Andre St. Cyr Applicant - v. -, 2011 ABQB 407

Court of Queen ’ s Bench of Alberta Citation: St. Cyr v. Alberta (Workers ’ Compensation Board), 2011 ABQB 407 Date: 20110707 Docket: 1003 16444 Registry: Edmonton Between: Andre St. Cyr Applicant - and - The Workers ’ Compensation Board and Appeals Commission for Alberta Workers ’ Compensation Respondents _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.E. Topolniski _______________________________________________________ I. Introduction..............................................................................................................

Page: 2 II Facts........................................................................................................................ Page: 2 III Issues...................................................................................................................... Page: 5 IV Analysi s ................................................................................................................... Page: 6 A. Do the doctrines of res judicata and issue estoppel apply?................. Page: 6

B. Was there a Breach of the Duty of Fairness and Rules of Natural Justice?....................................................................................................... Page: 7 C. Standard of review................................................................................... Page: 10 i. What is the appropriate standard of review?............................ Page: 10 ii. What is “reasonableness”?........................................................ Page: 14 D. Was the Appeals Commission’s decision reasonable?..................... Page: 15 i.

The Legislation, the WCB Policies, and the Statutory Bodies Page: 15 ii. Mr. St. Cyr’s submissions........................................................... Page: 16 iii. Is Mr. St. Cyr entitled to full wage replacement benefits from March 22, 2002 to April 2006?............................................................................................ Page: 19 iv. Did the Appeals Commission unreasonably interpret the Act given the four-year delay between the accident and the payment of benefits? ............... Page: 23 v. Did the Appeals Commission err in concluding that Ft.

McMurray was an appropriate location to determine suitable employment?............................ Page: 24 vi. Is Mr. St. Cyr entitled to TTD benefits from March 18, 2007?. Page: 25 V. Conclusion............................................................................................................ Page: 25 APPENDIX....................................................................................................................... Page: 26 I. Introduction [ 1 ] Mr. St.

Cyr appeals and seeks judicial review of a decision of the Workers’ Compensation Appeals Commission issued on March 29, 2010 (“Decision”). [ 2 ] The Appeals Commission is an appellate body that hears appeals from the Workers’ Compensation Board (“WCB”), in particular the Dispute Resolution and Decision Review Body (“DRDRB”), under s. 13.1 of the Workers Compensation Act , c. W-15 (“Act”). II Facts [ 3 ] Mr. St. Cyr, was injured in a workplace accident on March 2, 2002, when he fell while operating heavy equipment. His employer placed him on modified duties.

He was laid-off on March 22, 2002, but did not inform the WCB of that. [ 4 ] The WCB accepted Mr. St. Cyr’s claim, advised him to submit receipts for medical supplies, and explained that temporary total disability benefits (“TTD”) were not available since his injuries were minimal and he had not lost time from work. [ 5 ] The WCB paid for Mr. St. Cyr ‘s physical therapy treatments until March 18, 2002 when it learned from the physiotherapist that Mr. St. Cyr had not appeared for any further treatments.

[ 6 ] Mr. St. Cyr returned to work as a heavy equipment operator for a brief period in August 2002 in his home province, Quebec. There, he unsuccessfully sought workers’ compensation from the CSST (Quebec’s workers’ compensation body) for a neck sprain. [ 7 ] The WCB lost contact with Mr. St. Cyr until, in November 2002, it received information that he was being treated by a doctor in Quebec. The WCB reopened its file, and in December 2002, sought information to assess Mr. St. Cyr‘s eligibility for ongoing benefits or services. Medical reports from Quebec health service providers disclosed that Mr. St.

Cyr complained of intermittent pain in his neck, and numbness and burning pain in his arms in August 2001. [ 8 ] An MRI conducted in January 2003 indicated that Mr. St. Cyr had spondylodiscarthrosis. [ 9 ] Dr. Deshaies provided a medical opinion dated June 20, 2003, in which he opined that Mr. St. Cyr’s “cervical condition is strictly the result of prolonged and sustained exposure to low-frequency vibrations during the operation of heavy machinery. This condition was aggravated by accidents suffered in 2001 and 2002.” [ 10 ] In 2006, Mr. St.

Cyr appealed the WCB’s refusal of his claim to the Appeals Commission. [ 11 ] In addressing causation, the Appeals Commission (“2006 Panel”) found that the accident caused or contributed to Mr. St. Cyr’s symptoms (“Causation Decision”).

It found that the accident caused a cervical disc bulge and aggravated a pre-existing degenerative disc disease “to the point that he was unable to return to his date of accident employment” (para. 72), and that “... the worker’s neck problems became worse after the March 2, 2002 accident and progressed to the point where he was unable to work at all, even though he did attempt to return to work in August 2002" (at para. 70.1).

All remaining issues (entitlement to benefits including the reinstatement of disability benefits and entitlement to rehabilitation services, economic loss payments, and non-economic loss payments) were remitted to the WCB. [ 12 ] The WCB sought Mr. St. Cyr’s tax information for 2002 to 2005 to assess his entitlement to retroactive compensation benefits. It also sought independent medical examinations by a psychiatrist and a neurologist to ascertain Mr. St. Cyr’s fitness for work and whether further investigation or treatment was required. [ 13 ] Dr. Gordon King, the psychiatrist, met with Mr. St.

Cyr on July 11, 2006. He reported that, from a psychiatric viewpoint, Mr. St. Cyr was fit for some kind of work. [ 14 ] Dr. Roberts, the neurologist, met with Mr. St. Cyr on July 12, 2006, and reported that a moderate injury had aggravated a long history of repeated trauma to the neck. Dr. Roberts opined that the duration of unresolved neck pain led to a very poor prognosis, questioning whether there was embellishment and commenting that “There is an element of uncertainty related to his pain syndrome.

Some of the symptoms he describes are not compatible with any recognized pain syndrome that I can appreciate.” He suggested retraining, adding that “…it is difficult to imagine any work that he would be suitable for with his inability to work more than 1-2 hours…” He ordered an MRI and bone scan and recommended a psychiatric review because of his concern that Mr. St. Cyr was embellishing. [ 15 ] On August 24, 2006, the WCB sought more information to confirm Mr. St.

