Norma Melanson Applicant - v. -, 2011 ABQB 104

Court of Queen ’ s Bench of Alberta Citation: Melanson v. Alberta (Appeals Commission for Alberta Workers ’ Compensation), 2011 ABQB 104 Date: 20110222 Docket: 1003 11244 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 No. 2010-33 by the Appeals Commission Established under the WCA in Respect of the Workers’ Compensation Board’s (“WCB”) Claim File No. 529 0652 Between: Norma Melanson Applicant - and - Appeals Commission for Alberta Workers ’ Compensation and the Workers ’ Compensation Board of Alberta Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________

Introduction [ 1 ] This is an application, brought under

section 13.4 of the Workers’ Compensation Act , R.S.A. 2000, c.

W-15 (“ WCA ”), for judicial review and appeal of the decision of the Appeals Commission for Alberta Workers’ Compensation (“Appeals Commission” or “Commission”), referenced as Decision No: 2010-33 and dated January 13, 2010 (“AC Decision”), in which it held, inter alia , that the Applicant’s aggravation following a work-related accident had resolved; that the low back problems (beyond April 10, 2008) were not attributable to compensable accident; and that consequently, the Applicant’s entitlement to vocational rehabilitation benefits and services were determined in the context of those findings.

The AC Decision upheld the decision of the Dispute Resolution and Decision Review Board (“DRDRB”) issued on October 30, 2008, in which the Applicant’s appeal was denied and all the earlier decisions of the Workers’ Compensation Board (“WCB”) that dealt with her claims were upheld. Facts [ 2 ] The Applicant, Norma Melanson, was employed as a painter by Bastell’s Painting Ltd. and during the course of her employment, suffered a work-related low back injury while carrying a toilet up a set of stairs on February 5, 2007 (the “compensable accident”).

She discontinued work on February 6, 2007, and was laid off work by her employer following the injury. [ 3 ] By correspondence dated April 3, 2007, the WCB advised that the Applicant’s claim was accepted for a back strain. On April 23, 2007, she commenced a four-week return-to-work program which ended on May 11, 2007 at LifeMark Health Centre (“LifeMark”). Significantly, a Return to Work Assessment conducted by LifeMark noted that the Applicant is fluent in French but not English. The discharge report stated that she was fit to work at a modified level, with temporary work restrictions.

The Applicant was paid “temporary total disability” (“TTD”) wage replacement benefits for the period of February 6 - May 11, 2007. [ 4 ] Subsequently, the Applicant was paid re-employment assistance benefits by the WCB from May 12, 2007 - June 26, 2007. These benefits were ended on June 27, 2007 when it was determined that she met the requirements of her pre-accident job as a painter. The Applicant requested a review of this decision on November 19, 2007 by a letter from her counsel dated November 21, 2007. [ 5 ] On May 31, 2007 (i.e. prior to the June 27, 2007 decision), the WCB requested Dr.

Banerji, a medical consultant, to conduct a review of the Applicant’s file. In his report he made reference to a medical status examination of April 17, 2007 by Dr. Kirwan which referred to the Applicant’s involvement in a renovation in her house. The Applicant denied any such involvement. In his report, Dr. Banerji attributed the Applicant’s symptoms to pre-existing conditions and home renovations rather than the compensable injury. [ 6 ] On January 7, 2008, the WCB arranged for an independent medical examination which was conducted by Dr. John Huckell, orthopaedic surgeon. In the report that followed, Dr.

Huckell opined that the Applicant’s February 5, 2007 accident resulted in a temporary aggravation of her pre-existing degenerative disc disease with some spinal stenosis. [ 7 ] On January 10, 2008, the Applicant was seen by Dr. Al-Ghamdi, orthopaedic specialist, who recommended further physiotherapy and pain medication; and indicated that she could return to modified employment. On March 19, 2008, the Applicant received epidural steroid from Dr.

Solty. [ 8 ] By letters dated February 21, 2008 and March 28, 2008, the WCB informed the Applicant’s counsel that it had accepted that the compensable accident caused the temporary aggravation of the pre-existing degenerative disc disease and stenosis in the lumbar spine. The WCB consequently referred the Applicant to further rehabilitative treatment from which she was discharged on April 9, 2008.

In a letter dated April 16, 2008, the WCB determined that the Applicant was fit for her pre-accident employment position as of April 10, 2008 and the case manager accordingly discontinued the TTD benefits as of April 10, 2008. [ 9 ] On April 25, 2008, the Applicant submitted a Request for Review to the DRDRB. The Applicant subsequently attended at

other medical service providers facilities. A progress report from June 9, 2008 and a letter dated June 11, 2008 from the Applicant’s GP, Dr. Tafi Madzimure recommended “desk job with sedentary employment” at that stage. The Applicant’s counsel submitted a written submission dated June 19, 2008 to the DRDRB on her behalf with respect to the TTD benefits. [ 10 ] On July 3, 2008 the Applicant underwent an independent medical examination with Dr. England, a specialist in orthopaedic surgery, having been referred by the WCB.

In his report, the specialist indicated that the Applicant’s presentation is not related to the compensable injury and that she can return to her date of accident work. [ 11 ] In a letter dated August 21, 2008, the WCB determined that the Applicant remained employable during the period June 27, 2007 to February 27, 2008 and would have been able to work in the category of retail salespersons and sales clerks. The WCB case manager indicated that the Applicant would be paid a wage loss benefit known as “temporary partial disability” (“TPD”) payment for the stated period.

