Angelo Tartaglia Appellant/Applicant - v. -, 2011 ABQB 374

Court of Queen ’ s Bench of Alberta Citation: Tartaglia v. Alberta (Workers ’ Compensation Board, Appeals Commission), 2011 ABQB 374 Date: 20110613 Docket: 1003 02776 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 Decision No. 2009-796 by the Appeals Commission Established Under the WCA in Respect of the Workers’ Compensation Board’s (“WCB”) Claim File 427 1468 Between: Angelo Tartaglia Appellant/Applicant - and - Appeals Commission for Alberta Workers ’ Compensation Respondent _______________________________________________________ Reasons for Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________ I. Introduction

[ 1 ] Angelo Tartaglia experienced pain and numbness in his left shoulder and fingers while on his way to work as a rodman on November 1, 2000. Despite continuing numbness in his shoulder, he continued to work until November 23, 2000, but has not worked since. His workers’ compensation claim has still not been resolved.

He is now appealing and seeking judicial review of an August 27, 2009 decision of the Appeals Commission for Workers’ Compensation (the Commission) on the basis that the Commission: breached its duty of fairness by refusing to allow him to present new evidence; erred by deciding a matter that was not before it; erred by instructing the WCB to estimate his earnings retroactive to February 13, 2008; and was otherwise unreasonable in its decision. [ 2 ] For the reasons that follow, the appeal/judicial review is largely dismissed.

One ground of judicial review is allowed but the matter is not referred back to the Commission as it already has referred it back to the WCB. The issue of whether Mr. Tartaglia is entitled to interim relief and, if so, the form of that relief, is referred back to the Commission if the WCB has not yet identified suitable employment on which to estimate Mr. Tartaglia’s loss of earning capacity after February 13, 2008. II. Facts [ 3 ] On November 29, 2000, Mr.

Tartaglia, then aged 48, submitted a worker’s report of injury or occupational disease to the WCB in relation to soreness and numbness in his left arm and fingers which he claimed to have first experienced on November 1, 2000 when he was driving to and was at his work as a rodman. Mr. Tartaglia was referred to the company nurse, who advised that he undertake modified work duties and see his physician. He continued to work until November 23, 2000, refusing his employer’s offer of modified work duties. [ 4 ] Dr. S. R. Vecchio examined Mr.

Tartaglia on November 24, 2000 and diagnosed acute tendonitis of the left shoulder. He assessed Mr. Tartaglia as not being capable of any work for at least two weeks, at which point Mr. Tartaglia was to have a follow-up appointment. No fracture, bone lesion, erosive change, dislocation or soft tissue abnormality were detected in x-rays taken on November 29th. [ 5 ] Mr. Tartaglia’s employer, Plains Reinforcing Ltd., did not accept that the injury was work related. [ 6 ] A second report by Dr. Vecchio dated December 15, 2000 noted that Mr. Tartaglia still reported having pain of his left shoulder. He referred Mr.

Tartaglia to physiotherapy and assessed him as not being capable of any work for at least four weeks. [ 7 ] On January 10, 2001, the claims adjuster advised Mr. Tartaglia that the WCB had accepted that his left shoulder tendonitis was caused by his repetitive work duties and that he would be paid temporary total disability (TTD) benefits while he was incapable of returning to work. [ 8 ] Dr. Mark Ross, a rehabilitation centre physician, indicated in a discharge

summary prepared in relation to his March 7, 2001 examination of Mr. Tartaglia that he did not detect left shoulder tendonitis but rather pain centred in the acromioclavicular (AC) joint. He referred Mr. Tartaglia to an orthopaedic surgeon, who suggested that the left AC joint might be the source of Mr. Tartaglia’s ongoing pathology. [ 9 ] Mr. Tartaglia was referred for physical therapy. According to a letter to Mr. Tartaglia from the WCB dated October 18, 2001, the WCB was advised by the therapist that Mr.

Tartaglia was “performing exercises related to a medium to heavy level of employment.” The WCB indicated that as he was fit to return to work, his wage loss benefits would end effective November 16, 2001. [ 10 ] In a memo dated October 24, 2001, the WCB’s medical consultant, Dr. D. R. Huber, suggested that on a review of the available medical reports, the most reasonable diagnosis of Mr. Tartaglia’s condition was that of left AC joint dysfunction or arthropathy. [ 11 ] On November 13, 2001, Mr.

Tartaglia was reassessed by the orthopaedic surgeon, who diagnosed arthrosis in the left AC joint, a condition which is permanent and can deteriorate.

[ 12 ] On January 10, 2002, the WCB wrote to Mr. Tartaglia advising that the decision to discontinue his TTD benefits remained unchanged. Mr. Tartaglia and the employer both appealed to the Claims Services Review Committee (CSRC). [ 13 ] In a decision dated March 27, 2002, the CSRC supported the employer’s appeal and found Mr. Tartaglia’s claim unacceptable. It determined that the arthrosis condition was unrelated to Mr. Tartaglia’s employment with the employer or to his general employment duties. It noted there was no specific incident and Mr. Tartaglia first experienced symptoms while driving to work.

It took into account that he only started working with the employer on July 10, 2001. The CSRC stated that due to the degenerative nature of the condition, it did not consider it reasonable to relate the condition to such a brief period of employment as the onset of the symptomology could have been coincidental with the natural progression of the joint disorder. It concluded the arthrosis was not work related and had not been aggravated by a work-related accident. [ 14 ] Mr. Tartaglia appealed the CSRC decision to the Commission. In a decision dated November 22, 2002, the Commission found that Mr.

Tartaglia’s condition arose out of his employment. It noted there was evidence that his symptoms worsened with the continuation of his work activities to the point he became disabled and could no longer perform all aspects of his job. It found that the medical evidence demonstrated that the condition pre-dated November 1, 2000. The Commission concluded that Mr. Tartaglia’s claim was acceptable as his employment activities had aggravated his pre-existing left shoulder condition causing it to become symptomatic to the point he could no longer perform all aspects of his job.

It allowed the appeal. [ 15 ] On July 2, 2003, Mr. Tartaglia’s representative asked the Decision Review Body (DRB) to review the WCB’s decision to end Mr. Tartaglia’s TTD benefits on the ground that this issue had not been addressed due to its decision on March 27, 2002 that the claim was not acceptable. [ 16 ] Dr. J. Huckell conducted an independent examination of Mr. Tartaglia on April 23, 2004. He reported that there was evidence of bilateral AC arthritis which was more prominent on the left side.

He opined there may have been some aggravation of his pre-existing AC arthritis when he was carrying rebar, but such aggravation had resolved. He ordered x-rays of both AC joints. He said that he did not see any significant limitation of fitness for work although Mr. Tartaglia might have some trouble carrying heavy objects on his left shoulder. He did not recommend any treatment.

The x-ray showed osteoarthritic change in both AC joints but no instability. [ 17 ] On April 28, 2004, the WCB confirmed its decision that there was no ongoing responsibility on the claim as any aggravation of the AC arthritic condition had resolved. In a letter dated June 3, 2004 it clarified that the WCB would not consider benefits beyond November 15, 2001 as any remaining disability Mr. Tartaglia might have would be related to the pre-existing arthrosis and not the effects of his work duties. [ 18 ] In a memo dated July 28, 2004, Dr. Huber advised the WCB that medical reporting by Dr. M.

Walker, a family physician, and the results of an electrophysiological study, MRI and x-ray of the left humerus, suggested that the aggravation of Mr. Tartaglia’s condition had not ended and a permanent aggravation had occurred. [ 19 ] On August 19, 2004, the WCB accepted that Mr. Tartaglia had suffered a permanent aggravation of his underlying shoulder condition but did not accept that he had carpal tunnel syndrome or, if he did, that it was related to his job duties. [ 20 ] In a memo dated August 20, 2004, Dr. A.R.

White, a medical consultant with the WCB’s clinical impairment unit, reported that he had assessed Mr. Tartaglia’s impairment using the Alberta Permanent Clinical Impairment Guide as being 1.07 percent abduction/adduction and 0.38 percent internal/external rotation. [ 21 ] On August 23, 2004, the WCB advised Mr. Tartaglia that his permanent impairment had been determined to be 1.45 percent, rounded up to two percent, which entitled him to a non-economic loss payment of $1,431.47. [ 22 ] Mr. Tartaglia was provided with re-employment assistance benefits from September 1, 2004 to November 23, 2004.

