Kraig Nickolas Proc Appellant - v. -, 2011 ABQB 224

Court of Queen ’ s Bench of Alberta Citation: Proc v. Alberta (Workers ’ Compensation Board), 2011 ABQB 224 Date: 20110404 Docket: 1006 00800 Registry: Lethbridge Between: Kraig Nickolas Proc Appellant - and - Workers ’ Compensation Board and the Appeals Commission of the Workers ’ Compensation Board Respondents Corrected judgment: A corrigendum was issued on April 11, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Judgment of the Honourable Mr. Justice J.H. Langston _______________________________________________________ Introduction

[1] Kraig Proc is a delivery truck driver. On July 20, 2007, while he was working, he stopped to wait for the opportunity tomake a left-hand turn, and was rear-ended. He went home that day with a headache. A few days later, his family physician diagnosedhim with mild whiplash. At the time, neither Mr. Proc nor his physician anticipated any long-term effects. [2] Unfortunately, in June of 2009, an MRI showed Mr. Proc had severe spinal disc protrusion at the C5-C6 level. Mr. Proc alsosuffers from ongoing neck pain, which also radiates down his left arm.

These problems have restricted his ability to perform all hisemployment duties, but through Mr. Proc’s own perseverance and some accommodation from his employer, overall, he has not oftenmissed work. [3] Starting in 2009, Mr. Proc requested that Worker’s Compensation cover the costs of physiotherapy and other necessarytreatment, and provide him with disability benefits when he was unable to work. These requests were denied. Mr. Proc went through theadministrative appeals process, which culminated in a decision from the Appeals Commission on June 29, 2010.

After an in-personhearing, the Appeals Commission concluded that there was no causal connection between Mr. Proc’s disc protrusion and the accident onJuly 20, 2007. It is from this decision that Mr. Proc seeks relief. Discussion [4] Mr. Proc appeals on the basis that the Appeals Commission (“the Commission”) erred in not finding that the injury to hisneck and back at the C5-C6 level is the result of the accident on July 20, 2007. He argues there are two grounds to the appeal; that theCommission committed an error of law, thus entitling him to appeal under

section 13.4 of the Workers’ Compensation Act, R.S.A. 2000c. W-15, or in the alternative, that the Commission’s decision is unreasonable, justifying this Court’s intervention on judicial review. [5] Mr. Proc also seeks to admit new evidence. An affidavit sworn by Mr. Proc and filed simultaneously with the OriginatingNotice attaches a copy of the Statement of Claim which has been filed for the July 20, 2007 accident, and a further report from Mr.Proc’s family physician. [6] This new evidence does not meet the test for admission: R. v.

Palmer, (SCC), [1980] 1 S.C.R. 759, asdiscussed more recently in Siksika Nation v. Walji Holdings Ltd., (2004), 350 A.R. 324, 2004 ABQB 37 at para. 21. In particular, thisnew evidence could have been produced at the Commission hearing, and does not add anything fundamental to the record filed by theCommission. The application to admit this new evidence is therefore denied. [7] The remaining issues are the substance of the appeal and judicial review. I will deal first with the alleged error of lawentitling Mr. Proc to appeal. [8]

Section 13.4 of the Workers’ Compensation Act states that a person may appeal a decision of the Commission on a questionof “law or jurisdiction”. Mr. Proc argues that the Commission committed an error of law because it did not apply the balance ofprobabilities test to the question of causation. [9] The Commission reviewed the evidence in detail. This evidence included the written reports and file notes of Dr. Kennedy,Mr. Proc’s family physician, and the medical consultation report prepared for the Workers’ Compensation Board by Dr. Wesner.

Dr.Kennedy’s conclusion was that the C5-C6 disc protrusion was caused by the accident, while Dr. Wesner concluded it was not. TheCommission was therefore faced with competing medical opinion. [10] In the course of discussing these opinions, the Commission stated: [20] ...While the worker is not obliged to prove his claim beyond a reasonable doubt, we also find that it is not necessary for the WCB toidentify an alternate cause for an injury before denying a claim. WCB policy directs that the WCB is to base its decision on a balance ofprobabilities after investigating and reviewing the evidence. ...

[ 11 ] In addition to this specific acknowledgement of the burden of proof to apply, I find that the entire tenor of the Commission’s decision demonstrates it was alive to the balance of probabilities question. Accordingly, the appeal under s.13.4 is dismissed. [ 12 ] The remaining question is whether the Commission’s decision is upheld under the application for judicial review. [ 13 ] Mr. Proc, the Commission and the Workers’ Compensation Board all agree the appropriate standard of review on the judicial review application is reasonableness. This position is amply supported by the case law: Gahir v.

Alberta (Workers’ Compensation, Appeals Commission) , (2009), 448 A.R. 135, 2009 ABCA 59 at para. 13 ; Melanson v. Alberta (Appeals Commission for Alberta Workers’ Compensation) , 2011 ABQB 104 at para. 29 . The “reasonableness” standard means that the reviewing judge is prohibited from reviewing the evidence and substituting his opinion for that of the tribunal. Rather, “reasonableness” requires the reviewing judge to determine whether the decision is supported by the evidence. Justice Clackson, in Allsop v.

