2010 ABQB 280, 2010 ABQB 280

Court of Queen ’ s Bench of Alberta Citation: Watson v. Alberta (Workers ’ Compensation Board), 2010 ABQB 280 Date: 20100427 Docket: 0903 05466, 0903 15376 Registry: Edmonton In the Matter of

Section 13.4 of the Workers ’ Compensation Act , R.S.A. 2000, c. W-15 (“ WCA ”) And In the Matter of a Decision by the Appeals Commission of April 3, 2009, Decision No.: 2009-322, Established under the WCA in Respect of the Workers’ Compensation Board’s Claim File 402 8182 Action: 0903 05466

Between: Patricia Watson Appellant/Applicant - and - The Workers ’ Compensation Board and Appeals Commission for Alberta Workers ’ Compensation Respondents Action: 0903 15376 In the Matter of

Section 13.4 of the Workers ’ Compensation Act , R.S.A. 2000, c. W-15 (“ WCA ”) And In the Matter of a Decision by the Appeals Commission of April 3, 2009, Decision No.: 2009-322 Established Under the WCA in Respect of the Workers’ Compensation Boards (“WCB”) Claim File 402 8182 Between: Patricia Watson Appellant/Applicant - and- The Workers ’ Compensation Board and Appeals Commission for Alberta Workers ’ Compensation Respondents

_______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ I. Nature of the Application [ 1 ] The Applicant applies for judicial review of and appeals, pursuant to s. 13.4 of the Workers’ Compensation Act , R.S.A. 2000, c.

W-15 ( WCA ), from two decisions of the Appeals Commission: the first dated October 31, 2008, in which it held that the Dispute Resolution and Decision Review Body (“DRDRB”) has the power to reconsider its own decisions but that its June 21, 2007 letter and June 27, 2007 reconsideration decision were invalid as being an improper exercise of that power; and the second dated April 3, 2009, in which it awarded the Applicant partial disability benefits from July 12, 2007 up to the date the Workers’ Compensation Board (“WCB”) identified suitable employment for her but denied her temporary total disability benefits.

II. Background [ 2 ] In 1998, the Applicant was employed as an administrative payroll clerk. In July 1998, she began to experience right arm pain from work and in March 1999 filed a claim with the WCB.

The WCB accepted responsibility for her bilateral neck and shoulder strain and right arm tendonitis, and after being directed to do so by the Appeals Commission in a decision dated April 24, 2006, eventually accepted responsibility for her bilateral myofacial pain and fibromyalgia. [ 3 ] By letter dated May 23, 2007, the WCB case manager confirmed her decision that the Applicant was entitled to an economic loss payment, effective May 1, 2007, based on her pre-accident earnings of $34,247.43 per year.

The case manager deemed the Applicant capable of working as a general office clerk for 20 hours per week at a salary of $12.00 per hour. Pursuant to WCB Policy 04-04 Pt. II, App. 3, the Applicant’s economic loss payment was paid at 90 percent of her pre-accident earnings less her deemed post-accident salary. [ 4 ] The Applicant requested that the DRDRB review the case manager’s decision.

In a decision dated June 18, 2007, the DRDRB overturned that decision, finding that while the Applicant was fit for some level of employment, the position of general office clerk was not an appropriate position on which to base her wage loss payments. The DRDRB awarded the Applicant temporary total disability (“TTD”) benefits from August 31, 2004 until an appropriate deemed employment position was identified. [ 5 ] In a letter to the Applicant’s counsel dated June 21, 2007, the DRDRB’s resolution specialist who issued the June 18, 2007 decision stated that she had identified an error in her decision.

She advised that while she agreed that the WCB’s customer service department had not correctly identified an employment position for the Applicant that would accommodate her restrictions, she must give them the opportunity to do so. She further stated that when a person is eligible for any level of employment, and is no longer in treatment, they are not eligible for TTD benefits. [ 6 ] On June 21, 2007, the DRDRB resolution specialist wrote to the Applicant and stated that she had made an error in the June 18, 2007 decision.

She indicated that she had made an error in awarding TTD benefits and that under WCB Policy 04-02 a worker is not eligible for TTD benefits when she is capable of resuming suitable employment. The resolution specialist stated that the WCB’s customer service department would investigate to find an alternate position on which to base the Applicant’s wage loss benefit. [ 7 ] The DRDRB then issued a formal “reconsideration decision” on June 27, 2007, reversing its June 18, 2007 decision, restoring the case manager’s decision and denying the Applicant TTD benefits beyond August 23, 2002.

[ 8 ] In a letter dated July 4, 2007, Ken Penonzek, counsel for the Applicant, asked the DRDRB resolution specialist to reconsider her June 27, 2007 decision. [ 9 ] By way of letter dated July 19, 2007, the WCB case manager deemed that the Applicant was employable on a part-time basis as an order desk clerk for party supplies, at a starting salary of $6.00 per hour in 2004, with her salary increasing to $9.00 per hour effective August 1, 2007. She provided the Applicant with an “economic loss payment” based on her deemed ability to earn these wages.

The Applicant was notified of a correction to the economic loss payment calculation in a letter dated July 24, 2007. [ 10 ] On September 11, 2007, the Applicant requested that the DRDRB review the case manager’s July 19, 2007 decision. [ 11 ] The DRDRB upheld the case manager’s decision on October 24, 2007.

It accepted that the part-time position of an order desk clerk for party supplies at a salary of $8.00 per hour from August 1, 2007 was suitable for the Applicant. [ 12 ] By Notice of Appeal dated October 30, 2007, the Applicant appealed to the Appeals Commission with respect to the following aspects of the identified DRDRB decisions:– June 18, 2007 decision · that Applicant was fit for some level of employment · entitlement to full benefits after August 31, 2004; · identification of suitable employment; June 21, 2007 letter · not eligible for TTD benefits; · finding the Applicant was capable of part-time employment June 27, 2007 decision · TTD benefits beyond August 23, 2002; · wage replacement benefits beyond August 23, 2002; · eligibility for part-time sedentary employment; · DRDRB’s jurisdiction to reconsider its own decisions on the claim.

October 24, 2007 decision · finding the Applicant had the ability to obtain part-time employment as an order desk clerk in party supplies. Issues includes suitability of position, hours and rate [ 13 ] After receiving written submissions from the Applicant and the WCB, the Appeals Commission issued a “Preliminary Matter Decision” on October 31, 2008, dealing exclusively with the issue of the DRDRB’s reconsideration authority. The Appeals Commission concluded that the DRDRB shared the WCB’s power of reconsideration under s.17(3) of the WCA .