[ 23 ] On January 11, 2005, the WCB advised Mr. Tartaglia that he would be paid an economic loss payment (ELP) based on the position of delivery driver, earning $24,000.00 per year. Monthly temporary partial disability (TPD) benefits were calculated to be $1,215.34, retroactive to November 15, 2001 and continuing to April 30, 2005, at which time it was expected he would be participating in a heavy equipment operator training program operated by Fining. During the training program, he was to be paid a retraining allowance at the same rate as the TTD. [ 24 ] Rather than the training program with Finning, Mr.

Tartaglia sought training through Keyano College. A dispute arose between him and the WCB, the end result being that Mr. Tartaglia took no heavy equipment training. [ 25 ] On June 4, 2005, the WCB informed Mr. Tartaglia that his ELP would be based on the position of heavy equipment operator, with an estimated salary of $29,200.00 and resulting monthly ELP of $1,192.58 beginning June 1, 2005. [ 26 ] On August 19, 2005, Mr. Tartaglia appealed the WCB’s decision of August 23, 2004 relating to the non-economic loss payment of two percent. [ 27 ] On January 6, 2006, Mr.

Tartaglia appealed the January 11, 2005 WCB decision relating to his vocational training and the June 4, 2005 WCB decision regarding his ELP being based on a salary of $29,200.00. On January 10, 2006, Mr. Tartaglia appealed the January 11, 2005 WCB decision that he would be able to earn $24,000.00 a year, on the ground that this was too high given his limited education and some language difficulties. [ 28 ] On June 28, 2006, the Dispute Resolution and Decision Review Body (DRDRB), the successor to the CSRC and DRB, upheld the August 23, 2004 WCB decision that Mr.

Tartaglia was entitled to a non-economic loss payment of two percent. It upheld the January 11, 2005 calculation of his TPD benefits effective November 24, 2004 as being based on a salary of $24,000. It found there was no information to suggest he was not capable of successfully completing the eight week heavy equipment operator work experience with Finning recommended by the WCB. Therefore, it upheld the WCB’s June 4, 2005 calculation of the ELP as being based on a salary of $29,200.00 effective June 1, 2005. It also found that Mr.

Tartaglia did not require the Keyano College training to work as a heavy equipment operator and, therefore, upheld the WCB’s decision on that issue as well. [ 29 ] On May 16, 2007, the DRDRB Chair’s delegate waived the time limit for review of the WCB’s January 11, 2005 decision that, as of November 15, 2001, Mr. Tartaglia had the skills and ability to attain a delivery driver position earning $24,000.00.

In a decision dated September 25, 2007, the DRDRB held that the TPD payment determined on January 11, 2005 was properly based on the estimated position of delivery driver from November 17, 2001 to August 23, 2004. On October 1, 2007, the DRDRB clarified that the TPD for that period was correctly based on the position of delivery driver earning $24,000.00 per year. [ 30 ] On October 2, 2007, Mr. Tartaglia underwent surgery to his left shoulder to try to alleviate the pain.

He was given TTD during the period of his recovery based on a compensation rate of $57,491.46, less the ELP he was receiving. [ 31 ] On November 21, 2007, the WCB refused Mr. Tartaglia’s request for a home maintenance allowance. On January 18, 2008, this decision was upheld on appeal to the DRDRB. [ 32 ] On February 13, 2008, the WCB advised Mr. Tartaglia that Millard Heath had confirmed he was functioning at a sedentary level and had permanent work restriction. The WCB determined he was ready to resume suitable employment. His TTD benefits ended that day.

Re-employment assistance benefits were provided at a rate of $436.24 per week for 12 week (equivalent to the wage replacement benefits). On February 19, 2008, Mr. Tartaglia requested a review of this decision. [ 33 ] On March 3, 2008, the WCB suspended vocational services, including payment of the re-employment assistance benefits as it said Mr. Tartaglia was not participating in a plan to return to employability. [ 34 ] On April 2, 2008, the DRDRB upheld the WCB’s February 13, 2008 decision denying Mr. Tartaglia entitlement to TTD

benefits beyond February 13 th . [ 35 ] Mr. Tartaglia appealed the DRDRB’s June 28, 2006 and September 25, 2007 decisions, its October 1, 2007 clarification decision and its January 18, 2008 decision determining he was capable of employment in the deemed position of delivery driver earning $24,000.00 effective November 17, 2001; determining he was capable of employment in the deemed position of heavy duty operator earning $29,000.00 effective June 1, 2005; denying him entitlement to vocational rehabilitation benefits and services; and denying him a level one home maintenance allowance beyond October 2, 1007.

At the hearing, he withdrew his appeal of the second and third issues. The Commission, in a decision dated April 18, 2008, held that:

(1) Mr. Tartaglia was not capable of employment in the deemed position of delivery driver earning $24,000.00 per year effective November 17, 2001; (2) the WCB was to reassess his earning capacity by conducting a functional capacity evaluation and/or vocational evaluation, as appropriate; and

(3) Mr. Tartaglia was entitled to a level one home maintenance allowance from October 2007 to January 2008. [ 36 ] On May 1, 2008, the WCB determined that Mr. Tartaglia’s ELP should be adjusted, as at that date, based on the position of order desk clerk - electrical with a salary of $35,000.00 per year, resulting in a monthly payment of $1,038.42. [ 37 ] On June 20, 2008, Mr. Tartaglia requested a review of the March 3, 2008 WCB decision terminating his vocational rehabilitation benefits and the May 1, 2008 WCB decision calculating his ELP based on the position of order desk clerk. [ 38 ] On June 26, 2008, Mr.

Tartaglia reinstituted his appeal of the DRDRB’s June 28, 2006 decision in regard to the calculation of ELP being based on the position of heavy equipment operator and the denial of training at Keyano College. [ 39 ] On July 9, 2008, the WCB determined that the TPD benefits for the period November 17, 2001 to May 31, 2005 should be based on the position of computer numeral control (CNC) operator with an annual salary of $29,200.00. As this salary was greater than the salary for a delivery driver, there was no adjustment for the benefits. On October 20, 2008, Mr.

Tartaglia asked for a review of the decision that his ELP should be based on a position as CNC operator. [ 40 ] On November 6, 2008, the WCB re-evaluated Mr. Tartaglia’s eligibility for a monthly top-up benefit and determined the ELP should be adjusted as at May 1, 2008 based on the position of order desk clerk - concrete, with a salary of $35,457.14 and a monthly ELP of $1,012.20. [ 41 ] In a decision dated November 17, 2008, the DRDRB upheld the WCB’s July 9, 2008 decision to base the ELP on the position of CNC operator for the period November 17, 2001 to May 31, 2005. [ 42 ] On November 20, 2008, Mr.

Tartaglia asked for a review of the WCB’s November 6, 2008 decision that his ELP should be based on the position of order desk clerk - concrete earning $35,457.14. [ 43 ] On December 12, 2008, the DRDRB upheld the May 1, 2008 WCB decision to base Mr. Tartaglia’s ELP on the position of concrete order desk clerk effective May 1, 2008. [ 44 ] On January 6, 2009, the Commission granted Mr. Tartaglia’s request for an extension of the one year time period within which to appeal the DRDRB’s June 28, 2006 decision.

[ 45 ] In a clarification letter dated February 26, 2009, the DRDRB clarified that the intent of its November 14, 2008 and December 12, 2008 decisions was to exclude a minimum wage position. [ 46 ] On February 27, 2009, Mr.

Tartaglia gave notice that he was appealing the June 28, 2006 DRDRB decision confirming the WCB’s decision denying him training at Keyano College and basing his ELP as of June 1, 2005 on the position of heavy equipment operator; the April 12, 2008 DRDRB decision confirming the WCB’s decision denying him TTD from February 13, 2008; the November 17, 2008 DRDRB decision confirming the WCB’s calculation of his ELP from November 17, 2001 to May 31, 2005 based on the position of CNC operator; the December 12, 2008 DRDRB decision confirming the WCB’s calculation of his ELP from May 1, 2008 based on the position of order desk clerk; and the February 26, 2009 DRDRB decision confirming the WCB decision denying him ELP based on a minimum wage employment from November 17, 2001.

The appeals were heard on July 30, 2009. [ 47 ] On August 27, 2009, the Commission held that:

(1) The position of CNC operator was a suitable position for the purpose of estimating the worker’s earning capacity from November 17, 2001 to May 31, 2005. Therefore, the November 17, 2008 decision of the DRDRB was confirmed.