Cyr’s pre-accident earnings, explaining that absent such information it could not determine his eligibility to wage loss benefits and set his compensation rate. [ 16 ] In early October 2006 the WCB paid Mr. St. Cyr TTD retroactive to April 3, 2006. Then, the WCB had not paid any TTD or Temporary Partial Disability (“TPD”) benefits for the period from the accident date to April 3, 2006. The WCB continued to gather medical reports from health service providers in Quebec and CSST to determine Mr. St.

Cyr’s functional capacity for the period March 21, 2002 (when he was laid off) to April 3, 2006. [ 17 ] In November 2006 the WCB received some information about Mr. St. Cyr’s pre-accident earnings. Also in November 2006, Mr. St. Cyr underwent a psychological assessment conducted by Dr. Gervais who opined that Mr. St. Cyr had no restrictions on the basis

of a DSM-IV diagnosis and could perform suitably modified work duties that respected any objectively defined medical restrictions. [ 18 ] In early December 2006 Mr. St. Cyr underwent a comprehensive functional capacity evaluation which identified certain lifting, flexion, and positioning concerns, as well as a need to avoid excessive vibration. [ 19 ] In mid-March, 2007, a WCB medical consultant, Dr. Magnan, reviewed all of Mr. St. Cyr’s medical information from the date of the accident. Dr. Magnan’s view was that Mr. St.

Cyr’s neck pain and symptoms were the same as in 2003, that he could have performed work at a light level with certain restrictions from 2002 to 2006, and that he could then work up to a medium level if he avoided driving with vibration and jarring. [ 20 ] On March 16, 2007, the WCB advised Mr. St. Cyr that he was fit to return to work at a medium level with permanent restrictions. Two days later, it terminated Mr. St. Cyr’s TTD benefits and offered him services to assist with return to work.

The WCB provided re-employment assistance benefits (the equivalent to full TTD benefits) for the period March 19, 2007 to June 3, 2007. [ 21 ] By June 2007, Mr. St. Cyr refused the WCB’s offer for retraining, and on June 20, 2007, the WCB estimated his earning ability (on the basis of a desk clerk at a starting salary of $14.50/hour). It paid Mr. St. Cyr an economic loss payment (ELP) of $1,698.32/month effective June 4, 2007. [ 22 ] In September 2007, the WCB determined that Mr. St.

Cyr was entitled to a retroactive TPD payment for the period March 22, 2002 to April 2, 2006 calculated on the basis of the starting hourly salary of a front desk clerk, which was $8.50/hour. [ 23 ] Mr. St. Cyr appealed to the DRDRB (“TPD Ruling”) which upheld the result. In turn, he appealed the TPD Ruling to the Appeals Commission. The decision released on November 5, 2008 (“2008 Decision”) partly provides that: a. Mr. St. Cyr’s entitlement to TTD benefits ended March 18, 2007 as he had permanent work restrictions and was therefore eligible for permanent disability benefits after that date; b. Mr. St.

Cyr’s post accident earning capacity based on a front desk clerk position was reasonable, but should not be restricted to wages in Fort McMurray; c. Mr. St. Cyr was entitled to full wage loss benefits (TTD) for the period of September 22, 2002 to April 2, 2006; and d. TPD for the period March 22, 2002 to September 21, 2002, based on the deemed earnings of a front desk clerk was appropriate. [ 24 ] On November 20, 2008, the WCB paid Mr. St. Cyr a lump sum payment of $89,997 for additional TTD benefits for the period September 22, 2002 to April 2, 2006. His deemed post-accident earnings were reduced to $11/hour.

The result was payment of full wage loss benefits for the period September 22, 2002 to June 3, 2007. [ 25 ] In March 2009 Mr. St. Cyr successfully sought reconsideration of the 2008 Decision. The Appeals Commission vacated the 2008 Decision because the panel failed to apply s.63 of the Act in considering non-compensable conditions (at para.10). [ 26 ] A new Appeals Commission hearing was held on March 29, 2010 (“2010 Panel”) which resulted in the Decision. The 2010 Panel ruled that the evidence supported these findings: a. Mr. St. Cyr was capable of suitable modified employment between March 22 and April 6, 2006;

b. Mr. St. Cyr was capable of performing the employment identified by the WCB for the purpose of estimating his earning capacity during the relevant period; c. Mr. St. Cyr was not entitled to full wage replacement benefits after March 18, 2007; and d. The position of a front desk clerk earning $14.50 per hour, in the municipality in Ft. McMurray was suitable for estimating his post-accident earning capacity and calculating his wage loss benefit after March 18, 2007. III Issues [ 27 ] The issues are: 1. Preliminary Issues: I. Do the doctrines of res judicata and issue estoppel apply? ii.

Did the 2010 Panel breach the rules of natural justice and duty of fairness by failing to give Mr. St. Cyr adequate notice of the case to be met? 2. Standard of Review 3. Is the Decision reasonable? I. Is Mr. St. Cyr entitled to full wage replacement benefits from March 22, 2002 to April 2006? ii. Did the Appeals Commission unreasonably interpret the Act given the four-year delay between the accident and the payment of benefits? iii. Did the Appeals Commission err in concluding that Ft. McMurray is an appropriate location to determine suitable employment? iv. Is Mr. St.

Cyr entitled to TTD benefits after March 18, 2007? IV Analysis A. Do the doctrines of res judicata and issue estoppel apply? [ 28 ] Mr. St. Cyr argues that the 2010 Panel was bound by the finding made in the Causation Decision that he was unable to continue to work at all. [ 29 ] Estoppel by res judicata is a rule of evidence aimed at ensuring finality in litigation ( 420093 B.C. Ltd. v. Bank of Montreal ,

(AB CA), 128 DLR (4th) 488; 174 AR 214 (CA); Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 ,[2001] 2 SCR 460. The preconditions for issue estoppel are set out in Ainsworth (citing Angle v.