[ 14 ] In the same decision, the Appeals Commission held that the DRDRB’s June 21, 2007 letter and June 27, 2007 reconsideration decision were invalid as they did not constitute a proper exercise of the DRDRB’s reconsideration power. The Appeals Commission determined there was no apparent or disclosed basis (i.e. no new evidence) that warranted the DRDRB reconsidering its June 18, 2007 decision and the DRDRB did not afford the Applicant an opportunity to respond to its grounds for reconsideration.

The Appeals Commission concluded that the June 21 and 27, 2007 reconsideration decisions of the DRDRB were null and void but its June 18, 2007 decision remained valid.

As a result, only the June 18, 2007 and October 24, 2007 DRDRB decisions were subject to the Applicant’s Notice of Appeal. [ 15 ] On November 18, 2009, the hearing chair of the Appeals Commission wrote to counsel for the WCB and counsel for the Applicant confirming the Applicant was not appealing the June 18, 2007 DRDRB decision granting her entitlement to TTD benefits until suitable work is identified and, accordingly, the WCB could implement that aspect of the DRDRB decision.

The other issues identified in the Notice of Appeal would be dealt with by the appeal panel. [ 16 ] The Appeals Commission heard the appeal on March 27, 2009 and issued its decision on April 3, 2009.

It concluded that:– · The position of office clerk party supplies is not a reasonable one. · While the evidence indicated the Applicant was capable of some degree of employment, the WCB had not specifically addressed the types of “competitive” employment in which she might be able to engage. · The WCB was directed to perform updated functional capacity evaluations and to update the possible vocational choices available to the Applicant, having regard to the very restricted areas of employment open to her. · It was premature to state that the Applicant should be paid TTD benefits from July 2007 as there were indications she could have applied herself to some employment.

As contingent interim relief, until the functional capacity evaluation and vocational assessments were updated, the Applicant’s benefits should be based on working 20 hours per week at minimum wage from July 17, 2007 until the WCB identifies suitable employment.

After the updates are completed (to be within 12 months of the Appeals Commission decision), the WCB was directed to re-adjudicate whether the worker also should be provided with TTD benefits from July 17, 2007 because she is not capable of competitive suitable employment. [ 17 ] The Applicant has applied for judicial review of and appeals from the Appeals Commission’s Preliminary Matter Decision and its April 3, 2009 decision. III. Issues [ 18 ] The issues before this Court are as follows:– A. Whether the Appeals Commission erred in finding that the DRDRB has the jurisdiction to reconsider its own decisions? B.

Whether the Appeals Commission erred in addressing the issue of whether the Applicant was entitled to TTD benefits until suitable employment was identified? C. Whether the Appeals Commission was unreasonable in directing that the WCB base the Applicant’s benefits on her assumed employment of 20 hours per week at minimum wage?

[ 19 ] The appropriate standard of review will have to be determined for each of these issues. IV. Law Relating to Standard of Review [ 20 ] The first task of the Court on an application for judicial review or an appeal from the decision of an administrative tribunal is to determine the standard of review which should be applied in relation to each of the questions in issue. As a result of the Supreme Court of Canada’s decision in Dunsmuir v.

New Brunswick , 2008 SCC 9 at para. 62 , [2008] 1 S.C.R. 190 , the “functional and pragmatic approach” to judicial review has been replaced by the standard of review analysis, which requires that the Court select and apply one of two standards of review – correctness or reasonableness. [ 21 ] The standard of review analysis involves two steps. First, the reviewing court is to ascertain whether the jurisprudence already has satisfactorily determined the degree of deference to be accorded the tribunal with regard to a particular category of question.

Second, where the jurisprudence has not yet determined the applicable standard, the court must conduct an analysis of the factors making it possible to identify the proper standard of review: Dunsmuir at para. 62 .

These factors include the presence or absence of a privitive clause, the purpose of the tribunal, the nature of the question in issue, and the expertise of the tribunal: Dunsmuir at para. 64 . [ 22 ] The court in Dunsmuir also offered the following guidance for determining the appropriate standard of review:– · The existence of a privative clause gives rise to a strong indication of review pursuant to the reasonableness standard (para. 52); · Where the question is one of fact, discretion or policy, or where the legal and factual issues are intertwined and cannot readily be separated, deference will usually apply automatically (para. 53); · Where the tribunal is interpreting its own statute or statutes closely connected to its function, or where it has developed particular expertise in the application of a general common law or civil law rule in relation to a specific statutory context, deference will usually apply (para. 54); · The correctness standard must apply to questions of law that are of central importance to the legal system as a whole and which are outside of the specialized area of expertise of the administrative decision-maker (paras. 55 and 60); · Tribunals must be correct in their determination of true questions of jurisdiction or vires ; that is, whether or not the tribunal had the authority to make the inquiry (para. 59); [ 23 ] In Gahir v.

Alberta (Workers’ Compensation Appeals Commission) , 2009 ABCA 59 at para. 13 , 448 A.R. 135 , the Alberta Court of Appeal summarized the standards of review identified in recent case law relating to decisions of the Appeals Commission:– a. Findings of fact, credibility and mixed fact and law are reviewed for reasonableness: Alberta (Workers' Compensation Board) v. Appeals Commission , 2005 ABCA 276 , 51 Alta. L.R. (4th) 237 , 371 A.R. 318 , (the " Davick " decision), at paras. 72-3; Chauvet v. Alberta (Workers' Compensation Board Appeals Commission) , 2007 ABCA 155 , 76 Alta.

L.R. (4th) 242 , 409 A.R. 17 at para. 20 . b.

Interpretation of workers' compensation policies, and the application of policies to particular fact situations are reviewed for reasonableness: Buckley v. Entz Estate , 2007 ABCA 7 , 71 Alta. L.R. (4th) 25 , 401 A.R. 231 at para. 22 . Whether a particular employee is entitled to compensation, and the level of that compensation, generally falls into this category: Alberta (Workers' Compensation Board) v. Alberta (Workers' Compensation Appeals Commission) , 2005 ABCA 235 , 44 Alta. L.R. (4th) 13 , 371 A.R. 62 (the " Schumaker " decision) at paras. 25-27; Chauvet at paras. 20, 28 .

c. The

interpretation of sections of the Act lying within the expertise of the Board or the Appeals Commission are reviewed for reasonableness, as is the application of that law to particular fact situations: Pasiechnyk v. Saskatchewan (Workers' Compensation Board) , 1997 CanLII 316 (SCC) , [1997] 2 S.C.R. 890 ; Buckley at para. 33 . d. True jurisdictional issues are reviewed for correctness: Lee v. Alberta (Workers' Compensation Board, Appeals Commission) , 2007 ABCA 225 , 79 Alta. L.R. (4th) 298 , 417 A.R. 370 at para. 18 [“ Lee (CA) ”] . V.