(2) The position of heavy equipment operator was not suitable employment for estimating the worker’s earning potential from June 1, 2005 to April 30, 2008 because of the physical demands of the position. The position of CNC operator would be a suitable alternative to use for the period June 1, 2005 to February 13, 2008, when full wage replacements benefits ceased. This excluded periods when the worker was in receipt of temporary replacement benefits under Policy 04-02. After the October 2, 2007 surgery, there was a worsening of the worker’s condition. The effective date was February 13, 2008. The June 28, 2006 decision was varied.

(3) The position of order desk clerk was not suitable employment for estimating the worker’s earning potential for May 1, 2008 to February 12, 2009, based on the position’s language requirements. The appeal was granted and the December 12, 2008 decision reversed.

(4) It was not appropriate to use a minimum wage hourly rate or a zero-based rate to estimate the worker’s earning capacity for November 17, 2001 to the date of the Commission decision. The question of estimating the earning capacity for the period after February 13, 2008 was referred back to the WCB. The appeal of that aspect of the November 14, 2008 and December 12, 2008 DRDRB decisions and February 26, 2009 clarification decision was denied.

(5) The worker was precluded from receiving TTD benefits for his compensable left shoulder condition beyond April 23, 2004 as that was when he was found to have permanent disability. He was found to be fit for some work after February 13, 2008. Therefore, there was no entitlement to TTD after that date. The DRDRB’s decision of April 2, 2008 was upheld.

(6) The WCB’s offer of training as a heavy equipment operator was consistent with the WCA . As the worker was no longer medically fit for such a position at the date of the Commission’s decision, he was not entitled to retraining as such. The appeal of the DRDRB’s June 28, 2006 decision was denied. [ 48 ] On September 8, 2009, Mr. Tartaglia requested that the Commission provide a “clarification” of its August 27, 2009 decision on the CNC operator issue.

He attached photocopies of two documents (3 pages in total) that he said he had offered to present at the hearing on July 30, 2009 but which the Commission had declined to review. [ 49 ] The Commission held what it termed a “documentary hearing” on November 18 th and issued a decision on November 26, 2009 refusing the application for reconsideration. That decision has not been appealed. [ 50 ] Mr. Tartaglia now appeals and seeks judicial review of the Commission’s August 27, 2009 decision.

III. The Workers’ Compensation System [51] The WCB is a statutory corporation charged with determining entitlement and compensation for work-related injuries. TheSupreme Court of Canada has affirmed the expertise and exclusive jurisdiction of workers’ compensation boards in dealing withentitlement claims: Pasiechnyk v. Saskatchewan (Workers' Compensation Board), (SCC), [1997] 2 S.C.R. 890 atparas. 32 and 38. [52] The no-fault benefit system for injured workers involves a balancing of the interests of both workers and employers.

Under ss.13.2 and 46 of the WCA, WCB claims adjudicators make initial assessments, which may be reviewed by the DRDRB (formerly the DRBand CSRC). A further appeal to the Commission is available in certain circumstances. [53] The Commission is bound by the policies of the WCB: ss. 13.2(6)(

b) of the Act; and Michailides v. Alberta (Workers’Compensation Board), 1999 ABQB 941 at para. 17, 260 A.R. 323, aff’d 2003 ABCA 49, 320 A.R. 313. IV. Standard of Review A. Failure to Allow Worker to Submit Evidence [54] Mr. Tartaglia contends that the Commission erred in law or jurisdiction in failing to allow him to be heard and to present newor additional evidence, contrary to s. 13.2(6)(

a) of the WCA. In effect, that is an argument that the Commission breach its duty offairness. In Nortel Networks Inc. v. Calgary (City), 2008 ABCA 370, 440 A.R. 325, leave to appeal to S.C.C. ref’d [2008] S.C.C.A. No.533, Slatter J.A., with whom the majority agreed on all but an unrelated issue, made the following comments (at para. 32) relating to thereview of matters of procedural fairness and natural justice: The Pushpanathan analysis does not apply to issues of procedural fairness or natural justice.

The fairness of the proceedings is notmeasured based on whether they are "correct" or "reasonable" in the Pushpanathan/Dunsmuir sense. Rather these issues are reviewedbased on whether the proceedings met the level of fairness required by law: Moreau-Bérubé v. New Brunwick (Judicial Council), 2002SCC 11, [2002] 1 S.C.R. 249 at para. 74; C.U.P.E. v. Ontario (Minister of Labour) (Retired Judges Case), 2003 SCC 29, [2003] 1S.C.R. 539 at paras. 100-103; McLeod v. Alberta Securities Commission, 2006 ABCA 231, 61 Alta. L.R. (4th) 201, 391 A.R. 121 atpara. 31; Ha v.

Canada (Minister of Citizenship and Immigration), 2004 FCA 49, [2004] 3 F.C.R. 195 at paras. 42-45. Because thecourt decides whether the fairness standard has been met without affording deference, in that sense fairness is reviewed for"correctness": Boardwalk Reit LLP at para. 174. B. Determining Matters Not Appealed [55] Mr.

Tartaglia also argues that the Commission erred in law or jurisdiction by determining matters or issues that had not beenappealed, specifically by identifying the CNC operator position as suitable for purposes of calculating ELP for the period June 1, 2005 toApril 30, 2008, after having found the position of heavy equipment operator unsuitable for that purpose. [56] The Commission has exclusive jurisdiction to examine, inquire into, hear and determine all matters and questions arisingunder the WCA and the regulations in respect of appeals from decisions under s. 46 made by a review body: s. 13.1(1) of the WCA.

Itmay confirm, reverse or vary the decision appealed, or may refer any matter back to the review body or the WCB for further action ordecision, with or without directions: s. 13.2(6) of the WCA. [57] In his notice of appeal to the Commission, Mr. Tartaglia indicated that he was appealing the DRDRB’s June 28, 2006

decision, specifically the calculation of the ELP for the period commencing June 1, 2005 based on the position of heavy equipment operator earning $29,200.00 per year. [ 58 ] Clearly, the Commission had the jurisdiction to decide on the proper calculation of ELP for that period and to vary the DRDRB’s decision on that issue. [ 59 ] In his written and oral submissions, it became evident that Mr.

Tartaglia’s complaint in relation to this aspect of the Commission’s decision is that the Commission held that the position of CNC operator was a suitable one on which to base the ELP calculation for the period in question without allowing him to make submissions on that issue. This again is a question of procedural fairness or natural justice. I agree with Mr. Tartaglia that deference need not be granted in relation to questions of procedural fairness. C. Other Aspects of the Commission’s Decision Objected to by Mr. Tartaglia 1.

Standard of review this Court should apply [ 60 ] The remaining grounds of review raised by Mr. Tartaglia in his originating notice are that the Commission erred by making assumptions or reaching conclusions not supported by the evidence, by assuming that suitable employment exists when none has been identified and by authorizing the WCB to estimate earning capacity retroactive to February 13, 2008. Specifically, he takes issue with the following decisions of the Commissions: 1. Its confirmation of the November 17, 2008 decision of the DRDRB that Mr.

Tartaglia’s ELP is fairly estimated based on the position of CNC operator for the period November 1, 2001 to May 31, 2005. 2. Its variation of the June 28, 2006 decision of the DRDRB that Mr. Tartaglia’s ELP is fairly estimated based on the position of heavy equipment operator for the period beginning June 1, 2005 by substituting the position of CNC operator (he does not dispute the Commission’s rejection of heavy duty operator as a suitable position). 3.

Its confirmation of the DRDRB’s November 17, 2008 and December 12, 2008 decisions, as clarified on February 26, 2009, that it was not appropriate to use a minimum wage position (or zero based rate) to estimate Mr. Tartaglia’s earning capacity after November 1, 2001. 4. Its confirmation of the DRDRB’s decision of April 2, 2008 upholding the WCB’s denial of Mr. Tartaglia’s entitlement to TTD beyond February 13, 2008. 5. Its referral to the WCB of the question of estimating Mr.

Tartaglia’s earning capacity after February 13, 2008. [ 61 ] These remaining issues are subject to review either for correctness or reasonableness: Dunsmuir v. New Brunswick , 2008 SCC 9 at paras. 34 and 45 , [2008] 1 S.C.R. 190. The appropriate standard of review depends on the question being determined. [ 62 ] A fresh standard of review analysis need not be undertaken if the standard of review already has been established for the tribunal and type of question in issue: Dunsmuir at para. 62 . [ 63 ] The Alberta Court of Appeal in Gahir v.