Minister of National Revenue, (SCC), [1975] 2 SCR 248) at para. 25: The preconditions to the operation of issue estoppel were set out by Dickson J. in Angle, supra, at p. 254: 1. that the same question has been decided; 2. that the judicial decision which is said to create the estoppel was final; and, 3. that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which theestoppel is raised or their privies. [30] In 420093 B.C. Ltd. v.

Bank of Montreal, the Alberta Court of Appeal defined issue estoppel as this (at para. 18): A prior judicial decision will not raise an estoppel by res judicata, either issue estoppel or cause of action estoppel, unless (

i) it was afinal decision pronounced by a court of competent jurisdiction over the parties and the subject matter, (ii) the decision was, or involved,a determination of the same issue or cause of action as that sought to be controverted or advanced in the present litigation; and (iii) theparties to the prior judicial proceeding or their privies are the same persons as the parties to the present action or their privies. [31] The WCB asserts that the questions before the 2006 Panel and the 2010 Panel were different. The 2006 Panel determinedcausation – whether Mr. St.

Cyr’s accident caused his pre-existing condition to deteriorate or become symptomatic. It concluded that theaccident aggravated his condition and led to a loss of earning capacity, the extent of which was to be determined by the WCB. The 2010Panel dealt with the issues of entitlement – the very issues that the 2006 Panel had expressly referred to the WCB for determination. [32] Mr. St.

Cyr focuses on the 2006 Panel’s evidentiary findings found at paras. 69-72 of the Causation Decision, and inparticular, this passage (at para. 70.1), which he suggests was fundamental to the determination of causation: The evidence indicates that the worker’s neck problems became worse after the March 2, 2002 accident and progressed to the pointwhere he was unable to work at all, even though he did attempt to return to work in August 2002. [33] He urges that it was not open to the 2010 Panel to determine that he was not totally disabled. [34] The 2006 Panel determined (at para. 72) that Mr. St.

Cyr’s accident aggravated his pre-existing condition to the point “that hewas unable to return to his date-of-accident employment”. While there was some discussion of the evidence about his inability to returnto work at all, that was not the finding; the finding was that he was unable to return the employment he was engaged in at the time of theaccident. Moreover, there would have been no reason to return the matter to the WCB to determine if Mr. St.

Cyr was entitled toreinstatement of disability benefits or economic loss payments (paras. 75-76 and 79-80) if the 2006 Panel had, in fact, determined that hewas totally disabled. [35] The 2010 Panel determined whether Mr. St. Cyr was entitled to full wage replacement benefits for TTD and if the position offront desk clerk was suitable employment for the estimating his post-accident earning capacity and calculating his wage loss benefit. Itdid not determine causation. The issues were different. Accordingly neither res judicata nor issue estoppel applies. B.

Was there a Breach of the Duty of Fairness and Rules of Natural Justice?

[36] Mr. St. Cyr contends that the 2010 Panel was effectively reconsidering the Causation Decision when it ruled that he was fitfor some kind of work, and that he was entitled to notice that it was reconsidering the 2006 Panel’s finding that he was unable to work atall. [37] A fundamental legal rule is that a statutory tribunal must follow fair procedures. The requirement of adequate notice isdesigned to ensure basic natural justice guarantees – knowledge that a hearing will be held ensures an opportunity to attend the hearingand make submissions.

It is a general concept guaranteeing minimum fairness in the process. This entails an assessment of whatprocedure is warranted in the circumstances. A procedural fairness assessment consists of the setting of a fair procedure; natural justiceis the overall barometer reading to determine whether the person was afforded minimum fairness requirements. (Canada (Citizenshipand Immigration) v. Ishmael, 2007 FC 212, 63 Admin LR (4th) 184 (FCTD) at paras.18 and 27). [38] Beals v. Saldanha, 2003 SCC 72, involved an allegation of breach of natural justice in the context of the enforcement of aforeign judgment.

The appellants, Ontario residents sued in Florida on a failed land transaction, had notice of the action but claimeddenial of their opportunity to assess the extent of their financial jeopardy as the claim failed to specify the exact dollar amount ofdamages and types of damages.

Speaking for the majority, Major J. explained the (minimal) scope of the rule of natural justice as this (atpara. 65 ): …In Canada, natural justice has frequently been viewed to include, but is not limited to, the necessity that a defendant be given adequatenotice of the claim made against him and that he be granted an opportunity to defend.” [39] In refusing the appellants’ plea, Mr. Justice Major said that the appellants were fully informed about the action, knew the caseto be met, and were granted a fair opportunity to do so.

They did not defend the action, but once they received notice of the amount ofthe judgment, they had precise notice of the extent of their financial exposure (at para.69). [40] Natural justice is described as “fair play in action” (Kane v. Board of Governors of University of British Columbia, (SCC), [1980] 1 SCR 1105), The requirements of natural justice depend on “the circumstances of the case, the nature of the inquiry, the rules under which thetribunal is acting, the subject-matter which is being dealt with, and so forth”: (Russell v.

Duke of Norfolk et al., [1949] 1 All E.R. 109 atp. 118) cited in Kane). [41] Section 13(7) of the Act reads:

(7) The Appeals Commission, at its discretion on the application of a person with a direct interest in the matter, or on its own motion,may reconsider any matter that it has dealt with and may confirm, rescind or amend any decision or order previously made by it. [42]

Section 13.4 (12), concerning appeals to this court on questions of law, also considers the nature of a breach by the AppealsCommission and its effect. It reads:

(12) If the Court finds that the only ground for appeal that is proven is a defect in form or a technical irregularity, and that nosubstantial wrong or miscarriage of justice has occurred, it may deny the appeal and confirm the decision of the Appeals Commissionnotwithstanding the defect or irregularity, and may order that the decision takes effect from the time and on the terms that the Courtconsiders proper. [43] The 2006 Panel did not determine entitlement to TTD. It only determined the cause of the disability.

However, even if theCausation Decision contained some binding findings of fact, there is no evidence to suggest that the 2010 Panel was reconsidering theCausation Decision. Indeed, it was suggested in argument that the 2010 Panel may have been unaware of that finding. [44] Mr. St. Cyr knew of the appeal to the 2010 Appeals Commission. He had actual notice of what the issues were.