Analysis A Did the Appeals Commission Err in Finding that the DRDRB has the Jurisdiction to Reconsider its Own Decisions? 1. Standard of review [ 24 ] The WCB in the present case advances the same argument as it did before Acton J. in Lee v. Alberta (Workers' Compensation Board, Appeals Commission) , 2009 ABQB 677 , 15 Alta. L.R. (5th) 212 (“ Lee No. 2 "). She summarized that argument (at para. 25) as follows:– The WCB notes that s. 13.1 of the WCA confers on the Appeals Commission a broad authority to consider all matters arising from the appeal of a decision, including the jurisdiction of the review board.

It argues that the nature of questions (

a) and (

e) are not jurisdictional but rather ones of law. The WCB maintains that the Appeals Commission was interpreting sections of the Act lying within its area of expertise and, given the exclusive jurisdiction of the Appeals Commission recognized in s. 13.1 , there is a presumption that the appropriate standard of review is reasonableness.

It suggests that a Dunsmuir analysis also leads to the conclusion that the reasonableness standard applies. [ 25 ] As in Lee No. 2 , the WCB points out that in determining that the DRDRB had the legal authority to reconsider/rescind its own decisions, the Appeals Commission was deciding the DRDRB’s jurisdiction, and not its own.

It contends that this type of decision is properly characterized as one of law rather than of jurisdiction in the narrow sense and that a Dunsmuir contextual analysis should be performed. [ 26 ] The WCB notes that in Dunsmuir at para. 54 , the Supreme Court of Canada advised that a reviewing court should afford deference to a tribunal’s decision interpreting its own statute, with which it has a unique familiarity. [ 27 ] The WCB also cites Nolan v.

Kerry (Canada) Inc. , 2009 SCC 39 , [2009] 2 S.C.R. 678 , in which the Supreme Court of Canada stressed at para. 34 that: “... courts should usually defer when the tribunal is interpreting its own statute and will only exceptionally apply a correctness standard when

interpretation of that statute raises a broad question of the tribunal’s authority. [ 28 ] In Canada (Citizenship and Immigration) v. Khosa , 2009 SCC 12 , [2009] 1 S.C.R. 339 , Binnie J., for the majority, explained at para. 25 that with or without a privitive clause, deference is warranted where a particular decision has been allocated to an administrative tribunal rather than to the courts, even in terms of the tribunal’s

interpretation of its constitutive statute, because “‘there might be multiple valid

interpretations of a statutory provision or answers to a legal dispute and ... courts ought not to interfere where the tribunal’s decision is rationally supported’ ( Dunsmuir , at para. 41 ).” [ 29 ] The WCB argues that the sole and exclusive statutory function of the Appeals Commission is to “examine, inquire into, hear and determine all matters and questions arising under [the WCA ]” in respect of decisions from the DRDRB and that its commissioners have developed a specialized expertise in applying the WCA and WCB policy to issues arising under the WCA .

[ 30 ] I acknowledge that the Supreme Court of Canada in Dunsmuir at para. 59 indicated that the concept of “jurisdiction,” for the purpose of determining the appropriate standard of review, is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry.

The Court stated that true jurisdictional questions arise where the tribunal must explicitly determine whether its statutory grant gives it the authority to decide a particular matter, and it warned that reviewing judges should not improperly brand as jurisdictional, issues that doubtfully are so. [ 31 ] Nevertheless, I agree with Acton J. in Lee No. 2 at para. 28 that the question of whether the Appeals Commission erred in finding that the DRDRB had the jurisdiction to reconsider its previous decision is a true jurisdictional question and reviewable on a standard of correctness: Lee (CA) at para. 18.

There cannot be multiple valid

interpretations of the statutory provisions granting jurisdiction. A tribunal either has the jurisdiction to decide an issue or to take an action, or it does not. [ 32 ] I am unable to agree with the WCB that the question transforms into a mere issue of law when dealt with by a second level of tribunal.

However, if I am wrong in that regard, I would hold that the appropriate standard of review for this issue is correctness as the Appeals Commission has no greater expertise than the Court in determining the jurisdiction of the DRDRB and the Act provides for a right of appeal from the Appeals Commission to the Court on issues of law and jurisdiction. Both of these factors militate against any deference being accorded to the decision of the Appeals Commission on this issue. [ 33 ] The issue here can be equated with that in White v.

Alberta (Workers' Compensation Board, Appeals Commission) , 2006 ABQB 359 , 400 A.R. 183 , where the Court was asked to review the vires of a WCB policy. Although the Appeals Commission had ruled on that issue, the Court stated at para. 17:– The standard of review of the vires of a policy is correctness: United Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City) , [2004] 1 S.C.R. 485 , 2004 SCC 19 , at para. 5 ; O'Malley v. Calgary Separate School District No. 1 , [2006] A.J. No. 249 , 2006 ABQB 126 at paras. 43-58 .

That means that the Court will decide whether the policy is intra vires or not, and the Appeals Commission's views on the subject of vires are accorded no deference. 2. Jurisdiction of the DRDRB to reconsider its own decision (

a) Arguments of the parties [ 34 ] The Applicant contends that the power to reconsider must be found in the legislation. The WCB and Appeals Commission have specifically been given this power in ss. 17(3) and 13.1(7) respectively of the WCA , but the DRDRB has been given no such power.

The Applicant argues that the WCB cannot and did not delegate its power of reconsideration under s. 17 of the Act to the DRDRB. [ 35 ] The Applicant notes that the Court of Appeal in Lee (CA) at para. 31 clearly stated in the context of its discussion of the reconsideration power that it is a “faulty assumption that the CSRC [now the DRDRB] is exactly the same as the WCB.” [ 36 ] Lee No.2 is relied on by the Applicant as establishing that the DRDRB does not have explicit or inherent jurisdiction to reconsider any of its decisions which could be appealed to the Appeals Commission. [ 37 ] The WCB submits that the Appeals Commission was correct in finding that the DRDRB has the clear legal authority under the WCA to reconsider a decision of its own which has not yet been appealed to the Appeals Commission. [ 38 ] The WCB points out that s.17(3) of the WCA grants the “Board” a broad reconsideration power respecting any matter that it has dealt with and the power to rescind or amend any decision or order previously made by it.