Alberta (Workers’ Compensation Appeals Commission) , 2009 ABCA 59 at para. 13 , 1 Alta. L.R. (5th) 290 set out the standards of review which apply to decisions of the Commission:

(

a) findings of fact, credibility and mixed fact and law are reviewed for reasonableness; (

b) interpretation of workers’ compensation policies, and the application of policies to particular fact situations are reviewed for reasonableness (whether a particular employee is entitled to compensation, and the level of that compensation, generally fall into this category); (

c) the

interpretation of sections of the Act lying within the expertise of the Board or the Commission are reviewed for reasonableness, as is the application of that law to particular fact situations; and (

d) true jurisdictional issues are reviewed for correctness. [ 64 ] The grounds raised relate to: findings of mixed fact and law;

interpretation of sections of the WCA lying within the expertise of the Commission, the DRDRB and the WCB;

interpretation of WCB policies; and the application of those policies to the particular fact situation here. Accordingly, the standard which this Court is to apply to its review of the Commission’s decision in relation to these remaining issues is reasonableness: Dunsmuir at paras. 52 to 54 and 60 ; Alberta (Workers’ Compensation Board) v. Appeals Commission , 2005 ABCA 276 at paras. 67 to 69 and 77 ; Alberta (Workers’ Compensation Board) v. Appeals Commission , 2005 ABCA 235 at paras. 24 and 25 ; and Buckley v.

Entz Estate , 2007ABCA at para. 27. [ 65 ] The reasonableness standard is concerned with the existence of justification, transparency and intelligibility within the decision-making process and whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law: Dunsmuir at para. 47 . 2. Standard of review the Commission should have applied to the DRDRB decision s (

a) Newton and Pelech [ 66 ] Complicating the determination of the appropriate standard of review in relation to the remaining issues is the fact that the WCA provides for an initial decision by the WCB, which may be reviewed by the DRDRB, further appealed to the Commission, and appealed yet again to this Court. In similar situations, the Court of Appeal has instructed that the standard of review to be applied by the appellate tribunal should be determined at each applicable level: Newton v. Criminal Trail Lawyers’ Association , 2010 ABCA 399 ; Pelech v. Law Enforcement Review Board , 2010 ABCA 400 ; Moll v.

College of Alberta Psychologists , 2011 ABCA 110 . [ 67 ] Newton and Pelech both concerned decisions of the Law Enforcement Review Board (LERB), an administrative tribunal charged, under the Police Act , R.S.A. 2000, c. P-17, with reviewing decisions of the chief of police and/or presiding officer regarding complaints about misconduct by police officers. In neither case did the LERB expressly consider the proper standard of review. However, it gave no deference to the decision below as it assumed in both cases that it was required to hold a de novo hearing and essentially to decide the matter afresh.

The Court of Appeal held in both cases that the LERB erred in conducting a de novo hearing, it asked the wrong question and came to an unreasonable result. [ 68 ] In Newton at paras. 41-43 , the Court of Appeal set out a number of factors to be considered by appellate tribunals in determining the proper standard for reviewing a decision of a lower tribunal, including: (

a) the respective roles of the lower tribunal and the appellate tribunal, as determined by interpreting the enabling legislation; (

b) the nature of the question in issue;

(

c) the

interpretation of the statute as a whole; (

d) the expertise and advantageous position of the lower tribunal compared to that of the appellate tribunal; (

e) the need to limit the number, length and cost of appeals; (

f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and (

g) other factors that are relevant in the particular context. [69] Initially, the parties here only addressed the standard of review to be applied by the Court to the decision of the Commission,but after the hearing they were invited by the Court to make further submissions on the impact of Newton and Pelech. (

b) WCB submissions [70] The WCB submits that Newton and Pelech are relevant to the present case as they outline the extent to which an appellatetribunal must show deference to the decision of the tribunal of first instance. It contends that applying the factors set out in Newtonmilitates in favour of the Commission applying the reasonableness standard to decisions of the WCB.

However, its submissions largelyignore the fact that the decision of the Commission under appeal/judicial review here relates to its review of decisions of the DRDRB,not those of the claims adjudicator. [71] The WCB maintains that it is the body which occupies the central position in the workers’ compensation system and, given itsmandate, polycentric function and consequent expertise, it should be entitled to the highest deference when making decisions within itsjurisdiction (Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), (SCC), [1997] 2 S.C.R. 890).

The WCBpoints out that the Commission, in contrast, does not set the level of compensation, is not responsible for maintaining the injury fund, isnot the administrator of the system, is not a policy maker, and does not have the same level of expertise or authority as the WCB. [72] The WCB says that the Commission has wrongly interpreted the WCA as requiring the hearing of an appeal to be de novo.Section 13.2(4) of the WCA says that: “... the Appeals Commission shall consider the records of the claims adjudicator and the reviewbody relating to the claim.” It maintains that appeals to the Commission are intended to be conducted primarily on the record, with anability to permit new evidence in appropriate circumstances (s. 13.2(6)(a)).

It argues that, as in Newton, the proper

interpretation of theprovisions allowing the Commission to hear new evidence is not that the appeal is de novo but only that the Commission has thediscretion to receive new evidence that was not available at the time of the original hearing or that was available but there is good reasonto admit it. [73] The WCB submits that by holding de novo hearings and extending no deference to the WCB’s decisions, the Commission istrivializing the proceedings of the decision-makers below, discouraging full participation in those proceedings, encouraging appeals andundermining the integrity of the workers’ compensation system as a whole. [74] The WCB maintains that the recent Court of Appeal decisions, in Lee v.

Alberta (Appeals Commission for Alberta Workers’Compensation), 2011 ABCA 128 at para. 33 and Watson v. Alberta (Workers’ Compensation Board), 2011 ABCA 127 at para. 46, donot establish that all Commission hearings are required to be de novo. It suggests that in stating “[a]ppeals to the Appeals Commissionare de novo,” the Court of Appeal was simply commenting on the fact that de novo hearings are the prevailing practice of theCommission.

It was not prescribing a legal requirement. [75] The WCB says that while the Commission is the master of its own process and can determine its own form of hearing, thereis a distinction between in person hearings and de novo hearings.

[ 76 ] The WCB disputes that the Commission provides injured workers with the first opportunity to appear in person to argue their case. It indicates that WCB personnel routinely meet with injured workers during the day-to-day administration of their compensation claims. It notes that the DRDRB also provides injured workers with the opportunity to have an in-person hearing and to fully argue their case. It says there is nothing preventing injured workers from presenting new or additional evidence to the DRDRB. [ 77 ] The WCB submits that, unlike the LERB in Newton and Pelech , the Commission here conducted a thorough and thoughtful review of the decision(

s) below and provided a clear, intelligible and transparent analysis of the decision(s). It also suggests that, as the Commission appears to have applied a correctness standard of review, its error in not applying the reasonableness standard is of no significance as, by necessary implication, it must have found the DRDRB’s decision(

s) to have been reasonable. (

c) Mr. Tartaglia’s submissions [ 78 ] Mr. Tartaglia contends that this issue is irrelevant as the Appeals Commission upheld the decisions of the DRDRB which are in contention. [ 79 ] If the issue is considered relevant, he notes that existing jurisprudence confirms that the Commission conducts de novo hearings and there is no indication that the Commission owes any deference to the DRDRB. He argues that the DRDRB is not polycentric and neither it nor the claims adjudicator create policy. That role is filled by the WCB’s Board of Directors.

He asserts that s. 13.1(1) of the WCA gives the Commission a broad jurisdiction. The Commission does not merely review decisions of the DRDRB, but also is entitled to make inquiries and hear new evidence. Further, in hearing an appeal from the DRDRB, the Commission is required to consider the record of both the claims adjudicator and the DRDRB.

Also, s. 13.2(6) specifies that the Commission shall give persons with a direct interest in the matter under appeal an opportunity to be heard and to present new or additional evidence, whereas s. 46 only requires the DRDRB to review the information in the WCB’s possession and to receive representations from interested parties. [ 80 ] Mr. Tartaglia takes the position that review by the DRDRB does not constitute a real remedy for an injured worker as DRDRB members are WCB employees. He also asserts that the DRDRB does not have particular expertise or an advantageous position compared to the Commission.

