribunal ruled the Commission's methodology of calculation was reasonable and employed without error. The respondent sought a rehearing based on his own actuarial evidence regarding the appropriate mortality rate. The Tribunal rejected the request. On judicial review, the chambers judge found the Tribunal unreasonably relied on the Commission's statistical assumptions and unreasonably failed to recognize the significance of the new actuarial evidence. The chambers judge ordered the Tribunal to rehear the respondent's application. The Commission appealed.

HELD: Appeal dismissed. The Commission had a wide statutory discretion over the actuarial assumptions to be used when calculating a lump-sum payment. It was entitled to select mortality tables that it concluded reflected its own experience without justification of its policy and statistical assumptions. It was not unreasonable for the Tribunal to review the decision of the Commission without examining the sources of the underlying statistical information. The chambers judge should not have set aside the Tribunal's decision on the basis the Commission was required to prove the validity of its statistical assumptions. However, the newly acquired actuarial report was clearly in the nature of fresh evidence, and was of a different character than the lay opinions that the respondent was able to give when he was self-represented. It was open to the chambers judge to determine that it was unreasonable for the Tribunal to refuse to consider the new report. There was no overriding error in the direction to rehear the respondent's application in a limited manner, following disclosure of the Commission’s data on its actual mortality experience.

Workers' Safety and Compensation Commission v. Lewis, [2017] N.W.T.J. No. 55, Northwest Territories Court of Appeal, J. Watson, F.F. Slatter JJ.A. and S.H. Smallwood J. (ad hoc), July 11, 2017. Digest No. TLD-July242017001