[45] His notice of appeal describes the issues as: “Deeming as a desk clerk in Fort McMurray at $14.50/hour”, “Retroactivedeeming as a front desk clerk for period March 22/02-April 2/06”, and “Termination of total disability benefits March 18/07”. Theseissues necessarily involved a determination that he was not totally disabled, but only partially disabled. Moreover, at the hearing, hiscounsel urged that “... the real issue is whether or not Mr. St. Cyr is fit to work at all and it doesn’t really matter whether it’s temporaryor permanent”(Transcript, p. 6, ll.5-16). Finally, the Decision reflects Mr. St.

Cyr’s arguments addressing whether he was able to workat all, including: a. The evidence from the worker’s treating physicians and examining specialists which showed that he was not capable of any workor of being competitively employed. b. That the WCB erred in not accepting that the worker’s cervical disc problems do not relieve it of its obligation to providevocational services and identify suitable modified work before considering him to be employable. By allowing the WCB to identifysuitable employment retroactively, it is effectively relieved of its obligation. Today, Mr. St. Cyr urges the same points. c.

That the WCB was incorrect in stating that pain should not be considered in decisions regarding work capability as pain affectsthe ability to work. Today, Mr. St. Cyr’s again argues that the 2010 Panel did not consider non-compensable claims. [46] I need not determine whether Mr. St. Cyr was entitled to the notice he asserts for the purpose of this enquiry. Irrespective ofthe notice concern, when viewed in the context of the nature of the inquiry and the Record, Mr. St. Cyr enjoyed a fair process. His pleathat the rules of natural justice were breached fails. C. Standard of review i.

What is the appropriate standard of review? [47] Mr. St. Cyr proposes a unique analysis of the standard of review of Appeals Commission decisions. Citing Dunsmuir v. NewBrunswick, 2008 SCC 9, at paras. 29-30, he notes that judicial review is an exercise in determining legislative intention. He urges areview of the legislative history of the Act and of the Appeals Commission to give context to his position. [48] He distinguishes the Supreme Court of Canada’s decision in Pasiechnyk v.

Saskatchewan (Workers' Compensation Board), (SCC), [1997] 2 S.C.R. 890 on the basis that the standard of review at issue concerned the Saskatchewan workers’ compensation regime, which does not involve a separate entity like the Appeals Commission under the Alberta scheme[1] noting thatunder earlier legislation. the Board of Directors (“Board”) was the final level of appeal. [49] Mr. St.

Cyr points to these distinguishing features between the Board and the Appeals Commission to support his propositionsthat the legislature’s intent is that the Board does not give deference to the Appeals Commission and that it makes final determinationsregarding legislation, policy, and regulations: a. The Board and the Appeals Commission have different roles.

b. The Appeals Commission deals with less than 0.5% of the claims administered by the Board. c. The Appeals Commission’s jurisdiction is limited to the issue under appeal. It cannot review the entire claim (Lee v. Alberta(Workers' Compensation Board, Appeals Commission, 2007 ABCA 225). d. From the time the Appeals Commission was created in 1988 until 2002, the Board retained its policy-making powers.

TheAppeals Commission was bound by those policies, and the privative clause protecting decisions of the Appeals Commission was subjectto that provision (Workers Compensation Act, S.A. 1988, s. 7(1) s.8(7)). e, Pursuant to s.8(7) of the previous version of the Act, the Board could require the Appeals Commission to rehear the matter if itconsidered that the Appeals Commission had not properly applied Board policy, the Act, or the regulations. [50] The 2002 amendments provided that the Board could no longer direct a rehearing, and created a statutory right of appeal tothe Court of Queen’s Bench on questions of law and jurisdiction.

Mr. St. Cyr argues that the intent of these amendments is to substitutethe appeal to the Court of Queen’s Bench for the Board’s power to review the Appeals Commission’s

interpretation of policy,legislation, and regulation, noting that the privative clause in the Act has never been absolute. He interprets this to mean that if the Boardowed no deference to the Appeals Commission, then neither does this Court. [51] Finally, Mr. St. Cyr argues that Pushpanathan v. Canada (Minister of Citizenship and Immigration), (SCC), [1998] 1 S.C.R. 982 (at para. 30) and Dr. Q v.

College of Physicians and Surgeons of British Columbia, 2003 SCC 19 ,[2003] 1 S.C.R. 226 (at para. 27) requires a “more searching standard of review” for statutory appeals. [52] This argument fails on a number of grounds: 1. A direction to rehear is not analogous to an appeal, nor is it the same thing as having a final say. The Board had no power toreverse a decision. Moreover, its decision to direct a rehearing is discretionary; that is entirely unlike a Court’s role on appeal (or for thatmatter on judicial review) which is based on enforcing the rule of law.

It is unreasonable to suggest that between 1988 and 2002 theBoard had an appellate or review role that was subject to a consideration of deference. 2. During the period, while this particular legislative regime was in place[2], decisions of the Appeals Commission continued to besubject to judicial review. This court consistently held that the Appeals Commission was entitled to considerable deference even whenconsidering questions of law within its expertise - the

interpretation of the Act, the regulations and the Board policies. A few examplesinclude: i. Skyline Roofing, where Slatter J, as he then, applied the standard of patently unreasonable to the Appeals Commission’sinterpretation of the Act and relevant policy (para. 52). ii. Molineaux v. Alberta (Workers' Compensation Board, Appeals Commission), 2001 ABQB 932 where Watson J, as he thenwas, held that the Appeals Commission was entitled to deference (para. 92), and noted in obiter that deference would likely apply toquestions of law and policy (para. 89). iii. Perma Clad Exteriors (EDM) Ltd. v.