He argues that the wording of the WCA displays a legislative intent that an aggrieved worker be entitled to an independent and impartial determination of his or her claim, which is only consistent with the Commission hearings being de novo and appeals from the DRDRB being decided on a correctness standard. (

d) Commission submissions [ 81 ] The Commission submits that Newton and Pelech are not germane to the issues before the Court. It contends that the recent decisions of the Court of Appeal, in Lee at para. 33 and Watson at para. 46, have confirmed that Commission hearings are de novo (see also Martinson v. Appeals Commission for the Alberta Workers’ Compensation , 2005 ABQB 545 at paras. 29 , 58-61). [ 82 ] The Commission argues that if the WCB’s position is accepted, the current appeal process will fundamentally be changed and the role of the Commission marginalized.

It contends that change of this magnitude should only be effected by the legislature, not the courts. [ 83 ] The Commission submits that, in view of the fact that workers who are injured on the job are entitled to compensation and are precluded by the workers’ compensation system from taking civil action, it is reasonable that they be provided with the opportunity to appear in person before the Commission and fully present their case, even in the absence of new or additional evidence. It says that this ensures that difficult cases receive the full attention of informed experts.

It notes that the WCA does not mandate a hearing at the DRDRB level. It simply requires that the review body receive representations from the parties (s. 46(5)(a)). However, the Commission is required to hear the matter and to provide the parties with an opportunity to present new or additional evidence (s. 13.2(6)). The Commission contends that the requirement to hear additional evidence clearly signifies the legislature’s intention to provide for a de novo appeal process, as in Stewart v. Lac Ste.

Anne (County) Subdivision and Development Appeal Board , 2006 ABCA 264 , 397 A.R. 185. [ 84 ] The Commission points out that, unlike the LERB, its decisions are protected by a strongly worded privative clause ( s.

13.1(1) ). It says that dissatisfaction is all that is required to appeal a matter to it, which supports the conclusion that it is not required to review for error but must review for result. It also notes that the Court of Appeal has accepted that it has great expertise as does the WCB and that

interpretation of policy is deep within its expertise ( Alberta (Workers’ Compensation Board) v. Alberta (Workers’ Compensation Appeals Commission) , 2005 ABCA 235 , 371 A.R. 62). The Commission asserts that the it provides a quicker and more cost effective appeal mechanism than the courts and, therefore, it is an economic alternative. (

e) Analysis of issue [ 85 ] The Commission in the present case did not undertake a standard of review analysis in terms of the various DRDRB decisions appealed by Mr. Tartaglia, but I agree with the WCB that it appears to have applied a correctness standard.

In Newton at para. 38 , the Court of Appeal indicated that the standard of review that should be applied by an appellate administrative tribunal to the decisions of a tribunal of first instance should be categorized as a question of law as the correct answer largely depends on the exact wording of the statute. [ 86 ] The Court of Appeal in Newton used the Dunsmuir analysis to determine what standard of review it should apply to the decision of the LERB in its selection of the standard for reviewing the presiding officer’s decision.

It noted that there was no privative clause in terms of a presiding officer’s decision, but there was a right of appeal, signalling less deference. In the present case, there is both a privitive clause ( WCA , s. 13.1(1)) and a right of appeal ( WCA , s. 13.4(1)). The Court of Appeal in Newton found that the LERB had “no expertise in the analysis and setting of standards of review, a technical legal point in which the courts have a considerable amount of experience,” also suggesting less deference. The same applies here. Setting the standard of review in Newton required

interpretation of the appellate tribunal’s home statute, an issue on which deference often is shown. The same applies here. The Court of Appeal in Newton noted, however, that the appropriate standard of review is a question of general interest to the legal system and, therefore, a question to which Dunsmuir would suggest a correctness standard applies.

Having considered all of these factors, the Court of Appeal in Newton selected correctness as the proper standard of review for it to apply to the LERB’s implicit selection of the correctness standard of review it should apply to the decision of the presiding officer.

I reach the same conclusion here. [ 87 ] However, it is not essential in the present case to determine the proper standard of review for the Commission to have applied to the DRDRB decisions under appeal as the Commission concluded that most of the disputed decisions of the DRDRB were correct, which necessarily means that it considered them reasonable as well. [ 88 ] The DRDRB determined that heavy equipment operator was a suitable position for estimating Mr. Tartaglia’s ELP beginning June 1, 2005. The Commission overturned that decision. However, Mr.

Tartaglia is not seeking judicial review of that aspect of the Commission’s decision. He objects to the Commission’s substitution of that position with CNC operator for estimating his earning capacity for the June 1, 2005 to February 13, 2008 time period. That was a fresh decision by the Commission. [ 89 ] The DRDRB held that order desk clerk was a suitable position for estimating Mr. Tartaglia’s ELP beginning May 1, 2008. The Commission disagreed. Mr. Tartaglia does not take issue with that aspect of the Commission’s decision.

He seeks judicial review of its decision to remit the matter back to the WCB to identify a suitable position for that time period. [ 90 ] The DRDRB also appears to have applied a correctness standard to the relevant WCB decisions. Whether that was the correct standard is irrelevant for purposes of this appeal/judicial review as the DRDRB confirmed the WCB decisions, which means that it also considered them to be reasonable. V. Analysis

A. Did the Commission Breach the Duty of Fairness By Declining to Look at Certain “Pictures”? [91] Mr. Tartaglia alleges the Commission breached its duty of fairness by refusing to allow him to present new evidence at thehearing on July 30, 2009. [92] In Dunsmuir, the majority noted at para. 90 that the overarching purpose of procedural fairness is to ensure thatadministrative decision makers act fairly in coming to decisions that affect the interests of individuals. The concept of procedural fairnessis variable. Its content must be decided in the context of each case: Knight v. Indian Head School Division No. 19, (SCC), [1990] 1 S.C.R. 653 at para. 46. [93]

Section 13.2 of the WCA states: 13.2(6) In the hearing of an appeal under this section, the Appeals Commission (

a) shall give all persons with a direct interest in the matter under appeal an opportunity to be heard and to present any new oradditional evidence. [94] The following factors, taken from the majority judgment in Baker v.

Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, are relevant in determining the requirements of procedural fairness in any given context: (1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of procedure made by the agency itself. [95] I agree with Nielsen J. in Johnson v.

Alberta(Appeals Commission for Alberta Workers' Compensation), 2010 ABQB 393,31 Alta. L.R. (5th) 214 that decisions of the Appeals Commission resemble judicial decision making (at para. 40). Also, greaterprocedural protection is required due to the statutory scheme pursuant to which the Commission operates.

Section 13.4 of the WCAprovides for a limited appeal on questions of law or jurisdiction and the privative clause in s. 13.1 results in decisions of the Commissionbeing determinative of the issue before it, unless the Commission can be said to have acted unreasonably (at para. 41). The decision ofthe Commission in the present case was of importance to Mr. Tartaglia as his ability to receive certain benefits from the WCB waswholly dependent on it. Further, s. 13.2(6)(

a) of the Act provides that in the hearing of an appeal, the Commission is to give interestedpersons an opportunity to be heard and to present any new or additional evidence. [96] Mr. Tartaglia gave evidence at the Commission hearing of a visit he made to NAIT in order to learn more about the positionof CNC operator.

At a certain point, he said “... then I have some copy of some pictures.” He then spoke about being referred by adepartment head at NAIT to two books that might give him an idea about the job; the first being about the technology of machines andmachine tools, the second about “machining for the manpower.” He then stated, “I could take only some pictures, I don’t know if youwant to see some, I don’t know.” The Chair responded, “No, that is fine right now.” [97] The “pictures” were not admitted into evidence and it is not clear from the transcript what those “pictures” were. However, in

[ 97 ] The “pictures” were not admitted into evidence and it is not clear from the transcript what those “pictures” were. However, in his September 8, 2009 letter to the Commission requesting “clarification” of its August 27, 2009 decision, Mr. Tartaglia referred to and attached photocopies of two documents (3 pages in total) that he claimed the Commission declined to receive at the appeal hearing on July 30, 2009.

The first document, apparently from Wikipedia, is entitled “Numerical control” and contains pictures of a CNC turning centre and panel together with an explanation of numerical control, but with no discussion of the job requirements of machine operator. The document is dated September 2, 2009, which is after the date of the appeal hearing. Therefore, it cannot have been precisely the same document which Mr. Tartaglia offered to the Commission on July 30 th . The second document consists of two out of four pages of an occupational profile for a machinist produced in February 2006, with updates to February 2008.