The Applicant appealed this decision and requested that the WCB: accept responsibility for her ongoing low back problems beyond April 10, 2008; provide TTD benefits from June 27, 2007 through to February 27, 2008 and beyond April 10, 2008; determine that the position of retail salesperson/sales clerk used to estimate her post-accident earning capacity between June 27, 2007 and February 27, 2008 was unsuitable employment and provide further vocational services. [ 12 ] On October 30, 2008, the DRDRB issued its decision, denied the Applicant’s appeal and held that: her ongoing low back problems were not related to the compensable accident; the evidence did not support the payment of TTD to her from June 27, 2007 to February 27, 2008 and beyond April 10, 2008; her TPD benefit was appropriately based on the deemed earnings of a retail salesperson and sales clerk earning $10.15/hr for the June 27, 2007 - February 27, 2008 period.

The Applicant appealed this decision to the Appeals Commission. [ 13 ] On May 20, 2009 the Appeals Commission conducted a hearing of the Applicant’s appeal and issued its decision on January 13, 2010 which denied all issues of appeal.

It held that:– - the Applicant’s low back problems beyond April 10, 2008 were not attributable to the compensable accident; - the Applicant is not entitled to TTD benefits from June 27, 2007 through to February 27, 2008; - while the Applicant may remain with work restrictions that prevent her from returning to her date-of-accident employment beyond April 10, 2008, those restrictions are solely related to her pre-existing spinal pathology and not as a result of the compensable accident; - the Applicant is not entitled to TTD benefits beyond April 10, 2008; - the Applicant’s post-accident earning capacity is appropriately calculated based on the position of retail salesperson/sales clerk between June 27, 2007 and February 27, 2008; the Applicant is entitled to TPD benefits based on estimated earnings of $10.15/hr for this time period; and - the Applicant is not entitled to further vocational rehabilitation benefits and services. [ 14 ] The Applicant seeks judicial review/judicial appeal of the decision of the Appeals Commission.

Issues

[ 15 ] The Applicant framed four grounds of appeal which include whether the Appeals Commission: made findings in the absence of evidence; made errors of law or jurisdiction relating to the WCA ; erred in law and/or jurisdiction in relation to the application of the common law rules relating to causation; and whether its decision was correct or unreasonable, having regard to the facts and evidence.

Further, she submitted that the issue at the heart of her claim is causation, i.e. whether the Applicant’s symptoms and restrictions are causally related to her compensable injury. [ 16 ] The WCB submitted that it is clear from the Applicant’s arguments in her brief that the issues in the context of the within judicial review are: A. Whether the Appeals Commission erred in concluding that the Applicant's low back problems beyond April 10, 2008 were not attributable to the compensable accident; B.

Whether the Appeals Commission erred in finding that the Applicant was not entitled to TTD benefits from June 27, 2007 to February 27, 2008 and then beyond April 10, 2008; and C. Whether the Appeals Commission erred in basing the Applicant’s post-accident earning capacity is appropriately on the position of retail salesperson/sales clerk for the purpose of the TPD rate. [ 17 ] The Applicant did not dispute the issues as framed by the WCB. Consequently, I conclude that the issues as outlined above do capture the parties’ arguments and would be adopted for my analysis.

Standard of Review [ 18 ] On judicial review or judicial appeal, the reviewing court must determine the standard of review to be applied to the decision under review relative to the issues involved. The Supreme Court of Canada has revised the system of judicial review which now comprises two standards - correctness and reasonableness: Dunsmuir v New Brunswick , 2008 SCC 9 at para. 45 , [2008] 1 SCR 190. [ 19 ] Further in Dunsmuir , the Supreme Court established that the process of judicial review currently involves two steps (at para. 62):– . . .

First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question.

Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review. [ 20 ] In accordance with step one, there is existing jurisprudence from the Alberta Court of Appeal which has satisfactorily determined the applicable standards of review for the decisions of the Appeals Commission in respect of certain categories of questions. [ 21 ] The Alberta Court of Appeal in Gahir v Alberta (Workers’ Compensation, Appeals Commission) , 2009 ABCA 59 at para. 13 , 448 AR 135 held that:– ... the case law discloses that the following standards of review have been identified for reviewing 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 forreasonableness: Buckley v. Entz Estate, 2007 ABCA 7, 71 Alta. L.R. (4th) 25, 401 A.R. 231 at para. 22. Whether a particular employeeis entitled to compensation, and the level of that compensation, generally falls into this category: Alberta (Workers’ CompensationBoard) 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 forreasonableness, as is the application of that law to particular fact situations: Pasiechnyk v. Saskatchewan (Workers’ CompensationBoard), (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. [22] Recently in Schroder v Workers’ Compensation Board, 2010 ABCA 344 at para. 13, the Alberta Court of Appeal clarifiedthat:– ... the level of deference required by the reasonableness standard does not permit a reviewing court to re-weigh the evidence that wasbefore the Tribunal substituting its own preferred outcome for that of the Tribunal. In Canada (Citizenship and Immigration) v. Khosa,2009 SCC 12, [2009] 1 S.C.R. 339 at paras. 59 and 61: “Reasonableness is a single standard that takes its colour from the context.