The WCB submits that this section’s context within the WCA makes it clear that it applies equally to the DRDRB. While the DRDRB is not synonymous with the WCB, it is an intrinsic part of it, such that it shares in that authority.

[ 39 ] The WCB maintains that the Court of Appeal in Lee (CA) did not say that the DRDRB does not share residual powers and obligations granted to and imposed on other decision-makers in the WCB process. Rather, it decided that the Appeals Commission in the circumstances of that case was obligated to put its mind to and decide the issue of whether the CSRC could rescind its own decision. [ 40 ] The WCB submits that the Court in Lee No. 2 erred by applying the exclusio alterius principle to the exclusion of other more appropriate principles of statutory construction. It suggests that a fair, large and liberal construction and

interpretation that best ensures the attainment of its objects, as mandated the

Interpretation Act, R.S.A. 2000, c. I-8, s. 10 , necessarily leads to the conclusion that the DRDRB is an intrinsic part of and operates within the WCB. [ 41 ] The WCB contends that the DRDRB is a legislatively designated internal review process within the WCB and, in this respect, is quite distinguishable from the Appeals Commission, which is a separate, independent body.

It argues that the DRDRB is appointed by the WCB pursuant to s. 45(1) of the WCA , in contrast to the Appeals Commission, which was established by the legislature. [ 42 ] The WCB submits that Alberta Courts have acknowledged in the past that the DRDRB is the “internal” level of review in the WCB’s two-tiered review and appeal system: Davick at para. 1; Dilcox v. Alberta (WCB) , 2006 ABQB 596 at para. 14 , 49 Admin. L.R. (4th) 157 . [ 43 ] The WCB notes that, pursuant to ss. 45(1) and 119(1) of the WCA , it appoints certain of its employees to be review specialists of the DRDRB.

Sections 45(4) and 119(4) state that claims adjudicators who previously had made a decision in a matter that is the subject of a review by the DRDRB are not eligible to conduct a review in respect of that decision or matter. The WCB submits that these sections necessarily presume that DRDRB members are and have been WCB employees. It points out that review specialists of the DRDRB remain WCB employees, their remuneration is paid by the WCB, they are responsible to the WCB, and they report to the WCB.

In contrast, commissioners of the Appeals Commission are appointed by the Lieutenant Governor in Council under s.10(1) of the WCA and current WCB employees are expressly prohibited by s.10(2)(

a) from being appointed commissioners. [ 44 ] The WCB also indicates that salaries of appeals commissioners are set by the Lieutenant Governor in Council and are to be paid by the Minister (Minister of Employment and Immigration), although the Crown is reimbursed quarterly by the WCB from the Accident Fund. WCB employees, on the other hand, are paid directly as salaried employees by the WCB from the Accident Fund. [ 45 ] The DRDRB is established under

Part 4 of the WCA (Compensation Entitlement, Application and Payment), which deals with workers’ eligibility for compensation, the payment of compensation, investigation of claims, compensation for disability and death, and compensation to dependants of deceased workers. It is also discussed in

Part 7 of the Act (Accident Fund and Assessments), which deals with experience accounts, assessment procedures, reporting of wages and employers’ liability for premiums. The WCB suggests that this speaks to the DRDRB’s role as the internal component of the WCB review process, embedded within the operations of the WCB. [ 46 ] Conversely, the Appeals Commission is established under

Part 2 of the WCA , which is a self-contained part that deals exclusively with the composition and powers of the Appeals Commission. The WCB argues that if the legislature had intended the DRDRB to be similarly separate and distinct from the WCB, it could reasonably be expected to have treated the DRDRB in a similar manner and to have given it its own

part in the WCA . [ 47 ] The WCB refers to s.17 of the WCA , which states that “subject to

section 13.1, the Board has exclusive jurisdiction to examine, inquire into, hear and determine all matters and questions arising under this Act or the regulations.. .“.

Section 13.1 addresses the Appeals Commission’s jurisdiction to review decisions of the DRDRB. The WCB argues that if the DRDRB is not part of the WCB, s. 17 would serve no purpose, as decisions of WCB case managers and adjudicators are not directly appealable to the Appeals Commission (other than status determinations made under s.21(3)).

The s.17(1) limiting provision is only effective if the WCB’s exclusive jurisdiction, including that of the DRDRB, is limited by the Appeals Commission’s authority on appeal. [ 48 ] The WCB says that if the DRDRB is found not to be a part of the WCB, several major absurdities would result. For instance, s.13.3 of the WCA provides that the WCB is bound by decisions of the Appeals Commission. If s.17(3) did not include the DRDRB as part of the WCB, then the DRDRB would not be bound by decisions of the Appeals Commission.

That means that the Appeals Commission would be able to overturn a DRDRB decision and remit the matter back to the WCB’s customer service department; the

case manager could issue a decision according to the terms and directions of the Appeals Commission decision; and if that decision is submitted for review to the DRDRB, the DRDRB could overturn it, completely disregarding the Appeals Commission’s decision. [ 49 ] A second absurdity would be that the DRDRB would not be bound by WCB policy.

Section 13.2(6)(

b) provides that in the hearing of an appeal, the Appeals Commission is bound by the board of directors’ policy relating to the matter under appeal. Sections 46 and 120 contain no such section.

If it is found that the DRDRB’s powers are limited by s.46 and s.120, the decision of a case manager, who is bound by WCB policy, would be reviewable by the DRDRB, which would not be bound by that policy. [ 50 ] The WCB maintains that a third absurdity which would result if s.17 of the WCA does not extend to the DRDRB would be that the Appeals Commission could refer a matter back to the DRDRB, directing that it reconduct its review, and the DRDRB would be without jurisdiction to comply, having no statutory authority to reconsider its own decision.