The profile states that NAIT offers a one year CNC machinist technician certificate program for which the entrance requirement is grade 10 with English and applied or pure math 10. [ 98 ]

Section 13.1(7) of the WCA provides that the Commission, at its discretion, may reconsider any matter that it has dealt with and may confirm, rescind or amend any decision or order previously made by it.

Section 5.5(2) of the Commission’s Appeal Rules identifies the threshold requirements for the Commission’s reconsideration of one of its own decisions as being that: (

a) the decision shows an obvious and important error of law or jurisdiction; (

b) the decision shows an important error of fact, or an error of mixed fact and law... that affects the decision; © the decision was based on a process that was obviously unfair or unjust. The Appeal Rules also allow for reconsideration based on new evidence or evidence that was not available on reasonable and justifiable grounds at the hearing, and which is relevant and is likely to have had an impact on the original decision (s. 5.5(3)). [ 99 ] In its reconsideration application decision of November 26, 2009, the Commission noted that the “numerical control” document offered by Mr.

Tartaglia contained no material dealing with the job requirements of a CNC operator and the occupational profile document offered no new evidence about the position of CNC operator. It found that the original panel had dealt with Mr. Tartaglia’s arguments that he did not possess the education, experience or skill necessary for the CNC operator position. It held that Mr. Tartaglia had presented no new evidence that would have an impact on the original decision as all of the documents provided were either before the original panel or the information in them was argued before and considered by the original panel.

Therefore, the Commission refused the application for reconsideration. [ 100 ] The reconsideration application decision has not been appealed. [ 101 ] I find that it was not procedurally unfair for the Commission to have declined Mr. Tartaglia’s offer to show it some “pictures” at the July 30, 2009 hearing. He did not indicate the subject of the pictures, identify their origin and did not discuss their relevance to the issue under appeal. Nor did he actually ask that they be admitted into evidence.

He simply asked the Commission if it wanted to see some “pictures.” The Commission may have been under the impression at the time that these were pictures of a CNC machine (as indeed one was) and that knowing what the machine looked like would not be of assistance in deciding the issue before it. [ 102 ] Moreover, even if the Commission was in breach of its duty of fairness, that error was corrected by means of the “documentary hearing” and reconsideration application decision, in which the Commission considered the relevance of the documents and whether they likely would have had an impact on its original decision. [ 103 ] The Commission held in its reconsideration application decision, and I agree, that the proposed evidence would not have had an impact on the Commission’s August 27, 2009 decision. [ 104 ] Therefore, I conclude that there was no breach of the duty of fairness by the Commission.

The appeal on that ground is denied. B. Did the Commission Breach the Duty of Fairness by Deciding a Matter Without Permitting Submissions by Mr. Tartaglia? [ 105 ] Mr. Tartaglia argues that the issue of whether he should be deemed a CNC operator for the period of June 1, 2005 to April 30, 2008 for purposes of calculating his ELP was not before the Commission and was decided by it without permitting him the opportunity to make submissions on the issue. [ 106 ] The Commission overturned the DRDRB’s decision upholding the WCB’s finding that Mr.

Tartaglia was capable of performing the heavy equipment operator job in that period of time. The Commission already had determined that the CNC operator

position was suitable for use in calculating his ELP up to May 31, 2005. It had accepted the WCB’s decision that from the date of Mr. Tartaglia’s surgery on October 2, 2007 until his TTD benefits ended on February 13, 2008, he was unfit for all suitable work. It found that: After the October 2, 2007 surgery, the medical evidence reviewed supports a permanent worsening of the worker’s condition, reflected in the much more limiting restrictions associated with the left arm.

This worsening reduced the worker’s left arm material handling from about a medium level to a sedentary level with additional permanent restrictions.

We find that the effective date of this worsening is the day the Workers’ Compensation Board ceased paying full wage replacement benefits to the worker, February 13, 2007. [ 107 ] The Commission concluded that the CNC operator position used for the earlier period would be suitable for the period June 1, 2005 until February 13, 2008 (adjusted to account for his TTD during the period of recovery from his surgery). [ 108 ] The Commission maintains that it was entitled to decide the suitability of the CNC operator position for the given period as the Alberta Court of Appeal in Gahir at para. 32 expressed concern with respect to workers being caught in a “revolving door” and concluded that the Commission should take jurisdiction and ensure that the worker receives benefits, where appropriate. [ 109 ] According to the Commission in its August 27, 2009 decision, Mr.

Tartaglia asked that it not return his file to the WCB with a direction that it select a different position to use for estimating his earnings. He asked that the Commission provide some finality to the process. [ 110 ] The Commission contends that it would be illogical to expect that Mr. Tartaglia, who was properly deemed a CNC operator until May 31, 2005, would have been unsuitable for that position as of June 1, 2005, in the absence of evidence supporting such a transformation. It points out that it sent the issue back to the WCB for the period after February 13, 2008, when Mr. Tartaglia’s TTD benefits ended.

It also notes that Mr. Tartaglia is complaining about the Commission referring that matter back to the WCB rather than providing relief. [ 111 ] While attempting to avoid a revolving door situation is a laudable objective, it does not excuse procedural unfairness. Mr. Tartaglia was not given an opportunity at the July 30, 2009 hearing before the Commission to make submissions as to the suitability of the CNC operator position for calculating his ELP from June 1, 2005 to April 30, 2008. [ 112 ] However, Mr.

Tartaglia subsequently asked in his letter of September 8, 2009 that the Commission reconsider its decision that CNC operator would be a suitable alternative to heavy duty equipment operator for use in estimating his earning capacity over that period. He did not complain at that time that the process leading up to that aspect of the Commission’s decision had been unfair or unjust. He simply relied on the same arguments he had made at the July 30 th hearing - that he did not have grade 10 English or mathematics, he had no computer skills and he had not been sent for upgrading.

He did not argue that his condition was worse during the time period in question as compared to the preceding period. [ 113 ] In its reconsideration application decision of November 26, 2009, the Commission took into consideration Mr. Tartaglia’s argument that the original Commission panel erred in finding that the position of CNC operator was suitable for purposes of calculating his ELP as he did not possess the appropriate skills to use the computer or to read blueprints, he did not have grade 10 math or English, and he did not have sufficient written English for the position of CNC operator.

The Commission did not find that the original panel had made any error of fact relating to Mr. Tartaglia’s education or skill level. It concluded that the original panel had acknowledged his arguments and had responded to them. Further, the Commission concluded that the original panel had not made an error of fact relating to Mr. Tartaglia’s skill. [ 114 ] I conclude that any procedural unfairness that occurred in terms of the original panel finding that CNC operator was a suitable position for estimating ELP from June 1, 2005 to April 30, 2008 without hearing from Mr.

Tartaglia on that issue was corrected through the reconsideration application process. [ 115 ] The appeal on that ground is denied.

C. Was the Remainder of the Commission’s Decision Reasonable? [ 116 ] A number of the issues are interrelated. As a result, rather than approach this analysis by dealing with each of the issues separately, I will discuss them in relation to the relevant time periods. The first two issues (identified in para. 60 above) relate to the calculation of Mr. Tartaglia’s benefits for the period November 17, 2001 to February 13, 2008. The fourth and fifth issues relate to the calculation of Mr. Tartaglia’s benefits for the period after February 13, 2008.

The third issue impacts both calculations and, therefore, will be addressed in both sections. 1. The calculation of Mr. Tartaglia’s ELP for the period November 17, 2001 to February 13, 2008 (

a) General considerations of the Commission [ 117 ] The Commission considered ss. 43(1) and 63 of the WCA . It reviewed WCB Policy 04-04, which states that when a compensable accident results in permanent disability, the WCB provides Non-ELP benefits and permanent disability benefits “for any permanent impairment of earning capacity attributable to the compensable injury.” [ 118 ] It noted that

Part II, Application 1, Question 4 of the Policy states that the estimate of earning capacity is based on information in the vocational plan, in which suitable employment is identified. Question 5 specifies that for the purposes of estimating earning capacity, “suitable employment” means: ... employment which is consistent with the worker’s ability...

The WCB’s assessment of ability will be based on physical, vocational, social, and psychological circumstances and such other factors as the WCB may consider relevant. [ 119 ] The Commission reiterated that the focus of the WCA and WCB policy is on returning the worker to employability, not necessarily employment. [ 120 ] The Commission proceeded to consider whether Mr. Tartaglia would have been capable of performing the jobs identified by the WCB; i.e. whether they were consistent with Mr. Tartaglia’s physical, vocational, social and psychological circumstances.