Alberta (Workers' Compensation Board) (1995), (AB KB), 173 AR 29(QB) where Costigan J, as he then was, applied the patently unreasonable standard to the Appeals Commission’s

interpretation of termsin the Act. iv. Lawrence v. Alberta (Workers' Compensation Appeals Commission), 2002 ABQB 834 which ruled that

interpretation of theAct by the Appeals Commission was subject to the patently unreasonable standard. 3. This Court and the Court of Appeal have considered the role of the Board of Directors in directing a new hearing under s. 8(7) on

a number of occasions. As examples: i. Dot Motor Inns Ltd. v. Alberta (Workers' Compensation Board, Appeals Commission), 2002 ABQB 431, (aff’d 2003 ABCA139; 330 A.R. 194) where the Board had concluded (based upon a legal opinion by its lawyer) that an Appeals Commission decisionerred in its

interpretation of the Act. The Board required a rehearing under s. 13(7) (the same as s.8(7) in earlier amendments) andprovided its legal opinion to the second Appeals Commission panel. The Court concluded that this did not constitute bias and that the legal opinion was only opinion evidence, not binding on the AppealsCommission. This demonstrates that the Board’s role was distinctly different from the Court’s role in a statutory appeal. ii. Bennett v.

Alberta (Workers' Compensation Board), 2002 ABQB 96 where Bensler J concluded that the Board’s decision torequire the Appeals Commission to rehear a matter was an exercise of discretion subject to judicial review, and that the standard ofreview to be applied to that decision was patently unreasonable. Again, this demonstrates that the Board and the Court in a statutoryappeal stand in very different roles. iii. McTavish v. Alberta (Workers' Compensation Board), [1995] A.J.

No. 885 where the Court of Appeal refused to quash adirection made by the Workers' Compensation Board under s. 8(7) of the Act directing the Appeals Commission to rehear the appellant’sclaim for compensation where the Commission had earlier determined that the appellant was entitled to compensation. 4. Finally, and what is most important, this Court is bound by the decisions of the Supreme Court of Canada and the Alberta Courtof Appeal. In Dunsmuir, the Supreme Court set out a two-part test for determining the applicable standard of review.

The first part requiresconsideration of whether the existing jurisprudence has determined the appropriate standard of review for a particular category ofquestion (at para. 62). In Gahir v. Alberta (Workers' Compensation Appeals Commission), 2009 ABCA 59, the Court of Appeal saidthis (at para. 13 ): Assuming that the standard of patent unreasonableness has now been collapsed into reasonableness, the case law discloses that thefollowing 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.

[ 53 ] Questions of law where a tribunal is interpreting its own statute or statutes closely connected to its function are subject to the reasonableness standard ( Dunsmuir at para. 54 ), while a question of general law “that is both of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise” must be correct ( Dunsmuir at para. 60 ). [ 54 ] Mr. St. Cyr’s arguments focus on

interpretation of the Act and the WCB’s policies. The settled standard of review for such questions is reasonableness. Even if the second stage of the Dunsmuir analysis was required, the result would be the same since: i. The questions before the Appeals Commission were fact intensive and concerned interpreting WCB policy as it relates to the facts; in other words, they were questions of mixed fact and law. There were no extricable questions of law. ii. There is a full privative clause, which because there was no question of law or jurisdiction is unaffected ( Elgie v.

Alberta (Workers’ Compensation, Appeals Commission) , 2009 ABCA 277 at para.25). iii. The Appeals Commission has particular expertise in making findings of fact and weighing expert medical evidence ( Buckley v. Entz Estate , 2007 ABCA 7 , 71 Alta. L.R. (4th) 25, 401 A.R. 231 at paras. 24 , 26-27, Alberta (Workers' Compensation Board) v. Appeals Commission , 2005 ABCA 276 , 51 Alta. L.R. (4th) 237, 371 A.R. 318, ( Davick ) at paras. 36 , 72-73; Chauvet v. Alberta (Workers' Compensation Board Appeals Commission) , 2007 ABCA 155 , 76 Alta. L.R. (4th) 242, 409 A.R. 17.

I reject the notion that Elgie , mandates an alternate view. In Elgie , the question before the Appeals Commission concerned the

interpretation of family law terms and legal concepts outside of the Act and the Appeals Commission’s expertise. iv. The Appeals Commission’s purpose is to facilitate the workers' compensation system utilizing its expertise. As its role is central to implementation of this system, its decisions are subject to deference. Even though the Appeals Commission performs more of an adjudicative function, as opposed to a polycentric function, the purpose of the statute may also indicate deference be afforded.

Finally, since the Act is a “policy-laden statute”, and the Appeals Commission plays a central role in its purpose by determining entitlement to compensation, a more deferential standard is called for ( Shuchuk at para.31). ii. What is “reasonableness”? [ 55 ] Reasonableness is defined in Dunsmuir (at para. 47 ): Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.

Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. 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. [ 56 ] Clackson J. offered this view of the reasonableness standard in Allsop v.

Alberta (Appeals Commission for the Alberta Workers’ Compensation Board) , 2010 ABQB 472 (at para. 10 ): 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. [ 57 ] Assessing the sufficiency of reasons entails regard for the three purposes that reasons serves: (1) to tell the parties why a decision was made; (2) to provide public accountability for that decision; and (3) to permit effective appellate review.

However, reasons are not to be read in a vacuum but rather in context, which necessarily includes the totality of the evidence led during the proceedings, the issues raised and the arguments advanced in counsels’ submissions ( Moll v. College of Alberta Psychologists , 2011 ABCA 110 at para.33).

[ 58 ] In Leon’s Furniture Limited v. Alberta (Information and Privacy Commissioner) , 2011 ABCA 94 , the Alberta Court of Appeal reiterated that a statutory tribunal cannot adopt

interpretations of its constanting statute that it cannot reasonably bear. Accordingly, an

interpretation that is not harmonious with the context and the overall scheme of the statute is unlikely to be one reasonably available on the facts and the law (para.39). D. Was the Appeals Commission’s decision reasonable? i. The Legislation, the WCB Policies, and the Statutory Bodies [ 59 ] The Act is a scheme to provide a compulsory, no-fault system of compensation for workers.

It is intended to remedy the perceived inefficiencies and inadequacies of the tort system that it replaced by providing an expeditious process at minimal expense, so that compensation may be provided to injured workers without the need for court proceedings ( Pasiechnyk ). [ 60 ] Workers’ claims are scrutinized claims for two fundamental purposes: to determine responsibility and to determine entitlement. The first purpose requires evidence of a link between a workplace incident and any injury or other consequence alleged.