Also, it would have no legal obligation to comply with a direction of the Appeals Commission issued under s.132(6) (

f) of the WCA . [ 51 ] The WCB says that a fourth absurdity is that if a party introduces new evidence after the DRDRB renders its decision, the DRDRB would not have the power to reconsider its decision. It notes that it does not have the authority to appeal a decision of the DRDRB to the Appeals Commission. [ 52 ] The WCB submits that even if the legislative scheme is not interpreted in such a manner that the DRDRB is recognized as sharing the WCB’s reconsideration power, the DRDRB’s key review role in the workers’ compensation scheme warrants a sufficiently wide

interpretation of its powers so as to permit it to reconsider its own decision in cases of new evidence or a legal error. Ultimately, workers’ entitlement to compensation is based on their meeting the criteria contained in the WCA , and the DRDRB has an obligation to strive to make “correct” decisions upon review. [ 53 ] The WCB also cites the unreported Court of Queen’s Bench of Alberta decision of Timothy Smith v. Claim Services Review Committee of the Workers' Compensation Board of Alberta (30 March, 1995) Edmonton 9503-01986 (Alta. Q.B.), in which Dea J. took into consideration WCB policy APP-2 (1-2), paragraph 02.(

c) in holding that the WCB, by means of this policy, had delegated to the CSRC the power to vary its own decision. The WCB contends that the current WCB Policy 01- 08 Parts I and II similarly states that the DRDRB has the authority to reconsider its own decisions. (

b) Reconsideration power of DRDRB [ 54 ] This issue is moot in terms of the present judicial review/appeal.

While the Appeals Commission found that the DRDRB does have the legal authority to reconsider its own decisions, the Appeals Commission vacated the DRDRB’s reconsideration decision on the basis that it was rendered in breach of natural justice and, therefore, was void. [ 55 ] In the event I am wrong in this regard, and as the parties presented extensive submissions in relation to this issue, I will proceed to address the matter of the DRDRB’s jurisdiction to reconsider its own decisions. [ 56 ] Section 17(3) of the WCA provides that “[t]he Board has authority to reconsider any matter that it has dealt with and to rescind or amend any decision or order previously made by it. [ 57 ] The WCB argues that the DRDRB is a part of the WCB.

I agree with that statement as far as it goes. However, as noted by the Alberta Court of Appeal in Lee (CA) at para. 31:– The Act provides for the creation of the CSRC as a review body with its own specific powers. If the Legislature intended it to be identical to the WCB itself, its very existence would be superfluous. The fact that the Act provides separately for the WCB and the CSRC makes it apparent that the one is not simply the other. [ 58 ] In fact, s. 46(2) of the WCA differentiates between the Board and the review body, stating: “[o]n receiving a request for a

review, the Board shall cause all the information in the Board’s possession in respect of the matter that is the subject of the review to be reviewed by the review body.”

Section 13.1(1), which outlines the powers of the Appeals Commission, also distinguishes between the Board and the review body. [ 59 ] The Court of Appeal in Lee (CA) specifically rejected the argument of the WCB that the review body’s rescission decision in that case had been made pursuant to s. 17(3) of the Act. [ 60 ] Section 46(5)(

b) of the WCA sets out the powers of the DRDRB on a review of a decision by a claims adjudicator relating to a claim for compensation. The review body is limited to confirming, varying or reversing any decision made in respect of the claim (emphasis added). I interpret the reference in this provision to “any decision” as being any decision of a claims adjudicator from which a review has been sought. In a broad sense, the Appeals Commission and this Court make decisions in respect of claims, but clearly those are not the types of decisions which the DRDRB can confirm, vary or reverse.

Nor would I interpret that phrase as extending to decisions of the DRDRB itself. If that was the intention, I would have expected similar language to be used as in ss. 13.1(7) and 17(3). [ 61 ] I reject the WCB’s argument that it has delegated its power of reconsideration to the DRDRB. As Acton J. indicated in Lee No. 2 at para. 44:– ... the WCB is not entitled to sub-delegate its power to reconsider any matter and to rescind previous decisions.

It is a rule of statutory construction that "[a] discretion conferred by statute is prima facie intended to be exercised by the authority on which the statute has conferred it and by no other authority ..." (John Willis, " Delegatus Non Potest Delegare " (1943) 21 Can. Bar Rev. 257 at 259). While this rule can be negatived by a contrary indication found in the language, scope or object of the statute, the WCB has not pointed to any such contrary indication in the legislation or administrative necessity for the sub-delegation.

Furthermore, the Court of Appeal in Lee (CA) rejected the notion that the Review Body is an alter-ego of the WCB. In any event, the WCB's power to rescind relates to its own decisions, not to those of the Review Body. Accordingly, even if it could sub-delegate its power to reconsider and rescind, it would only be with respect to previous decisions of the WCB. [ 62 ] Acton J. in Lee No. 2 also considered whether the review body has an inherent power to reconsider its own decisions. At para. 46, she noted:– There are cases where the courts have found an implied reconsideration power.

Generally, these have involved statutes where the power to reconsider has not been expressly granted to another tribunal, where there has been no appeal except on a question of law or where such a power has been necessary in order to give effect to the intention of the statute. No case has been cited which dealt with an implied power to rescind in the absence of reconsideration. [ 63 ] In Chandler v.

Alberta Association of Architects , 1989 CanLII 41 (SCC) , [1989] 2 S.C.R. 848 at para. 20 , Sopinka J., for the majority, stated in respect of administrative tribunals that:– As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances.

It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J. O. Ross Engineering Corp. , supra . [ 64 ] However, he recognized that the application of this rule must be more flexible in terms of the decisions of tribunals that are subject to appeal only on a point of law, commenting (at para. 21) that: “[j]ustice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal.” [ 65 ] Pursuant to s. 13.2(1) (

a) of the WCA , a person who has a direct interest in and is dissatisfied with a decision made by a review body under s. 46 may appeal the decision to the Appeals Commission. The appeal is not limited to questions of law. Although the Appeals Commission has determined in previous cases that the WCB is not “a person who has a direct interest” in a decision of the DRDRB, those decisions were based on the view that the DRDRB is simply a part of and can be identified with the WCB. If the WCB contends that the DRDRB has ignored or misapplied a WCB policy in one of its decisions, it may be that it can appeal as a person with a

direct interest in the decision, although I do not decide that point here. If new information has been obtained that may affect a DRDRB decision, that new information can be considered by the WCB and a fresh decision rendered by it. The DRDRB does not require the power to reconsider its own substantive decisions and, in my view, no such inherent jurisdiction should be implied. [ 66 ] Accordingly, I conclude that the DRDRB did not have the jurisdiction to reconsider (or rescind) its June 18, 2007 decision granting the Applicant TTD. B.