One of the objectives of Dunsmuir was to liberate judicialreview courts from what came to be seen as undue complexity and formalism. Where the reasonableness standard applies, it requiresdeference. Reviewing courts cannot substitute their own appreciation of the appropriate solution, but must rather determine if theoutcome falls within ‘a range of possible, acceptable outcomes which are defensible in respect of the facts and law’ (Dunsmuir, at para.47). There might be more than one reasonable outcome.

However, as long as the process and the outcome fit comfortably with theprinciples of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferableoutcome. ...

I do not believe that it is the function of the reviewing court to reweigh the evidence.” [23] In my view, the existing jurisprudence from our Court of Appeal has already determined in a satisfactory manner the degree ofdeference to be accorded to the particular category of question which is raised in issue B above: i.e. whether the Appeals Commissionerred in finding that the Applicant was not entitled to TTD benefits from June 27, 2007 to February 27, 2008 and then beyond April 10,2008. The issue here is about entitlement to compensation.

The Court stated in Gahir that this kind of issue belongs to the category ofquestions that deal with the

interpretation of workers’ compensation policies, and the application of policies to particular fact situationswhich are reviewable on the standard of reasonableness: Buckley at para. 22; and that whether a particular employee is entitled tocompensation, and the level of that compensation, generally falls into this category: Schumaker at paras. 25-27; Chauvet at paras. 20,28.

I therefore conclude that the standard of review applicable to Issue B is reasonableness. [24] However, issues A and C above do not appear to attract the same level of existing jurisprudential clarity as Issue B, in relationto the applicable degrees of deference that should be accorded the Appeals Commission’s decisions on those categories of questions.Consequently, this court must proceed to the second step and analyse the factors making it possible to identify the proper standard ofreview for those issues. In order to do this for each issue, Dunsmuir at para 64 prescribes that:–

The analysis must be contextual ... (and) it is dependent on the application of a number of relevant factors, including: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by

interpretation of enabling legislation; (3) the nature of the question at issue, and; (4) the expertise of the tribunal. In many cases, it will not be necessary to consider all of the factors, as some of them may be determinative in the application of the reasonableness standard in a specific case.

Second Step - Issue A Nature of the question [ 25 ] In respect of the question whether the Appeals Commission erred in concluding that the Applicant's low back problems beyond April 10, 2008 were not attributable to the compensable accident (Issue A), the Applicant argues that the question involved is whether the aggravation of her pre-existing condition has resolved and there is a new causative factor for the symptoms and restrictions. That there is an extricable question of law in respect of the issue that calls for the proper

interpretation of the WCB Policy 03-02, the WCA , s. 24(4) and the common law rules regarding causation. She contends that the

interpretation would have precedential value for all workers and that the Appeals Commission’s decision in this respect should be reviewed on a standard of correctness: Dr. Q. v College of Physicians and Surgeons of British Columbia , 2003 SCC 19 , [2003] 1 S.C.R. 226 at paras 34-35 ; Dunsmuir at paras 162, 163 & 166 . [ 26 ] The WCB submits that the question raised in this issue is by nature one of mixed fact and law.

That it involved the Appeals Commission interpreting its parent statute or legislation and that reviewing courts shall afford deference to a tribunal’s decision interpreting its own statute: Dunsmuir at paras 54-55 ; Nolan v Kerry (Canada) Inc , 2009 SCC 39 , [2009] 2 SCR 678 at paras 33-35 ; Canada (Citizenship and Immigration) v Khosa , 2009 SCC 12 , [2009] 1 SCR 339 at para 25 .

The WCB argues that the Appeals Commission applied the facts of the Applicant’s WCB claim to WCB Policies and the relevant provisions of the WCA , and as such its decision on this issue of mixed fact and law attracts the standard of review of reasonableness. [ 27 ] The Appeals Commission in its submission on standard of review contends that our Court of Appeal concluded that the applicable standard of review for the question of causation is reasonableness: Shuchuk v Alberta (Workers’ Compensation Board) , 2007 ABCA 213 at paras. 32-33 , 409 AR 321.

It submits that the Appeals Commission in the present case applied the provisions of the WCA and WCB Policies; and specifically dealt with medical evidence and questions involving statutory

interpretation at the heart of the purpose of the WCA and at the core of the Commission’s expertise. [ 28 ] This case involves the

interpretation of the WCB Policy, the WCA and the application of both policies and law to the particular fact situations of the Applicant. The Court of Appeal has indicated that the Commission’s

interpretation and decision in this respect are reviewed for reasonableness: Gahir at para. 13 ; Buckley at paras. 22 and 33 . I also note that in respect of the role of common law principles of causation in the required analysis, the Court of Appeal held in Shuchuk at paras. 32-33 that: – ... certain questions involving the

interpretation of the Policy and the role that common law causation principles have in that analysis, may be extricated as legal questions. Policy

interpretation is similar to

interpretation of legislation ... ... ... these issues can be analysed generically... (and) the standard of review for them is reasonableness. [ 29 ] I find that the provision of an answer to the question of whether the Applicant's low back problems beyond April 10, 2008 were not attributable to the compensable accident and the determination of any relationship to the issue of the aggravation of her pre- existing condition are intertwined with the

interpretation of the WCB Policy, the WCA and the role of common law principles of causation . In other words, the Appeals Commission had to answer the question: do the facts of the Applicant’s situation satisfy the legal tests laid out in the WCA and the WCB Policies, cognizant of the role of common law principles of causation?