The second purpose requires an assessment of the extent of the injury or consequence for which compensation is payable. ( Lee v. Alberta (Workers’ Compensation Board, Appeals Commission ), 2005 ABQB 691 at para.7; rev’d on other grounds, 2007 ABCA 225 ; cited with approval in Nabors Canada Ltd. v. Alberta (Appeals Commission for Alberta Workers’ Compensation) , 2010 ABCA 243 at para.16). [ 61 ] Relevant portions of the legislation are attached as an Appendix to this decision. Briefly stated, the relevant provisions of the Act and the policies say that: a.

The Board is authorized to determine the WCB’s compensation policy, and to review and approve its programs and operating policies (s. 6(a) (1) and (2)). b. The WCB can deem suitable income by estimating potential employment earnings in an occupation the worker is capable of performing (WCB Policy 04-02; 04-05). c. The WCB can also suspend or terminate services if the worker does not cooperate with return-to-work services (WCB Policy 04-05,

Part I). d. The Appeals Commission has exclusive jurisdiction to inquire into and examine all matters and questions arising under the Act concerning appeals from the review body, presently called the DRDRB (s. 13.1). e. Appeals to the Appeals Commission are de novo hearings. The Appeals Commission may reconsider any matter that it has dealt with and may confirm, rescind or amend any decision or order previously made by it either on the application of a person with a direct interest in the matter or on its own motion (ss. 13.(7)). (

f) The Appeals Commission is required to apply the WCB’s policies (s. 13.2(6) (b)); Michailides v. Alberta (Workers’ Compensation Board) , 1999 ABQB 941 at para. 17 (dealing with the similar section, s.8(7); aff’d 2003 ABCA 49 ). ii. Mr. St. Cyr’s submissions [ 62 ] It is undisputed that Mr. St. Cyr cannot perform his pre-accident employment and that he was not paid benefits for the period March 22, 2002 to April 2, 2006 until September 2007.

[ 63 ] In essence, Mr. St. Cyr argues that he should be paid TTD immediately from the date he was laid off from work until suitable employment is identified, and suitable employment must be in the location where the worker is living, not where he was working at the time of the injury. [ 64 ] Mr. St. Cyr contends that the Appeals Commission’s

interpretation of the Act and policies is incorrect and unreasonable because it failed to consider the words of the legislation and policy in their entire context and in their grammatical and ordinary sense. [ 65 ] Mr. St. Cyr sets the stage for his position by observing that the Appeals Commission is bound by the Act and the Board policies, that the Board is required to implement Appeals Commission decisions within 30 days, and that the Act requires the Board to make monthly or bimonthly periodic payments. His arguments entail cross-referencing various policies and provisions of the Act. [ 66 ] Mr. St.

Cyr’s argues that: i. The Appeals Commission failed to reconcile inconsistencies in Policy 04-04 and 04-05. Policy 04-04,

Part II, Application 3, #8 should be interpreted as only applying if a worker is already receiving an ELP, and chooses to leave Alberta. - The Appeals Commission relied on Policy 04-04,

Part II, Application 3, #8 which provides that the WCB will continue to estimate earning capacity “as though the worker had continued to work in suitable employment in Alberta” even if the economic conditions in a new place of residence results in reduced earnings. - Section 56(9) (which allows the Board to consider earnings from work made available to a worker even if the worker refuses the work) requires that the work is offered to the worker before any notional or actual earnings can be deducted. Policy 04-05,

Part 1, (Return to Work Services) at #2 supports this proposition. It states: 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: 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; c. The work is reasonably available in a location to which the worker may reasonably commute or re-locate. - Policy 04-04,

Part II, Application 1 (Permanent Disability- Determining Permanent Impairment of Earning Capacity), and its definition of “suitable employment” at #5 must also be reconciled. It reads: For the purposes of estimating earning capacity, suitable means employment which is consistent with the worker’s ability and is within the worker’s locale or may be obtainable where relocation is reasonable. 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. [3]

ii. The Appeals Commission erred in interpreting Policy 04-02,

Part 1, #1 which defines temporary total disability as this: Temporary total disability occurs when a compensable injury or occupational disease results in temporary work restrictions which prevent a worker from performing the accident job and/or any concurrent employment. - This policy does not require that the worker be disabled from all forms of employment for TTD to occur; it only requires that the worker be disabled from his or her pre-accident and/or concurrent employment. iii. Reading the Act and policies as a whole leads to the following

interpretation: The worker is injured and cannot perform his date of accident job and/or any concurrent employment and is therefore eligible for TTD benefits (Policy 04- 02,

part I, #1); The worker continues to be eligible for TTD until considered fit to return to suitable employment. Suitable employment/work is determined by reference to policy 04-05,

part I, #2. First, suitable work must be identified. If a worker can be considered employable when suitable work has not been identified then that portion of policy 04-05,

part I, #2, which reads “The WCB considers a worker employable when suitable work has been identified” is rendered meaningless. The suitability of the proposed employment must be judged against the requirements of policy, including whether “the work is reasonably available in a location to which the worker may reasonably commute or re-locate “. Clearly this portion of the policy requires the Appeals Commission to have regard to both the worker’s location and the location of the proposed employment. As well, the work must be reasonably available to the worker. This is also a requirement in s. 56(9). iv. Watson v.

Alberta (Workers Compensation Board ), 2010 ABQB 280 stands for the proposition that if the WCB cannot identify suitable employment, it is unreasonable to assume that such employment exists or is available. There, Lee J held that if suitable employment cannot be identified, the only reasonable conclusion is that the worker is totally disabled. I note that the chambers decision was reversed on appeal where it was held that it was reasonable for the Appeals Commission to direct that Ms.