Did the Appeals Commission Err in Addressing the Issue of Whether the Applicant was Entitled to TTD Benefits Until Suitable Employment was Identified? 1. Standard of review [ 67 ] The Applicant argues that the Appeals Commission erred in addressing whether she was entitled to TTD benefits as it was clear she was not appealing that aspect of the DRDRB’s June 18, 2007 decision. [ 68 ] The WCB argues that this is not a jurisdictional issue but rather an issue where the Appeals Commission applied facts to policy. As a result, it suggests that the standard of review should be reasonableness.

The WCB notes the Applicant was appealing whether she was fit for some level of employment and identification of suitable employment. The Appeals Commission concluded that she was fit for some employment. Therefore, it was bound by Board policy to refuse her TTD benefits. [ 69 ] In my view, this is a jurisdictional question reviewable on a standard of correctness. The issue is similar to one before Acton J. in Lee No. 2.

She determined in that case (at para. 29) that:– The second issue under appeal is whether the Appeals Commission could consider the merits of the February 6, 2002 Review Body decision when that decision had never been appealed to it. Again, I am of the view that this is a true jurisdictional question as it relates to the ability of the Appeals Commission to embark on the inquiry. This issue too is subject to review on the correctness standard 2.

Jurisdiction of the Appeals Commission to address the TTD benefit issue [ 70 ] In its June 18, 2007 decision, the DRDRB identified the issue before it as being whether the Applicant was entitled to TTD benefits beyond August 23, 2002. It found that the Applicant was fit for some level of employment, but the WCB had not identified an appropriate position on which to base her wage loss payments.

The DRDRB noted that WCB Policy 04-02 indicated that a person is eligible for TTD payments while they have restrictions “which prevent the worker from resuming pre-accident employment or other suitable employment.” It awarded her TTD benefits from August 31, 2004 until a suitable position on which to base her wage loss payments was identified. [ 71 ] On July 19, 2007, the WCB case manager deemed that the Applicant was employable on a part-time basis as an order desk clerk for party supplies, at a starting salary of $6.00 per hour in 2004, with her salary increasing to $9.00 per hour effective August 1, 2007 (subsequently adjusted to $7.00 per hour from September 2005 to August 2007 and $8.00 thereafter).

This decision was confirmed by the DRDRB on October 24, 2007. [ 72 ] The Applicant filed a Notice of Appeal on October 30, 2007 appealing the DRDRB’s June 18, June 21, June 27 and October 24, 2007 decisions. The Notice of Appeal identified as issues under appeal in terms of the June 18, 2007 decision: · that Applicant was fit for some level of employment;

· entitlement to full benefits after August 31, 2004; · identification of suitable employment. [ 73 ] The Applicant now contends that it was obvious she was not appealing the DRDRB’s decision that she was entitled to TTD benefits until suitable employment was identified, as it would not have been to her benefit to appeal that aspect of the decision. [ 74 ] Clearly, the Appeals Commission understood she was not pursuing an appeal of that issue. In correspondence dated November 19, 2008, the Appeals Commission confirmed its understanding “... that Ms. Watson and Mr.

Penonzek no longer wish to pursue an appeal of the June 18, 2007 DRDRB decision granting the worker’s entitlement to TTD benefits until suitable work has been identified.” It further stated: “[o]n this basis, there is no appeal-related barrier to the WCB implementing the June 18, 2007 DRDRB decision regarding the worker’s entitlement to TTD benefits. [ 75 ] The WCB proceeded to implement the DRDRB’s decision.

A letter dated January 12, 2009 from the WCB case manager to counsel for the Applicant confirmed that the Applicant was paid TTD benefits from September 1, 2004 to July 19, 2007, the last installment having been paid on December 4, 2008. [ 76 ] At the appeal hearing on March 27, 2009, counsel for the Applicant confirmed the following issues were under appeal:– The issues of appeal would be whether she is fit for some level of employment, the eligibility for home – sorry, look at my form here, remember which ones have already been set aside.

The ability for her to attain part-time employment as an order desk clerk, party supplies, including the suitability for the position, the hours, and the rate. The Chair: Okay. That’s what I understood, whether she’s fit for full-time – well, fit for employment at all, and then whether she should be deemed in that part – or order desk party supply job. Okay. [ 77 ] In its decision of April 3, 2009, the Appeals Commission properly identified the issues being appealed by the Applicant as:– Issue 1: Is the worker fit for some level of employment?

Issue 2: Is the worker appropriately deemed in the position of part-time employment as an order desk clerk in party supplies? [ 78 ] The Appeals Commission concluded that the position of office clerk party supplies was not a reasonable one when taking into account all relevant factors and that the WCB had not created a vocational plan for the Applicant or addressed the types of competitive employment in which she might be able to engage.

Until the WCB updated her functional capacity evaluations and vocational choices, the Appeals Commission said that it was not prepared to say the Applicant had been incapable of work since 2007 and should be paid TTD from July 2007, although it did not foreclose the possibility that such a decision would be the end result of the evaluations.

It directed that as an interim measure the Applicant should receive benefits based on her occupying a 20 hour per week position at minimum wage until suitable employment is identified by the WCB. [ 79 ] The Appeals Commission stated:– It is our understanding that the worker had previously been paid TTD benefits up to July 17, 2007 while the worker’s representative enforced a DRDRB decision and set aside some reconsideration decisions. That is why we have chosen the effective interim date to be July 17, 2007.

[ 80 ]

Section 13.1(1) (

a) of the WCA provides that the Appeals Commission has exclusive jurisdiction to examine, inquire into, hear and determine all matters and questions arising in respect of appeals from decisions under

section 46 made by a review body. [ 81 ] In my view, as the Applicant did not appeal from the DRDRB’s decision that she should receive TTD until suitable employment was identified, it did not have the jurisdiction to address that issue or to alter the DRDRB’s award in that regard.

What was left to be determined on the appeal was whether the Applicant was fit at all for employment and, if so whether employment as an order desk clerk in party supplies was suitable employment. [ 82 ] Given that the Appeals Commission concluded suitable employment had not yet been identified for the Applicant, I find that it acted without jurisdiction in directing that the Applicant’s benefits be reduced to reflect her occupying a 20 hour per week position at minimum wage, even as an interim measure. C. Was the April 3, 2009 Decision of the Appeals Commission Unreasonable? 1.