In my view, the nature of the question before the Appeals Commission on Issue A is one of mixed fact and law which supports a review on the standard of reasonableness: Gahir at para 13 ; Davick at paras. 72-73; Chauvet at para. 20 . [ 30 ] Alternatively, assuming that there is an extricable question of law in this circumstance, it is my view that it should be characterized as a question of pure law arising from the

interpretation of the provisions of the Appeals Commission’s home statute (i.e the WCA ), and the WCB Policies which does not rise to the level of a question of law that is of central importance to the legal system as a

whole and outside the area of expertise of the Appeals Commission. As such, the decision of the Appeals Commission in this instancewould attract a review on the standard of reasonableness: Buckley at para. 33. Privative clause [31] The Applicant argues that the WCA contains both a privative clause (in s. 13.1) and a statutory right of appeal (in s. 13.4) inrelation to the Appeals Commission.

That the privative clause is subject to the right of judicial appeal pursuant to ss. 13.2(11) and 13.4.She submits that the existence of the statutory right of appeal indicates the intention of the legislature that the Commission is owed littleor no deference on a question of law or jurisdiction: Pushpanathan v. Canada (Minister of Citizenship and Immigration), (SCC), [1998] 1 SCR. 982 at para 30, 160 DLR. (4th) 193; Dr.

Q. at para. 27. [32] In the submission of the WCB, questions of mixed fact and law, absent an extricable question of pure law, fall outside the s.13.2 statutory right of review and thus attract the reasonableness standard: Dunsmuir at paras. 55-56. [33] The Appeals Commission contends that the Alberta Court of Appeal has indicated that even in the absence of a privativeclause, the Commission should be owed deference and reviewed on a reasonableness standard on pure questions of law arising from theinterpretation of the provisions of the WCA and WCB Policies which are at the heart of the purpose of the statute and at the core of theCommission’s expertise: Buckley at para. 33.

It submits that the only exception to this is a jurisdictional question which is subject to thecorrectness standard: Lee at para. 18. [34] Given my finding that in order for the Appeals Commission to determine whether the Applicant's low back problems beyondApril 10, 2008 were not attributable to the compensable accident it had to consider and interpret the WCA, its home statute, and the WCBPolicies made under it; and the resulting effect that the question involved here is one of mixed fact and law to which ss. 13.2(11) and13.4. do not apply, I conclude that the presence of a privative clause in s. 13.1 of the WCA is indicative of the legislature’s intention thatdeference is owed the decision of the Commission on this issue.

This factor supports a review on the standard of reasonableness. [35] Significantly, the Court of Appeal also held in Buckley (at para. 14) that:– ... where the right of appeal and the application for judicial review would both be to the same tribunal (the Court of Queen’s Bench) ...[t]he standard of review will be the same whether the matter is brought forward by judicial review, or by way of appeal: Dr. Q. v.College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19, at para. 21.

Expertise of the tribunal [36] The Applicant argues that the expertise of the Appeals Commission is restricted to questions of fact which it is called upon tomake habitually; and only in an appellate role.

She submits that historically the Commission is a relatively recent institutional structurewithin Alberta’s workers’ compensation system, and as such does not play a central role in the system. [37] The WCB submits that the Supreme Court held that reviewing courts should defer to decisions of tribunals under reviewwhere they have developed a specific expertise in the administrative context: Dunsmuir at paras. 49 and 54.

That the argument that theAppeals Commission’s expertise is restricted to questions of fact has been rejected by our Court of Appeal which has overtimerecognized the Commission’s expertise in achieving the aims of the WCA, as a part of the overall workers’ compensation administrativescheme and its exclusive dealings with workers’ compensation matters on a regular basis: Davick at paras. 36, 72-73; Buckley at paras.24, 26-27; Chauvet at para. 51. [38] The Appeals Commission in its submission highlights that the Alberta Court of Appeal described the considerable expertise ofthe Commission since the WCA was amended in 2002 to include, inter alia: “deciding whether a worker is entitled to a particular benefit,

as well as on related issues such as which WCB policy applies, the nature of the application before it, and the

interpretation of WCBpolicy”; and “achieving the aims of the Act, making findings of fact in this context, and in weighing expert medical evidence”: Buckleyat paras. 24. [39] In my opinion, the decisions of our Court of Appeal, referred to in the preceding paragraphs, confirm the expertise of theAppeals Commission and lead to the conclusion that deference is owed the decision of the Commission on issues dealing with workers’compensation matters in Alberta. Purpose of tribunal as determined by enabling legislation [40] The Applicant submits that the WCA is a remedial statute which is to be given a fair, large and liberal construction ininterpretation:

Interpretation Act, R.S.A. 2000, c. I-8, ss. 2, 10. That the WCA is to be broadly interpreted so as to provide compensationto as many workers in as many circumstances as the legislative scheme will reasonably permit: Shuchuk at paras. 42, 46, 2007 ABCA213 , 409 A.R. 321; Elgie v Alberta (Workers' Compensation, Appeals Commission), 2009 ABCA 277 at paras. 38-41, 11Alta. L.R. (5th) 1. She notes that the Appeals Commission’s role is to resolve a dispute between the aggrieved worker and the WCB.

