Decision-making Policy 21-113 | Effective Date: February 20, 2024

Policy 

The Workers’ Compensation Act (WC Act) gives WorkSafeNB exclusive jurisdiction to examine, investigate, and make decisions on all matters related to the workers’ compensation system.

Workers and employers are required by the WC Act to co-operate with the decision-maker’s efforts to gather information by providing information as needed.

WorkSafeNB uses a disciplined decision-making process, based on case law and statutory rules of evidence, for all of its decisions, including decisions related to:

• Conditions for entitlement;
• Compensation payable;
• Medical aid; and
• Rehabilitation.

Interpretation 

Decision-making Process

1. WorkSafeNB uses an inquiry model in its decision-making process which requires the decision-maker to gather information and follow a disciplined and consistent approach to making impartial, fact-based decisions. This discipline has four steps:

• Gathering Information;
• Establishing evidence;
• Weighing evidence; and
• Determining and applying facts within the context of legislation and policy to make the decision. 

Gathering Information

2. Throughout the investigation process, WorkSafeNB gathers information to make informed decisions. If any gaps in information exist, it is the decision-maker’s responsibility to actively seek the missing information before making a decision.

3. Information includes the details of the case, which is the who, what, where, when, how, and why of the accident, circumstances surrounding the claim, or any other information related to an issue requiring a decision to be made.

4. WorkSafeNB may also obtain information and opinions to assist in determining the appropriateness of any medical aid and rehabilitation planning. For more information see Policy 25-014 Medical Aid Decisions.

Establishing Evidence

5. Once sufficient information is gathered, WorkSafeNB analyzes the information and makes judgements about the nature, credibility, and quality of that information. To become evidence in the decision, the information must be:

• Relevant - it helps prove or disprove a fact essential to the decision; and
• Reliable - its accuracy is measurable and is considered to describe the events with certainty.

6. Once information passes the test for being relevant and reliable, it can then be admitted as evidence to be weighed.

7. Evidence can be: 

• Direct, which is a first-hand account of events or circumstances and includes, verbal statements, and demonstrative evidence, such as an Application for Workers' Compensation Benefits, Employer Report of Injury or Illness, or medical records.
• Indirect is secondary evidence from which a conclusion is drawn and includes opinion evidence from experts (medical advisors), affidavit evidence, or documentary evidence, such as written correspondence or scientific literature. 

Weighing Evidence

8. The standard of proof for workers’ compensation decisions is based on a preponderance of evidence – is it more likely than not, except when a presumption applies.

9. To rebut a presumption and weigh evidence, decision-makers must clearly state any evidence to the contrary. For more information see Policy 21-100 Conditions for Entitlement – General Principles.

10. When addressing conflicting evidence, including conflicting medical evidence, WorkSafeNB evaluates the credibility and quality of the evidence provided or gathered and considers the following criteria:

• The logical conclusion of fact from the evidence (i.e., which evidence is more relevant and reliable?);
• The expertise of the individuals providing the opinions as it relates to the issue under evaluation, bearing in mind the standard of proof in the WC Act in 7(2.1) differs from scientific standards employed by medical experts;
• Direct evidence is likely to be more reliable than indirect evidence;
• Objective evidence is likely to be more reliable than subjective evidence, especially when objective evidence supports corroborating opinions between multiple observers;
• The timeline of evidence being compared (i.e., earlier accounts are likely more accurate); and/or
• The credibility of scientific studies, including whether they used evidence-based research and have been referenced by a qualified medical provider. For more information see Policy 25-014 Medical Aid Decisions.

11. WorkSafeNB decision-makers may ask medical advisors or other medical professionals, such as psychologists, to provide their professional clinical opinions in cases where clinical history does not align fully with either the mechanism of injury, physical findings, investigations or the degree of impairment or disability reported by a worker. In these cases, the clinical professional provides a documented opinion with respect to the medical condition and addresses any specific questions asked by the decision-maker using principles of evidence-based medicine.

12. It is the responsibility of WorkSafeNB decision-makers to weigh these opinions along with other evidence, including conflicting medical opinions, as outlined in this policy. 

Determining and Applying Facts

13. Once the evidence has been established, the decision-maker concludes the facts and applies those facts within the context of legislation, including to any presumptions that exist, and WorkSafeNB policy.

Communicating Decisions

14. WorkSafeNB communicates decisions in writing to the worker and, when necessary, the employer.

15. Decision letters should:

• State the decision(s);
• State the evidence considered in the decision-making process;
• Explain the reasons for the decision(s), the facts considered, and describe how legislation and policies were applied in the decision-making process;
• Clearly state the evidence to the contrary;
• Explain why WorkSafeNB placed more weight on certain evidence in the decision-making process;
• Advise all appropriate parties of their right to appeal the decision.

Previous policy

• Decision-making release 4, effective January 17, 2019.
• Decision-making release 3, effective December 7, 2016.
• Weighing Information release 2, effective October 31, 2013.