When it found that a position was not suitable, it proceeded to determine if it would be more appropriate to direct the WCB to select a different position or to do so itself, and if a minimum wage or zero-based hourly rate would be more appropriate. (

b) Whether Mr. Tartaglia was capable of performing the CNC operator position for the period November 17, 2001 to May 31, 2005 [ 121 ] The position of CNC operator eventually was selected by the WCB for the time period November 1, 2001 to May 31, 2005.

The Commission considered the job demands based on five labour market analyses, three of which rated the position as being at a light level of physical activity and two as light to medium; three as demanding no repetitive movements, two as requiring repetitive arm and shoulder movements; four as requiring no minimum education level and one as requiring grade 12 or equivalent. Some experience was noted as being beneficial and basic written and verbal English essential. [ 122 ] The Commission found that Mr.

Tartaglia was physically capable of performing the CNC operator job during the relevant period based on a February 2, 2001 functional capacity evaluation noting that he demonstrated manual handling tolerances at an overall medium level with reduced tolerances for sustained elevated work with his left arm, which it concluded was within the physical description of the position. It considered a March 8, 2001 report on his discharge from rehabilitation stating that he was fit to work at a medium-heavy level on a rare basis. It referred to physical therapy reports from September to December 2004 stating that Mr.

Tartaglia was fit for modified work at a light level and interpreted those as supporting his fitness for the position as three of the five labour market analyses identified that only a light level of work was required.

[ 123 ] The Commission noted reports from Mr.

Tartaglia’s family physician and a physical therapist that he was unfit to work or was restricted to sedentary work, but gave reasonable explanations as to why it preferred the results obtained by the WCB work assessment centre; namely, that this was a specific quantitative assessment of the worker’s work capacity, the April 13, 2005 physical therapy assessment did not offer objective reasons for the work restrictions, and the May 26, 2005 physician’s report only noted pain in the objective examination and the doctor dramatically altered his fitness for work assessment two weeks later.

The Commission also reviewed a functional capacity evaluation report dated August 25, 2004 that reported that Mr. Tartaglia was fit to work up to a heavy level on a rare basis, with certain permanent work restrictions, compared this to a key for physical demands, and determined that at most he was fit to a medium to heavy level of manual handling. It concluded that over the period in question, Mr. Tartaglia was fit at least to a medium level of physical effort and was physically capable of undertaking the CNC operator position. [ 124 ] The Commission found that Mr.

Tartaglia met the minimum education and experience requirements for the position as four out of five reports describing the position listed no specific minimum education requirements; skills and experience were listed as preferred but not mandatory; and he should have some transferable skills which would partly mitigate the lack of experience on the CNC machine. The Commission also indicated that it preferred the documentary evidence represented in the labour market reports over Mr.

Tartaglia’s hearsay evidence of a discussion he had with a technical college instructor who taught courses on similar machinery. [ 125 ] The Commission acknowledged that, in its previous decision of April 18, 2008, it had found that Mr. Tartaglia did not have the writing ability to perform the duties of a delivery driver. It concluded Mr.

Tartaglia had the written English capability for the CNC operator position as the positions referred to in its April 2008 decision were listed as requiring basic/fluent written and verbal English skills, suggesting a requirement higher than just the basic level listed for CNC operator. It considered 2004 vocational and academic assessments. It noted that a November 2004 academic assessment found that Mr. Tartaglia was writing English at approximately grade 2.5 level. The Commission commented that while Mr.

Tartaglia would require upgrading prior to commencing a college course, it did not understand that to be an indication he would be unable to undertake the CNC operator position as four of the five labour market analysis reports described no specific minimum education requirement. The Commission interpreted the requirement for basic written English in the labour market analyses as meaning “an ability to complete forms related to the position such as production paperwork.” [ 126 ] In my view, the Commission’s confirmation of the DRDRB’s November 17, 2008 decision confirming the WCB’s finding that Mr.

Tartaglia was capable of performing the CNC operator position during this time period meets the reasonableness standard. (

c) Whether Mr. Tartaglia was capable of performing the CNC operator position for the period June 1, 2005 to February 13, 2008 [ 127 ] The Commission overturned the DRDRB’s decision that Mr. Tartaglia had the physical capability to perform the job of heavy equipment operator during the time period of June 1, 2005 to April 30, 2008. Mr. Tartaglia does not take issue with the Commission’s decision in that regard. [ 128 ] The Commission determined that Mr.

Tartaglia would have been capable of performing the CNC operator work up to February 13, 2008, the date when the TTD benefits he had been receiving following his surgery ended (excluding periods when he was receiving TTD). It gave no reasons for its conclusion in that regard. [ 129 ] For a decision to be reasonable, there must be justification for it and there must be transparency and intelligibility within the decision-making process.

The decision must also fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law: Dunsmuir at para. 47 . [ 130 ] The Commission argues on this judicial review that it would be illogical to expect that if Mr. Tartaglia was properly deemed a CNC operator until May 31, 2005, on June 1, 2005 he would have been incapable of performing that job in the absence of evidence supporting such a transformation. [ 131 ] A report by his physician on July 28, 2005 described his work capability as sedentary to light, with restrictions.

His physicians had offered the same description during the previous time period but the Commission preferred the results obtained by the WCB work assessment centre.

[ 132 ] On August 15, 2005, his physician noted that Mr. Tartaglia reported his symptoms seemed to be getting worse. The doctor recommended obtaining a surgical opinion to see if something could be done about the partial tear of Mr. Tartaglia’s rotator cuff tendon and the severe arthrosis of his AC joint. However, a report by another of his physicians dated November 1, 2005 assessed him as having capacity for light work, with restrictions. The Commission accepted that the CNC operator position required only a light level of physical activity. [ 133 ] In a request for review on January 6, 2006, Mr.

Tartaglia indicated his condition was worse than in June 2005. Nevertheless, his own physician assessed Mr. Tartaglia on January 11, 2005 as being capable of light work, with restrictions of “no lifting, pushing or pulling with left upper limb”. On March 2, 2006, he was assessed by his physician as being capable of sedentary to light work, with work restrictions of “no lifting, reaching, carrying, repetitive use of l[eft] shoulder”.

The Commission accepted that the CNC operator position did not require repetitive arm and shoulder movements. [ 134 ] An anesthesiologist at the University of Alberta Multidisciplinary Pain Centre saw Mr. Tartaglia on May 16, 2007. He noted that Mr. Tartaglia was de-conditioned and recommended that he pursue a course of retraining with a view to returning to light work. In August 2007, Mr. Tartaglia was seen by an orthopaedic specialist. After that, the focus of most medical reports was on whether surgery was appropriate. [ 135 ] During the hearing before the Appeals Commission, Mr.

Tartaglia’s counsel submitted: Angelo’s... medical condition hasn’t really changed in a long time and he really wanted to have the surgery to try to - to try to help... with his pain and... his functions. [ 136 ] The Commission accepted the WCB’s decision that Mr. Tartaglia was unfit for all suitable work from the time of his surgery on October 2, 2007 to February 13, 2008. Mr. Tartaglia does not take issue with that decision. He received TTD during that period. [ 137 ] The Commission accepted that after the October 2, 2007 surgery and his recovery period, there was a permanent worsening of Mr.

Tartaglia’s condition, reflected in greater restrictions associated with his left arm. [ 138 ] The Commission did not give reasons for its decision that Mr. Tartaglia would have been capable of working as a CNC operator during the period from June 1, 2005 to February 13, 2008 (excluding the time when he received TTD).

However, it can be inferred from its conclusion that heavy equipment operator was not a suitable position over that time period and from its finding that his condition permanently worsened effective February 13, 2008, that it considered the evidence relating to the time period in question and concluded that his condition had not deteriorated up to the time of his surgery, at least to such an extent that he was physically incapable of undertaking the CNC operator position. In my view, its decision meets the reasonableness standard. (

d) Whether retroactive deeming of suitable employment is appropriate [ 139 ] One of the central questions on this judicial review/appeal is whether retroactive deeming of suitable employment is reasonable. In situations where it will not have an effect on ongoing ELP, retroactive deeming presumably occurs in order to determine whether any adjustment in ELP may or should be made retroactively. [ 140 ] In its August 27, 2009 decision, the Commission addressed whether a minimum wage or zero-based rate position should be used to estimate Mr.