TheApplicant submits that all of these signify less deference for the Commission’s decision. [41] In its submission, the WCB states that the courts in Alberta recognize that it is a clear purpose of the workers’ compensationlegislation to ensure an “expeditious means of dealing with injuries sustained by workers in the course of their employment”: Alberta(Workers' Compensation Board) v. Alberta (Appeals Commission for Alberta Worker's Compensation), 2005 ABQB 161 at para. 47,374 A.R. 336.

It submits that one of the principal purposes of the WCA is to provide a system of compensation independent from courtinvolvement and the Appeals Commission’s role is central to the achievement of this purpose. The WCB notes that the Court of Appealheld that the WCA is properly described as a policy-laden statute: Davick at para. 74.

It contends that these factors suggest deference tothe Appeals Commission’s decision. [42] The Appeals Commission reiterates the central role that the Commission plays in the workers’ compensation system andsubmits that the statutory regime indicates that considerable deference is intended for its decisions: Buckley at para. 26. [43] I find that the purpose of the Appeals Commission is to perform a central role in facilitating the workers’ compensationsystem in Alberta as enabled by the provisions of the WCA, a policy-laden statute.

This role demands that the Commission be cognizantof the fact that the WCA is a remedial statute which is to be given a fair, large and liberal construction in

interpretation, whilerecognizing the Commission’s expertise in “achieving the aims of the Act, making findings of fact in this context, and in weighing expertmedical evidence”: Buckley at para. 24. This purpose indicates the intention of the legislature that the decision of the AppealsCommission is owed deference. Second Step - Issue C Nature of the question [44] Issue C deals with the question whether the Appeals Commission erred in basing the Applicant's post-accident earningcapacity is appropriately on the position of retail salesperson/sales clerk for the purpose of the TPD rate.

This question can be tied to theissue of “employability” and the argument of the Applicant that a worker is not considered employable until such time as suitableemployment has been identified. [45] None of the parties separately and explicitly addressed the nature of the question in Issue C. Rather, the Applicant dealt with awholesale review of the pragmatic and functional factors in reference to the decisions of the Appeals Commission; while the WCB andthe Appeals Commission dealt with the factors in a similar manner by reference to “all three issues” decided by the Commission in this

case, and by “submissions with respect to the standard of review analysis” respectively. Consequently, in this

section I will only address the factor dealing with the nature of the question in Issue C, with the understanding that the analysis above in respect of the other “pragmatic and functional factors”, i.e. privative clause, expertise of the tribunal, and purpose of tribunal are applicable to Issue C, with necessary and logical modifications. [ 46 ] That said, the argument of the Applicant on this issue is that the Appeals Commission erred in law in relation to the issue of entitlement given the provisions of the WCB Policies that deal, inter alia , with “compensable permanent disability”, “temporary total disability”, “suitable employment” et al .

In the Applicant’s it is the intention of the legislature that the Appeals Commission must be correct on its

interpretation of law (including policy). [ 47 ] The WCB contends that Issue C, being one of “all three issues” decided by the Commission in this case deals with a question of mixed fact and law which attracts review on the reasonableness standard. The Appeals Commission’s argument is that in this case the Commission is applying the provisions of the WCA and WCB Policies and dealing with medical evidence and question involving statutory

interpretation at the heart of the purpose of the Act as noted in Buckley and Nabors Canada LP v. Alberta (Workers' Compensation Appeals Commission) , 2006 ABCA 371 , 397 A.R. 57. [ 48 ] In my view, the question in Issue C straddles two categories of questions in respect of which the existing jurisprudence of our Court of Appeal has identified standards of review for reviewing decisions of the Appeals Commission. The first relates to the category of questions that deal with

interpretation of workers' compensation policies, and the application of policies to particular fact situations; and whether a particular employee is entitled to compensation, and the level of that compensation: Buckley , Schumaker , and Chauvet . The second category relates to questions that deal with the

interpretation of sections of the WCA lying within the expertise of the Appeals Commission, including the application of that law to particular fact situations: Buckley at para. 33 . The Court of Appeal held in all these cases that the standard of review for the Commission’s decision is reasonableness. Consequently, I find that the determination of the appropriate earning capacity of the Applicant is intricately tied to the assessment of the compensation and the level of compensation that she is entitled to. And this assessment could only be done appropriately in the context of the

interpretation of the WCA , the WCB Policies and the application of the law to the particular fact situation of the Applicant. The decision of the Appeals Commission that implements this balancing is reviewable on the standard of reasonableness in conformity with our Court of Appeal decisions. Conclusion on standard of review [ 49 ] In

summary, I conclude that the appropriate standard of review for each and all the three issues identified above in respect of the Appeals Commission’s decision issued on January 13, 2010 is reasonableness. Analysis Is the Appeals Commission’s Decision No.: 2010-33 of January 13, 2010 reasonable? [ 50 ] In order to assess the reasonableness of an administrative authority’s decision, the Supreme Court of Canada in Dunsmuir described what the reviewing court should perform when it stated that:– ...

A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. I will now turn to the assessment of the AC Decision on each of the issues raised in this case.

Issue A Whether the Appeals Commission erred in concluding that the Applicant's low back problems beyond April 10, 2008 werenot attributable to the compensable accident. [51] At the core of the Applicant’s argument on this issue is the theory that the aggravation of her pre-existing condition cannot beconsidered resolved until the pre-existing condition, including the symptoms from the pre-existing condition, resolve to the pre-accidentstate.