Standard of review [ 83 ] I have already determined that the Appeals Commission was without jurisdiction to vary the DRDRB’s award of TTD benefits. However, in the event that I am wrong in that regard, I will address the Appeals Commission’s direction that, as an interim measure, the Applicant’s benefits should reflect a deemed position of 20 hour per week paying minimum wage. I will also address the reasonableness of the rest of its conclusions. [ 84 ] The April 3, 2009 decision of the Appeals Commission involved the

interpretation of the WCA and workers' compensation policies and the application of those policies to the fact situation in this case. As such, it is reviewable on a standard of reasonableness. [ 85 ] The reasonableness standard reflects that certain questions before a tribunal may give rise to a number of possible, reasonable conclusions within a range of acceptable and rational outcomes.

In determining whether a decision is reasonable, the Court is to consider the existence of justification, transparency and intelligibility in the decision-making process: Dunsmuir at para. 47 . [ 86 ] The Supreme Court of Canada’s merging of the two previous standards of patent unreasonableness and reasonableness into the one standard of reasonableness is not to be taken as an invitation for greater judicial scrutiny. The reasonableness standard is a deferential one.

Deference: – · “is both an attitude of the court and a requirement of the law of judicial review” ( Dunsmuir at para. 48 ) · “imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law” ( Dunsmuir at para. 48 ) · “recognizes the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime” ( Dunsmuir at para. 49 ) · “requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, and for the different roles of the courts and administrative bodies within the Canadian constitutional system” ( Dunsmuir at para. 49 ). [ 87 ] The Alberta Court of Appeal in Lehigh Inland Cement Ltd. v.

Cement, Lime, Gypsum & Allied Workers Division

(International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local Lodge D359) , 2008 ABCA 128 at para. 9 , 433 A.R. 194 stated that an application of the reasonableness standard requires the reviewing court to determine whether the reasons given by the tribunal adequately support its decision. A decision will be considered reasonable if, on a somewhat probing examination, its reasons exhibit a line of analysis that could reasonably lead from the evidence to its conclusion. If the reasons can stand up to a somewhat probing examination, the decision is not unreasonable. 2.

Arguments of the Parties [ 88 ] The Appeals Commission agreed with the Applicant that the position of office clerk party supplies was not a suitable one for her in the circumstances. [ 89 ] The Appeals Commission said that it was not prepared to reach a conclusion on the Applicant’s fitness for employment.

Instead, it directed that, within one year from the date of its decision, the WCB update its evaluation of the Applicant’s functional capacity and vocational choices. [ 90 ] The Applicant points out that in September 2006, the WCB noted that employment within her restrictions may not exist and that 3.5 years later the WCB has still not identified suitable employment. She suggests the reason why it has been unable to do so may be because suitable employment does not exist, given her limitations. [ 91 ] There is no indication that the Applicant objects to participating in further functional capacity evaluations.

Her real objection is to the Appeals Commission reducing her benefits to reflect her occupying a 20 hour per week position at minimum wage, even as an interim measure until the necessary evaluations have been completed. [ 92 ] The Applicant argues that the purpose of the WCA is to compensate workers for their earnings lost as a result of an injury. She submits that there is no reason for her benefits to be reduced or withheld while the WCB continues its search for suitable employment for her.

She also contends that there is no evidence she can actually earn the amount attributed to her by the Appeals Commission. [ 93 ] The WCB maintains that it was reasonable for the Appeals Commission to award the Applicant temporary partial disability (“TPD”) benefits based on her working 20 hours per week at minimum wage from July 12, 2007 up to the date when the WCB identifies suitable employment for her.

It asserts that this decision is consistent with WCB policy as the Appeals Commission found that the Applicant met the definition of temporary partial disability and there was evidence on the claims file that she did have some residual capability to be engaged in some suitable employment, but for no more than 20 hours per week.

It suggests that the Applicant meets the criteria of having compensable temporary work restrictions but with the physical and medical capability of returning to a suitable job. [ 94 ] The WCB submits that the Applicant did not meet the policy criteria of having a temporary total disability. It says that it was appropriate for the Appeals Commission to estimate her earning capacity for the purpose of setting her compensation rate as she was not employed at the time. 3.

Reasonableness of the Decision [ 95 ] The Appeals Commission determined that the issues of whether the Applicant was fit for some level of employment and whether she was appropriately deemed to be employed part-time in the position of an order desk clerk for party supplies were inter- related and should be dealt with together. [ 96 ] It reviewed the evidence of the Applicant’s attempts to return to employment, a 2006 return to work assessment, a 2006 Canada Pension Review Tribunal decision, labour market analysis reports and the medical evidence on file, including reports from her treating physician saying she was incapable of any employment duties and a June 21, 2006 memo expressing the opinion that it would do a considerable medical disservice to the worker to assess her as incapable of attending the workforce in a modified capacity, on a lifelong basis as “fibromyalgia is a condition that is noted to deteriorate with decreased use of the affected musculature.

[ 97 ] The Appeals Commission acknowledged the Alberta Court of Appeal’s decision in Gahir , in which the Court differentiated between functional capacity and employability, and commented that “[m]ere theoretical functional capacity that is not economically competitive does not amount to employability.” The Alberta Court of Appeal in that case also noted that the ability of the WCB to deduct any potential earnings from the appellant’s benefits would likely depend on it identifying suitable employment for the appellant. [ 98 ] The Appeals Commission in the present case recognized that the Applicant has permanent substantial work restrictions.

It noted that medical reports suggested she has some residual capacity to be engaged in suitable employment for a maximum of 20 hours per week, but that the worker’s actual work experience threw doubt on the extent to which she can work and on what basis. [ 99 ] The Appeals Commission advised that it saw some ability for the Applicant to continue with employment if appropriate vocational assistance and job supports are put in place, but an effective vocational plan was not in place and there was no indication she had been provided with the requisite vocational support to actually have her competitively perform the employment she attempted, taking into account her disabilities. [ 100 ] The Appeals Commission considered it premature to say the Applicant should be paid TTD benefits from July 2007 as there were indications she could have applied herself to “some” employment.

It awarded the Applicant TPD benefits as an interim measure and directed that the WCB top that up to the level of TTD benefits from July 17, 2007 if, after completing the vocational update and other necessary evaluations, the WCB factually determined the Applicant was incapable of competitive suitable employment. [ 101 ] In finding that the Applicant has permanent substantial work restrictions, the Appeals Commission was finding that her functional capacity is permanently impaired.

That does not necessarily mean that she has a permanent disability. [ 102 ] WCB Policy 04-04 states that: “A worker is considered to have a permanent disability when a work injury results in a permanent impairment of earnings capacity due to compensable work restrictions.” A disability for purposes of the WCA requires impairment of earnings capacity, not simply of functional capacity. [ 103 ]

Section 63 of the Act provides that:– 63.