Watson’s entitlement to benefits be based on an estimated employment of 20 hours per week at minimum wage until such time as suitable employment was identified (Watson v. Alberta (Workers' Compensation Board), 2011 ABCA 127 ). v. The Appeals Commission misunderstood the Court of Appeal’s observations in Gahir distinguishing between employment and functional capacity. The Court of Appeal had limited authority, but would otherwise have directed that Mr. Gahir was entitled to full wage replacement. vi. Even if there are other reasonable

interpretations of WCB policy, the Appeals Commission’s reasons do not meet the standard of intelligible justification and transparency, in that they do not explain why the Appeals Commission preferred one

interpretation over another. In particular, the Appeals Commission does not explain how it concludes it can estimate a worker’s earning capacity retroactively. vii. The Appeals Commission erred in its understanding of the evidence of Dr. Roberts, who clearly stated that Mr. St. Cyr would not be competitive in the workplace and that there was an organic or physiological cause for Mr. St. Cyr’s neck complaints. iii. Is Mr. St. Cyr entitled to full wage replacement benefits from March 22, 2002 to April 2006? [ 67 ] In Holmberg v. Alberta (Workers' Compensation, Appeals Commission), 2011 ABCA 173 , the Alberta Court of Appeal

noted that s.56(3) of the Act provides that a worker’s entitlement to compensation is based “on the difference between pre-accident and post-accident ability to earn wages.”(at para. 1). [ 68 ] In Watson, the Court of Appeal discussed the definition of “suitable employment in the WCB policies and noted (at paras. 50- 51): The definition recognizes the social and economic aspects of employability. The “capacity” of the worker must be matched to “suitable work” to create “employability”. That said, the workers' compensation system is not 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. [ 69 ] The WCB correctly emphasizes that the workers compensation system is based on the idea that the injured worker will be returned to a condition where he or she is employable. If the worker does not reach equivalent work capacity or earnings to the pre- accident job, the worker is entitled to benefits based on the difference.

In the case of a temporary disability, it will be paid as TPD or TTD; if the disability is determined to be permanent, it will be an ELP. If the worker chooses not to work, the WCB may estimate potential earnings in an occupation that the worker is capable of performing. [ 70 ] Section 56(8) of the Act and Policy 04-02

Part II Application 1 provide that TTD benefits are payable as long as the temporary disability lasts; that is until the weight of the medical evidence establishes that the worker is fit for suitable employment, the remaining disability is considered permanent, or the worker dies. Thus a worker is not eligible for TTD once he or she is fit for suitable employment or the remaining disability is permanent. [ 71 ] Mr. St. Cyr’s assertion that he is entitled to TTD until suitable employment is identified is not supported by the policies that he relies upon nor is it supported by the Act.

Moreover, the Court of Appeal in Watson expressly rejected that position, finding instead that it is reasonable to pay benefits equivalent to part-time employment at minimum wage until suitable employment is identified, and that the Appeals Commission decision to not award TTD was reasonable. [ 72 ] Mr. St. Cyr’s capacity to work has been determined - he was found fit to return to light work for the period March 22, 2002 to April 2, 2006. That determination disentitles him from receiving TTD. In finding that Mr. St.

Cyr was capable of suitable employment, the Appeals Commission carefully analysed the evidence that supported their conclusion. It conceded that he was unable to return to his pre-accident employment, but found that the weight of the evidence supported the conclusion that he was able to return to some form of employment. [ 73 ] The Appeals Commission also undertook a detailed analysis of the medical evidence for the period March 2002 to April 2006, discussing in detail the medical and other specialist reports from 2002, 2003, and 2006. In particular, the Appeals Commission considered Dr.

Roberts’ evidence that Mr. St.

Cyr would not be “competitive in the workplace” because of his level of pain and exercise intolerance, and concluded (at para. 19.3): Given the neurologist’s subsequent descriptions of the worker’s pain as unusual, bizarre and unlikely to have a physical basis, the panel interprets the neurologist’s opinion to mean that he could not identify employment the worker could perform in light of his complaints rather than an opinion that the worker was functionally unable to perform suitable work. [ 74 ] This was a reasonable conclusion to draw from the evidence. [ 75 ] The suggestion that Dr.

Roberts concluded that there was an organic or physical cause for his pain also fails. Dr. Roberts’ evidence is far from clear on this point. He says this:

There is a bizarre element to the description of his pain. He describes pain for example when he came here on the flight that would begin in his hands and feet and spread upward to involve his entire body. This is extremely unusual and I have no good explanation for this. One is suspicious that he has had low back pain and particularly neck pain for years from his heavy equipment operations and had various injuries that have caused exacerbations to the point where he can’t perform. It is difficult to appreciate his present level of performance, which he describes as extremely low.

He can only work 1-2 hours and then must lie down and rest. He describes much of his day to simply using his energy toward controlling his pain and as a result suffering from terrible fatigue with very low exercise tolerance... I think that his description of his neck pain is fairly reasonable. There is a description of pain syndrome which begins with his hands and goes upward, which I find bizarre and unlikely related to a functional illness ...

I believe that he has had a strain of the neck with no neurological compromise other than a minimal irritation of nerve roots and previous tingling in the arms which has not improved. Likely this is related to the multiple injuries that he has had over the years. The degenerative changes are very difficult to relate to the injuries and are likely of long standing . (Emphasis added) [ 76 ] Moreover, there was considerable evidence from other sources relied on by the Appeals Commission. The Appeals Commission preference to rely on opinions about Mr. St.

Cyr’s capacity for employment that relied on functional testing and objective findings (testing results, clinical assessments and review of the complete medical record) was a reasonable approach to assessing the evidence. It is not subject to re-evaluation by this Court. [ 77 ] Mr. St. Cyr’s argument that it was unreasonable for the Appeals Commission to interpret the Act and policies as permitting it to retroactively estimate his functional capacity is similarly flawed. He suggests that the Appeals Commission gave no reasons for this

interpretation. I find, however, that the Appeals Commission adequately explained its

interpretation. [ 78 ] The Appeals Commission concluded that Policy 04-2,

Part II, Application 1, #8 permitted it to estimate retroactively.

The Policy states: The WCB may estimate the post-accident earning capacity when: * a worker is capable but unable to obtain modified employment, or * a worker obtains employment which does not represent the worker’s earning capacity, or * the worker is capable but chooses not to obtain employment. [ 79 ] The Appeals Commission (at para. 29.11) noted that the Act provides that decisions by a claims adjudicator are subject to review and appeal, and that: ...the very existence of the appeal mechanism dictates that the WCB will be required to make decisions that have a retroactive effect.