She points to the fact that the Commission confirms that there is no dispute that the pre-existing degenerative changes wereaggravated by the work-related injury that resulted from the compensable accident which occurred on February 5, 2007. That the onlychange in her pre-existing condition is the fact that it is made symptomatic by the work injury as the record does not disclose anyevidence of symptoms prior to the compensable accident. The Applicant submits that WCB Policy 03-02,

Part I which deals with asituation of this nature states that:– When an accident causes a pre-existing condition or disease to deteriorate or become symptomatic to the point where a worker is nolonger able to perform all aspects of the job, the WCB shall allow entitlement on the basis of an aggravation factor. [52] The Applicant argues that neither the WCA nor the WCB Policy sets out a complete codification of “causation”; and that thecommon law regarding causation continues to apply: Shuchuck at paras. 22, 40-43.

Notably, in oral arguments, the Applicant’s counseltook the position that the facts of Shuckuck are on all fours with the present case, while the Appeals Commission’s counsel opposed thatargument and distinguished Shuchuck on the ground that the intervening factor that was present in that case is absent in this presentmatter.

In this respect, I find that there is merit in the Appeal Commission’s position. [53] Further, the Applicant contends that the test prescribed by the Supreme Court of Canada for the determination of causation isthe “but for” test which would, in the circumstances of this case, ask the question: would the Applicant have her current symptoms andrestrictions (emanating from the pre-existing condition) but for the compensable injury?: Athey v Leonati, (SCC),[1996] 3 S.C.R. 458.

She submits that the Appeals Commission failed to apply this test because its decision gives no indication that itwas considered. [54] The WCB notes that it had accepted that the compensable accident and injury aggravated the Applicant’s pre-existingmultilevel degenerative disc disease with mild spinal stenosis. It submits that the real question before the Appeals Commission waswhether the low back problem beyond April 10, 2008 were the result of the compensable accident.

The WCB argues that to answer thiscausation question the correct test to apply is laid out in the WCB Policy 03-02, Pt.II, App. 1 which deals with compensability ofaggravations of pre-existing conditions and provides, inter alia, that temporary benefits based on this

section will be paid until:– [T]he aggravation has ended and the weight of evidence shows that ongoing temporary disability is solely due to the pre-existingcondition or some other unrelated, non-compensable health problem. [55] While I agree with the Applicant’s position that the determination of causation in the context of the WCA and WCB Policymay require reference to the common law principles of causation, the fact that the Commission did not expressly refer to the test in Atheydoes not, in my opinion, lead to the conclusion that it never considered it given the principle of presumption of regularity.

Further, thefact that the Commission did not expressly mention the “but for” test becomes academic when reference is made to its decisionconfirming that there is no dispute that the pre-existing degenerative changes were aggravated by the work-related injury that resultedfrom the compensable accident.

This clearly confirmed the causal relationships between the compensable accident, the compensableinjury and the aggravation of the pre-existing condition. [56] The application of the provisions of the WCA and WCB Policy cannot be assigned a secondary role vis-a-vis the role whichthe common law principles of causation may have to play in any causation analysis by the Commission. From this perspective, it is clearto me that the Commission had to determine whether the aggravation has ended based on “the weight of evidence” as mandated by therelevant WCB Policy.

The only practical and reasonable option available to the Commission in determining this question is either toaccept the objective medical evidence presented to it or accept the subjective report/evidence of the Applicant about the end of theaggravation. [57] The Appeals Commission in its decision identified, considered and analysed medical evidence presented to it as shown in its

records. Admittedly, there were contrasting medical reports before the Commission from the Applicant’s treating physicians and the independent medical examiners. Outstandingly, the report from Dr. Huckell on February 5, 2007 indicated that the Applicant demonstrated normal strength when tested, that the clinical findings were valid and the Applicant was reported not to be exaggerating complaints in any way; while in contrast Dr. England’s report of July 3, 2008 confirmed the Applicant’s invalid examination, i.e. her presentation upon examination did not represent her true functional capacity.

Subsequently, the medical manager of WCB, Dr. Magnan reviewed the two reports and commented that:– This does not represent a difference of medical opinion, but rather an inconsistent clinical presentation. Further consultations would not necessarily correct this issue.

Her current presentation as well as failure to show her full potential at the end of her rehab program in February place some doubt as to the reliability of her subjective complaints as well as in the past. [ 58 ] The Applicant’s theory is that the aggravation of her pre-existing condition cannot be considered resolved until the pre- existing condition, including the symptoms from the pre-existing condition, resolve to the pre-accident state.

While the WCB’s theory is that if previously asymptomatic pre-existing conditions are rendered symptomatic due to aggravation by a compensable accident and thereafter subsist, it does not automatically follow that the continued symptoms are due to the compensable accident.

The tension between these theories can only be resolved by the Appeals Commission with the benefits of medical evidence and the Applicant’s evidence of her complaints and presentation. [ 59 ] The Appeals Commission considered and weighed all the medical evidence alongside the evidence of the Appellant’s subjective complaints and presentation before it and concluded, based on the evidence it accepted, that the temporary aggravation of the Applicant’s pre-existing lumbar spine degeneration accepted under the claim had resolved and that her low back problems beyond April 10, 2008 were not a result of the February 5, 2007 work-related, compensable accident.