Alberta (Workers' Compensation Board Appeals Commission) , 2010 ABQB 472 at para. 10 , provides the following useful definition of “reasonableness”: If the facts found are supported by evidence and the evidence rejected was treated in an explicable and defensible way, then the decision based upon the found facts will be reasonable as long as the law applied was interpreted and applied in a way that is defensible. [ 14 ] The sole issue before the Commission was very specific; it was whether the accident of July 20, 2007 caused the C5-C6 disc protrusion. Whether the physical duties required in Mr.

Proc’s employment caused the protrusion, or are causing his back, neck and arm problems, was not before the Commission. This may be an avenue of potential compensation that Mr. Proc wishes to pursue. However, as an appellate body bound to review only the specific issues addressed by the Commission, the existence of this potential alternate avenue for compensation does not assist Mr. Proc before this Court. [ 15 ] As previously mentioned, the Commission was faced with competing medical opinion from Dr. Kennedy, Mr.

Proc’s family physician, and the medical consultation report prepared for the Workers’ Compensation Board by Dr. Wesner. Dr. Kennedy’s conclusion was that the C5-C6 disc protrusion was caused by the accident, while Dr. Wesner concluded it was not. Having reviewed each medical expert’s evidence in detail, in conjunction with the other evidence, the Commission ultimately concluded that “more weight” was to be placed on Dr. Wesner’s opinion. The Commission went through and analysed the evidence that led to this conclusion. [ 16 ] As one reads the Commission’s

summary of the evidence and its’ analysis, clearly the Commission was troubled by the fact that although Mr. and Ms. Proc gave evidence that Mr. Proc had been symptomatic since the accident, there was no report of attendance upon or treatment by Dr. Kennedy, or any physician, from July 23, 2007, when he was diagnosed with mild whiplash, to February 25, 2009; a period of over eighteen months. Even in her report of April 16, 2009, she makes no reference to Mr. Proc being symptomatic since the accident; instead she refers to Mr.

Proc having a “recurrence” of the neck pain in February of 2009. [ 17 ] Another issue which troubled the Commission was that Dr. Kennedy stated the accident of July 20, 2007 was responsible for the changes in the C5-C6 area of the spine, but she gave no explanation for how this was possible given the seemingly minor injury she recorded on July 23, 2007, with no reported problems for the following one and a half years.

To illustrate but one example of how the Commission expressed this concern, in its analysis, the Commission stated, [19.1] Although the family physician is clear in her opinion that there is a casual relationship...she does not provide any medical explanation for the eighteen month delay in the reporting of symptoms. ... [ 18 ] On the contrary, Dr. Wesner used this gap in his reasoning for why he did not believe the protrusion was related to the July 20, 2007 accident.

He stated, [17.19] ...It is my opinion that a cervical disc protrusion presenting 18-months after a reported mechanism of injury with no intervening complaints or medical examination assessments is not related to the original injury. ... [ 19 ] Dr. Wesner then discussed the mechanics of a cervical disc injury and how the reporting by Dr. Kennedy was inconsistent with the conclusion that the protrusion had been caused by the July 20, 2007 accident.

[ 20 ] Dr. Wesner never examined Mr. Proc; he only reviewed his medical files. On this review, Mr. Proc therefore argues that Dr. Kennedy’s opinion should be given deference because she has known Mr. Proc for many years and has examined him. The problem, however, is that there is no evidence that the nature of Mr. Proc’s problem is such that it cannot be competently commented upon without a visual examination. [ 21 ] The same argument was made before the Commission, which stated: [19.6] ...

As a treating physician the family physician would have knowledge of the worker’s treatment and ongoing reporting of symptoms, however, this knowledge does not automatically result in more weight being placed on her opinion as it relates to the issue of causation. ... [ 22 ] This statement would be true even without the problems the Commission had with Dr. Kennedy’s evidence. [ 23 ] The Commission was faced with contradictory and inconsistent evidence, and competing medical opinions.

It went through all the evidence, and reasoned its way to the conclusion that it had not been satisfactorily proven that the C5-C6 disc protrusion was caused by the July 20, 2007 accident. Upon my review, the Commission’s rejection of certain facts and opinions, and its’ application of relevant legal principles, was all done in an explicable and defensible fashion. I am unable to conclude the Commission’s decision is unreasonable. The application for judicial review is dismissed. [ 24 ] This is a matter that warranted a Court application, and accordingly, the parties will each bear their own costs.

Heard on the 22 nd day of March, 2011. Dated at Lethbridge, Alberta this 1 st day of April, 2011. J.H. Langston J.C.Q.B.A. Appearances: James R. Farrington Krushel Farrington for the Applicant

Ron Goltz The Workers’ Compensation Board for the Respondent Workers’ Compensation Board Alexander C. Phillips Appeals Commission for the Respondent The Appeals Commission of the Workers’ Compensation Board _______________________________________________________ Corrigendum of the Memorandum of Judgment of The Honourable Mr. Justice J.H. Langston _______________________________________________________ [1] The Judgment should have properly been dated the 1st day of April, 2011.