Tartaglia’s impairment of earning capacity from November 17, 2001 to February 13, 2008. It concluded that they should not be since it retroactively had determined that the position of CNC operator was suitable for estimating Mr. Tartaglia’s earning capacity over that time period. [ 141 ] Mr. Tartaglia points out that it was not until July 9, 2008 that the WCB identified CNC operator as a suitable position for estimating his earning capacity for the period November 17, 2001 to May 31, 2005. By then, he was physically incapable of performing that job.

He refers to WCB Policy 04-05, which states that: “[t]he WCB will help the worker identify and develop skills and capabilities to competitively pursue employment.” He argues that retroactive deeming of suitable employment in 2008 does not “help the worker” identify and develop skills to competitively pursue such employment in 2001. He also points out that the same policy states: “[t]he WCB

considers a worker employable when suitable employment has been identified which the worker is capable of performing.” Mr. Tartaglia takes the position that use of the term “when” signals a point of time. He says the corollary of the policy is that a worker is not employable when suitable employment has not been identified. [ 142 ] Mr. Tartaglia advances the same arguments with respect to the time period June 1, 2005 to April 30, 2008. The WCB identified heavy equipment operator as a suitable position for that period.

It was not until July 2008 that the WCB identified CNC operator as suitable for the preceding period of time and not until the Commission’s August 27, 2009 decision that CNC operator was identified as being suitable for this period of time as well. [ 143 ] Once a worker has a permanent disability, entitlement to compensation benefits is determined under Policy 04-04,

Part 1, which states that compensation for such takes the form of a non-ELP, which is a lump sum payment based on the measurable clinical impairment, and ELP, which is a periodic payment based on the loss of earning capacity caused by the disability. [ 144 ] Under WCB Policy 04-04,

Part II, Application 1, which applies to the determination of permanent impairment of earning capacity, once the worker has reached a medical plateau, has completed the vocational rehabilitation plan, and is considered employable, the WCB compares the worker’s annual net earnings at the time of the accident with the worker’s estimated post-accident net earnings and then evaluates whether any reduction in earnings is attributable to the permanent disability.

The WCB estimates the worker’s earning capacity in suitable employment: when a worker does not engage in employment, despite their ability to do so; when a worker is unable to secure suitable employment; or when a worker engages in employment which fails to maximize earning capacity. The policy defines “suitable” as “employment which is consistent with the worker’s ability and which is within the worker’s locale or may be obtainable where relocation is reasonable”.

The estimate of earning capacity is usually based on information related to the vocational plan, which identifies suitable employment and the worker’s earning capacity in that employment. [ 145 ] Clearly, retroactive deeming of suitable employment is not the optimum way in which to achieve the goals of this policy. It does not allow the WCB to help the worker identify and develop skills and capabilities to competitively pursue employment if the worker does not already possess those skills and capabilities. However, the policy refers to “helping” the worker.

As noted by the Commission in its discussion of whether Mr. Tartaglia was entitled to be trained as a heavy equipment operator, the process is a cooperative one that requires involvement of both the WCB and the worker. The worker is not relieved of all responsibility for identifying employment which would be suitable given his or her abilities. [ 146 ] The WCB policy considering a worker employable “when” suitable employment has been identified which the worker is capable of performing need not be interpreted in the manner suggested by Mr. Tartaglia.

A worker can obtain employment consistent with his or her abilities without some form of “suitable employment” first having been identified by the WCB. Clearly, in that circumstance, the worker would be considered “employable.” The policy can be interpreted simply to mean that a worker’s employability during a given time period can be established once suitable employment has been identified (and not successfully appealed). [ 147 ] Retroactive deeming is not precluded by the WCA . [ 148 ] In the present case, the WCB’s and Commission’s retroactive deeming of suitable employment took into account Mr.

Tartaglia’s abilities during the relevant time period. [ 149 ] As previously stated, the practical reason for retroactive deeming is to determine what the worker’s impairment of earning capacity was for the relevant time period and to assess whether any adjustment should be made in the ELP. [ 150 ] If it had been determined retroactively that Mr. Tartaglia’s earning capacity was impaired to a greater extent than originally estimated, it would have been unfair to Mr.

Tartaglia not to retroactively adjust his ELP, presuming that WCB policy did not preclude such an adjustment in his favour. [ 151 ] Similarly, it is a matter of WCB policy (or the common law) whether a retroactive negative adjustment may or should be made in circumstances such as this, where it is retroactively determined that the impairment of earning capacity was not as great as originally

estimated. The parties did not advise the Court whether there is any WCB policy in relation to retroactive adjustment of ELP. [ 152 ] I conclude that it was reasonable for the Commission to uphold the DRDRB’s decision confirming the WCB’s decision retroactively deeming CNC operator to be suitable employment for the November 17, 2001 to May 31, 2005 time period. Further, I conclude that it was reasonable for the Commission to retroactively deem CNC operator to be suitable employment for the June 1, 2005 to February 13, 2008 period.

However, in the absence of evidence on WCB policy, if any, in relation to retroactive negative adjustment of ELP, and given that the parties did not argue that issue directly, my conclusions are not to be taken as a comment on whether such an adjustment can or should be made. (

e) Whether Mr. Tartaglia’s ELP from November 17, 2001 to February 13, 2008 should be based on minimum wage [ 153 ] On February 26, 2009, the DRDRB issued a decision clarifying that the intent of its November 14, 2008 and December 12, 2008 decisions was that a minimum wage position would not be suitable for purposes of estimating Mr. Tartaglia’s loss of earning capacity after November 17, 2001. The reasoning of the DRDRB was that Mr.

Tartaglia had the physical capabilities and skills to perform the positions of CNC operator and concrete order desk clerk and these positions would maximize his earnings capacity. [ 154 ] The Commission held that, since it had found CNC operator to be a suitable position for estimating Mr. Tartaglia’s earning capacity from November 1, 2001 to February 13, 2008, it need not consider if an estimate based on minimum wage or a zero-based rate would be suitable for that period. Its decision in that regard was reasonable. 2. The calculation of Mr.

Tartaglia’s benefits for the period February 13, 2008 to August 27, 2009 (

a) Order desk clerk position [ 155 ] The WCB identified order desk clerk as a suitable position for estimating Mr. Tartaglia’s earning capacity after May 1, 2008. [ 156 ] The Commission overturned the DRDRB’s decision of December 12, 2008, which upheld the WCB’s decision in that regard. [ 157 ] The Commission reviewed the evidence and concluded that Mr. Tartaglia was not capable of performing that job as he did not have sufficient English language capability to perform the job of order desk clerk and due to a permanent worsening of the restrictions affecting him after February 13, 2008. [ 158 ] Mr. Tartaglia does not take issue with the Commission’s decision on that issue. (

b) Denial of TTD beyond February 13, 2008 [ 159 ] The Commission confirmed the DRDRB’s decision of April 2, 2008 upholding the WCB’s denial of Mr. Tartaglia’s entitlement to TTD beyond February 13, 2008. [ 160 ] Mr. Tartaglia argues that he is entitled to TTD as he is largely unemployable due his disability, his basic English skills and education level or is employable only in a minimum wage position. [ 161 ] Section 56(8) of the WCA states that compensation for TTD is payable to the worker as long as the disability lasts.

WCB Policy 04-02 provides that a worker is eligible for TTD benefits when there is medical evidence the work-related injury has resulted in temporary work restrictions which prevent the worker from resuming pre-accident employment or other suitable employment. TTD is not payable if the weight of medical evidence indicates the worker is considered fit to return to suitable employment or the disability is considered permanent.

[ 162 ] Pursuant to Policy 04-04,

Part I, a worker is considered to have a permanent disability when a work injury results in a permanent measurable clinical impairment, or a permanent impairment of earning capacity due to compensable work restrictions, or both. [ 163 ] The WCB found that Mr. Tartaglia had a permanent disability as of April 23, 2004. That decision was not appealed. [ 164 ] In my view, having considered the WCA , WCB policy and the evidence, it was reasonable for the Commission to uphold the DRDRB’s and WCB’s decisions denying Mr. Tartaglia TTD beyond February 13, 2008. [ 165 ] However, the amount of compensation he is entitled to for his permanent disability still remains in issue. (

c) Referral back to WCB [ 166 ] The Commission proceeded to refer the question of estimating Mr. Tartagli

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