This conclusion deserves deference based on our Court of Appeal’s decision, mentioned earlier, which recognized the considerable expertise of the Commission in weighing expert medical evidence: Buckley at paras. 24 . [ 60 ] In my view, the decision of the Appeals Commission on Issue A articulates the Commission’s reasoning as to the outcome in a justifiable and intelligible manner. The decision on this issue falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. As a result, I hold that the Appeals Commission on Issue A meets the standard of reasonableness.

Issue B Whether the Appeals Commission erred in finding that the Applicant was not entitled to TTD benefits from June 27, 2007 to February 27, 2008 and then beyond April 10, 2008. [ 61 ] Both the WCA , s. 56(8) and the WCB Policy 04-02

Part I distinguish temporary total disability (TTD) from temporary partial disability (TPD). The Applicant argues that in accordance to WCB Policy 04-02

Part II TTD is payable until the weight of medical evidence indicates the worker is considered fit to return to suitable employment. That there is no record disclosing that any remaining disability in the Applicant is permanent and consequently, the consideration turns on whether the weight of medical evidence indicates that the Applicant is considered fit to return to suitable employment. The Applicant argues that according to the provisions of the WCB Policy 04-05,

Part I the WCB will consider “a worker employable when suitable work has been identified which the worker is capable of performing.” She submits that the logical

interpretation of this policy is that a worker cannot be considered employable until suitable employment is identified. The Applicant especially noted that the WCB Policy uses the term “suitable employment” and not “any employment”. [ 62 ] The WCB contends that Policy 04-05,

Part I defines suitable employment as work that meets the following conditions: (

a) the work can be performed without endangering the worker's recovery or safety and the safety of others; (

b) the worker has the skills the work requires; and (

c) the work is reasonably available in a location to which the worker may reasonably commute or relocate. It noted that there are three exceptions under Policy 04-02 where in the absence of a total disability, the TTD benefits may be considered for payment.

The WCB submits that the AC Decision indicated that the Appeals Commission found that the Applicant was able to perform modified or alternative work within her work restrictions, based on the Commission’s acceptance of medical and functional capacity evidence which are identified and summarized in the decision. [ 63 ] The AC Decision outlined the specific evidence it considered on this issue. In the decision, the Commission stated that based

[ 63 ] The AC Decision outlined the specific evidence it considered on this issue. In the decision, the Commission stated that based on the medical reports and functional capacity evaluations, it found that while the weight of medical evidence shows that the Applicant had work restrictions resulting from the work injuries during the period of June 27, 2007 through to February 27, 2008, she was not disabled from all forms of employment.

The Appeals Commission further mentioned in the decision that the medical evidence supports that the Applicant was not temporarily totally disabled and that, despite her work restrictions, she was capable of some employment during the relevant period. In the result, the Commission held that TTD benefits cannot be provided to the Applicant.

The Appeals Commission further considered whether the exceptions apply to the Applicant’s situation and held that, since it is not disputed that she was not job attached and the policy anticipates an ongoing employment relationship in this context, the provision of Policy 04-02 dealing with the three exceptions does not apply to her situation. [ 64 ] On this issue of entitlement to either TTD or TPD benefits, I do not see any particular merit in the Applicant’s argument relating to the non-usage of the term “any employment” in the WCB Policy since the Commission did not conclude or say in its decision that the Applicant was fit for “any employment”.

Rather, what the Commission found is that the weight of medical evidence indicates that despite her work restrictions during the relevant period she was not disabled from all forms of employment. In other words, if there is work that meets the conditions stipulated for suitability under Policy 04-05,

Part I and it is established by evidence that the Applicant is not disabled from being employed for/in it during the relevant period, she would not be entitled to TTD benefits. In my opinion, the conclusion reached by the Commission on this issue is supported by the evidence before it. [ 65 ] Based on my review of the evidence before the Appeals Commission and the conclusion reached by the Commission based on the evidence, its

interpretation and application of the relevant provisions of the WCA and the WCB Policy and cognizant of the Commission’s expertise in determining whether a particular employee is entitled to compensation, and the level of that compensation, I find that there exist the required justification, transparency and intelligibility within the decision-making process and that the Commission’s decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

Consequently, I conclude that the decision of the Appeals Commission on this Issue B meets the standard of reasonableness. Issue C Whether the Appeals Commission erred in basing the Applicant’s post-accident earning capacity is appropriately on the position of retail salesperson/sales clerk for the purpose of the TPD rate. [ 66 ] The Applicant contends that the estimate of her earning capacity is to be based on the identification of suitable employment.

She argues that the WCB policy does not consider a worker employable until suitable employment is identified: Gahir at paras. 26-31 ; Watson v Alberta (Workers’ Compensation Board) , 2010 ABQB 280 at para. 112 . [ 67 ] The WCB notes that if a worker is not entitled to TTD benefits because she is no longer totally disabled or the disability has not been determined to be permanent, she may qualify for temporary partial disability (TPD) benefits pursuant to the provisions of the WCA and the WCB Policy. It submits that in respect of TPD benefits, Policy 04-02, Pt.

II, App. 1, #4 provides:– A worker is eligible for temporary partial disability benefits when the weight of medical evidence indicates a worker has compensable temporary work restrictions, but is physically and medically capable of returning to a modified version of the pre-accident job or another suitable job. The WCB contends that under this provision there is no requirement that a position be actually available. And noted that the entire disability benefit scheme is based on helping an injured worker attain employability, not employment: Policy 04-05

Part I; White v Alberta (Workers’ Compensation Board, Appeals Commission) , 2006 ABQB 359 , 400 A.R. 183 at paras. 11-12 , 38, 47. [ 68 ] With reference to how the WCB estimates earning capacity for temporary partial disability (TPD), the WCB in its submission points to Policy 04-02, Pt.