In determining the degree of impairment of earning capacity, the Board may consider as a factor the nature of the injury and the physical and mental fitness of the worker to continue in the employment in which the worker was injured or to adapt himself or herself to some other suitable employment. [ 104 ] Clearly, the Applicant’s fitness to adapt herself to some suitable employment was relevant. [ 105 ] The Appeals Commission found that a suitable position had not been identified for the Applicant, although there was some capacity for her to continue with employment if appropriate vocational assistance and job supports were put in place.

It recognized that no such vocational assistance had been offered since her unsuccessful attempt at employment in 2002-2003. [ 106 ] Board Policy 04-05 states that a worker is considered employable when suitable work has been identified which the worker is capable of performing.

Suitable work is defined as work that can be performed without endangering the worker’s recovery or the safety of the worker or others; the worker has the necessary vocational skills to do; and is reasonably available in a location to which the worker may reasonably commute or relocate. [ 107 ] The Court of Appeal in Gahir concluded that “employability” requires both capacity and identification of suitable employment, commenting at para. 28:–

... it is difficult to envision how the Board could reasonably conclude that a worker is capable of employment, if the Board is unable to point to some category or type of employment that is reasonably available and that the worker could actually perform... A mere finding of functional capacity is not enough. Employability under the system must not just be theoretical, but must be based in reality. [ 108 ] The worker in Gahir sustained injuries which resulted in permanent disability and which the WCB accepted were work- related. The worker was given TTD benefits and then sent to a return-to-work program.

At the conclusion of the program, the case manager determined that the worker was fit to work as a tow truck dispatcher. When the worker did not find suitable employment, the WCB reduced his TTD benefits by the amount he theoretically could earn if he worked in that position. The Appeals Commission found that the worker was fit for full-time sedentary employment within his work restrictions, but that he could not work as a tow tuck dispatcher.

It referred the file back to the Board to investigate other employment positions which might be suitable for the appellant. [ 109 ] The issue before the court in Gahir was whether the finding of the Appeals Commission that the worker was fit for full-time sedentary employment was reasonable. The court concluded that the Appeals Commission’s finding related only to the worker’s functional capacity and the decision to send the matter back to the Board for reconsideration of what might be suitable employment was reasonable.

However, it stressed (at para. 31) that the ability of the Board to deduct any potential earnings from the appellant's benefits would likely depend on the Board identifying such suitable employment. It sent the matter back to the Appeals Commission to determine if there should be some form of interim relief, commenting at para. 35:– It seems that there is a real possibility that the appellant is caught in a revolving door. There appears to be nothing to prevent the Board from repeatedly proposing alternative forms of employment, one at a time, and retroactively denying the appellant benefits.

His appeals to the Appeals Commission, even if successful, will provide him no relief. In the circumstances the Appeals Commission should have considered whether the appellant is entitled to interim relief, (and whether it should be wholly or partly retroactive) until such time as the Board identifies real prospects of employment for the appellant. [ 110 ] The Appeals Commission in the present case indicated it was premature to say the Applicant had been unemployable since July 2007.

In my view, however, that was the only reasonable conclusion that could have been drawn from the findings of the Appeals Commission and from Board policy. It was unreasonable for the Appeals Commission to speculate that the Applicant might have been competitively employable and for it to calculate the Applicant’s interim compensation as though she had the capacity to work part-time at suitable employment paying minimum wage when no suitable position had been identified.

It was unreasonable to penalize her, even on an interim basis, for failing to find a suitable position when the WCB was unable to identify such a position. [ 111 ] The Appeals Commission made no finding as to the Applicant’s future employability as it did not believe there was sufficiently up-to-date evidence on the claims file.

Accordingly, it could not assess what her eventual status might be; that is, whether she would resolve as being partially or totally disabled on a permanent or temporary basis. [ 112 ] In my view, it was reasonable for the Appeals Commission to seek a more up-to-date functional capacity evaluation and vocational assessment and to direct that the WCB then determine if the Applicant is competitively employable in a suitable position. Once that determination has been made, her benefits from that point on can be adjusted, if appropriate.

It would be unreasonable to compensate the Applicant at a level which is less than TTD until such time as or to retroactively adjust her benefits if some suitable position eventually is identified. VI. Conclusions [ 113 ] Pursuant to s. 13.4(11) of the WCA , on the hearing of an appeal from a decision of the Appeals Commission, the Court may confirm or set aside the decision or any part of it, and where it sets aside the decision, it may refer the matter back to the Appeals Commission for reconsideration in accordance with any directions the Court considers appropriate. [ 114 ] I have concluded that:– A.

The Appeals Commission erred in finding that the DRDRB has the jurisdiction to reconsider its own decisions. This aspect of its decision is set aside. However, given the issue was moot, it need not go back to the Appeals Commission for reconsideration.

B. The Appeals Commission made a jurisdictional error in varying the DRDRB’s award of TTD benefits until suitable employment is identified. This part of the decision is set aside. As the Appeals Commission did not have the jurisdiction to address this issue, it need not be referred back to it. C. It was unreasonable for the Appeals Commission to conclude it was premature to find the Applicant had been unemployable since July 2007.

Further, it was unreasonable for the Appeals Commission to reduce the Applicant’s compensation and effectively to penalize her for not working at suitable employment when the WCB had been unable to identify a suitable position for her. This part of the Appeals Commission decision is quashed. D. It was reasonable for the Appeals Commission to direct the WCB to update the Applicant’s functional capacity evaluation and vocational assessment in order to assist her in returning to the workforce or to help determine the extent of her future impairment of earnings capacity.

This aspect of its decision is confirmed. [ 115 ] The Applicant requests enhanced costs of the application and in assessing such costs, asks this Court to consider the history of the matter. [ 116 ]

Section 13.4(13) of the WCA provides that the Court may make any award as to the costs of the appeal that it considers appropriate. [ 117 ] The parties may speak to costs within 60 days of these Reasons. Heard on the 17 th day of February, 2010. Dated at the City of Edmonton, Alberta this 26 th day of April, 2010. Donald Lee J.C.Q.B.A. Appearances: Kenneth W. Penonzek for the Appellant Jason J.J. Bodner

for the Respondent The Workers’ Compensation Board Sandra Hermiston for the Respondent Appeals Commission for Alberta Workers’ Compensation