II, App. 1, #9 that deals with this issue, and reads:– In cases of temporary partial disability, the WCB considers the earnings in a suitable job for which it is reasonable the worker could be hired, given the temporary work restrictions. [ 69 ] It appears to me that a key issue is the determination of what constitutes identification of a suitable job or employment. Is it identifying “a suitable job for which it is reasonable the worker could be hired” as in Policy 04-02, Pt. II, or “identifying” by providing

the worker with an actual suitable job or employment? [ 70 ] Policy 04-05

Part I is a helpful

interpretational tool in this respect. It provides:– 2.0 Employability The WCB has no control over several factors that affect a worker's return to employment. These factors include: · economic conditions, · the availability of employment opportunities, · the worker's effort and commitment to find employment, · an employer's decision about whom to hire. Because these factors are beyond WCB control, the WCB is responsible for helping the worker achieve employability, not employment. The WCB will help the worker identify and develop the skills and capabilities to competitively pursue employment.

The WCB considers a worker employable when suitable work has been identified which the worker is capable of performing. To be suitable, work must meet the following conditions: · the work can be performed without endangering the worker's recovery or safety and the safety of others; · the worker has the skills the work requires; · the work is reasonably available in a location to which the worker may reasonably commute or relocate.

In my view, it is clear from the policy quoted above that the WCB is responsible for helping worker achieve employability and not employment, given the facts that some factors that affect employment are beyond its control when it comes to actually providing suitable jobs for all workers who require its services. In essence, identification of a suitable job or employment is more about identifying “a suitable job for which it is reasonable the worker could be hired” as in Policy 04-02, Pt.

II, and not about “identifying” by providing the worker with an actual suitable job or employment. [ 71 ] The Applicant referred to the decision in Gahir and Watson to support her argument. There is need to clarify the scope and relevance of these cases to the present matter. [ 72 ] I note that the decision of the Appeals Commission indicates that the Applicant argued the issue before the panel when her representative submitted that Gahir confirmed the obligation on the WCB to identify a real job that was reasonably available.

The Commission addressed the argument and referred to the following paragraphs in Gahir :– [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. [29] The workers’ compensation system is not, however, an unemployment insurance system.

It is designed to provide compensation for persons who are unable to work due to disability. It does not guarantee that there will be a job available for every injured employee. [...]

[31] It was therefore open to the Appeals Commission to conclude that the appellant is theoretically capable of performing sedentary work within his restrictions, without identifying a specific job he could perform. The ability of the Board to deduct any potential earnings from the appellant’s benefits will however likely depend on the Board identifying such suitable employment. Further, the Appeals Commission stated in its decision that its understanding of the appellate court’s intention in Gahir differs from the Appellant’s construction.

That in the case at bar, the WCB is “able to identify employment that the worker could perform based on an actual position that the worker could reasonably obtain within her work capability and compensable work restrictions”. The Commission concluded that our Appeal Court in Gahir “acknowledges that the compensation system is not intended to provide guaranteed employment to workers.” [ 73 ] I think the decision in Watson is distinguishable from the present matter.

In that case, the Court of Queen’s Bench chambers judge noted that the Appeals Commission concluded that “the evidence indicated ... the WCB had not specifically addressed the types of “competitive” employment in which she might be able to engage.” (para 16).

In other words, in Watson the reviewing judge held that the Appeals Commission’s decision was unreasonable when it calculated (or estimated) benefits in the absence of an identified suitable employment. [ 74 ] In the present case, the evidence before the Commission indicates that the WCB did specifically addressed the issue when it conducted functional capacity evaluations and subsequently identified through Labour Market Analysis reports that there exists the actual position of retail store clerk that, in the context of the Applicant’s claim, it considered “a suitable job for which it is reasonable the worker could be hired, given the temporary work restrictions”.

This in my view satisfies the provisions of Policy 04-02, Pt.

II, App. 1, #9. [ 75 ] Having reviewed the Appeals Commission’s decision and on Issue C, I am satisfied that the Commission clearly stated in its reasoning that it had determined that the Applicant is able to perform modified or alternative work within her work restrictions (hence temporary partial disability (TPD) benefits; the Commission identified the evidence relied on, interpreted and applied the WCA and WCB policies appropriately while having consideration to relevant court decisions and articulated its reasoning process in a justifiable, transparent and intelligible manner.

I therefore find that the Appeals Commission’s decision on Issue C meets the standard of reasonableness. [ 76 ] In conclusion, I find that the Appeals Commission’s Decision No.: 2010-33 and dated January 13, 2010 is reasonable. Disposition [ 77 ] The Applicant’s application for judicial review and appeal is denied. [ 78 ] I retain jurisdiction to allow parties speak to costs within 60 days of this decision. Heard on the 25 th day of January, 2011. Dated at the City of Edmonton, Alberta this 18 th day of February, 2011.

Donald Lee J.C.Q.B.A. Appearances: Kenneth W. Penonzek Penonzek Kowalchuk for the Applicant Sandra Hermiston for the Respondent Appeals Commission for Alberta Workers’ Compensation Jason J.J. Bodnar for the Respondent Workers’ Compensation Board of Alberta