The decision of the Appeals Commission in 2006 to accept additional injury conditions on the worker’s 2002 injury claim required the WCB to make retroactive decisions on the worker’s entitlement to benefits, including the decision to estimate the worker’s earning capacity. [ 80 ] This explanation is reasonable and provides an intelligible justification for the Appeals Commission’s decision.

[ 81 ] Mr. St. Cyr argues that until suitable employment is identified, there can be no finding of functional capacity, and therefore could be no calculation of earning capacity for the period before suitable employment was identified. This position was rejected by the Court of Appeal in Gahir , where the Court states (at paras. 25-26 and 35): The appellant argues that as a matter of law he cannot be found to be capable of working unless the Board can identify a specific job that he is capable of performing.

The appellant argues that the Board has repeatedly attempted to reduce his benefits, while consistently failing to identify any actual employment he could undertake. He argues it was not open to the Appeals Commission to find he was “fit for full time sedentary employment within his work restrictions” without identifying a specific job he can do. While there is a considerable overlap, there is also a fundamental difference between functional capacity and employability. “Fit for full time sedentary employment” is a level of functional capacity; it is not a job.

Employability undoubtedly arises on a foundation of functional capacity, but employability also incorporates social and economic considerations. Mere theoretical functional capacity that is not economically competitive does not amount to employability. It follows that the Appeals Commission can make a finding of functional capacity without identifying a specific job the worker can do, that is without making a finding of employability ...

In the circumstances the Appeals Commission should have considered whether the appellant is entitled to interim relief, (and whether it should be wholly or partly retroactive ) until such time as the Board identifies real prospects of employment for the appellant. (Emphasis added) [ 82 ] In Stewart v.

Workers’ Compensation Board (QB No 9601-17988), unreported, March 19, 1997, aff’d orally (CA Appeal No 9701-17202) May 15, 1998, McMahon J upheld the Appeals Commission’s decision that a worker who could not return to her previous position as a meat wrapper, but who was capable of some (then yet undetermined) work was entitled to compensation based on deemed earnings at a minimum wage for a 30-hour week.

McMahon, J noted that the function of the WCB scheme was not to serve as an unemployment insurance scheme, but protection against financial loss cause by work-related accidents (at p. 3-4): If the injury did not preclude re-employment in another capacity, then the Appeals Commission is within its jurisdiction in calculating the earning capacity and taking it into account in setting the earnings loss supplement. [ 83 ] Mr. St. Cyr also seems to say that he is entitled to full wage replacement benefits because his claim was not accepted until four years post-accident.

The Act and the policies say that TTD benefits are payable when injury “prevents a worker from performing the accident job and/or any concurrent employment”. If a worker is capable of some employment, then by definition he or she is not totally disabled. Mr. St. Cyr’s

interpretation of this clause ignores the words “and/or any concurrent employment”. It also ignores the definition of TPD: Temporary partial disability usually occurs during convalescence from the injury when medical evidence supports a worker returning to a modified version of the pre-accident or other suitable job , consistent with identified temporary work restrictions. (Emphasis added) [ 84 ] The medical evidence accepted by the Appeals Commission showed that Mr. St. Cyr was able to return to a suitable job with some work restrictions. This is a reasonable

interpretation of the Act and policy, reasonably applied to the facts. iv. Did the Appeals Commission unreasonably interpret the Act given the four-year delay between the accident and the payment of benefits? [ 85 ] Mr. St. Cyr’s argument on this point is not entirely clear. He notes that s.13.3 of the Act requires the WCB to implement an

Appeals Commission’s decision within 30 days; that s. 56(1) of the Act requires the WCB to pay periodic compensation; and that there is no WCB policy in place to make payments on any other basis than on either a monthly or bi-weekly basis. [ 86 ] The Causation Decision established that the accident caused the aggravation of a pre-existing condition, and then referred the matter back to the Board to determine entitlements. The WCB received the Causation Decision on April 3, 2006. Mr. St.

Cyr’s Case Manager sought tax information and arranged for an Independent Medical Examination on May 4, 2006 (within 30 days of receiving the decision). [ 87 ] The WCB implemented the Causation Decision in a timely fashion by undertaking the necessary investigations and analysis to determine Mr. St. Cyr’s entitlement to benefits, including wage loss, benefits, vocational rehabilitation services and assessment for an economic and non-economic loss payments. [ 88 ] Section 56(1)(

a) and (

b) provide that permanent disability benefits are payable monthly and temporary disability benefits are payable bi-weekly basis. Sub-section (

c) provides that benefits may be paid “on a basis other than under clause (

a) or (b), if the Board considers it appropriate to do so.” It was not unreasonable to not pay benefits on a periodic basis when no determination had yet been made as to whether the disability was temporary or permanent, or total or partial. I note that Mr. St. Cyr formulated this issue before the 2010 Panel as a reason why he should receive TTD benefits for the period between March 2002 and 2006. [ 89 ] The Decision on whether Mr. St. Cyr was entitled to TTD was reasonable. That it took four years to reach that determination does not change whether Mr. St. Cyr was totally or partially disabled.

Perhaps it was unreasonable for the WCB to not pay any benefits for four years, and perhaps the WCB should have paid Mr. St. Cyr at a minimum wage loss replacement based on an earning capacity of a minimum wage as was done in Watson. But, the WCB’s decision in this regard is not before me. v. Did the Appeals Commission err in concluding that Ft. McMurray was an appropriate location to determine suitable employment? [ 90 ] Mr. St. Cyr argues that there is a conflict between the definition of “suitable employment” in the Glossary and Policy 04-04,

Part II, Application 1, #5 and Policy 04-04,

Part II, Application 3, #8 that earning capacity is calculated as though the worker remained in Alberta. For the purposes of estimating earning capacity, suitable employment includes consideration of whether the employment is within “the worker’s locale or may be obtainable where relocation is reasonable .”(Emphasis added). However, the Appeals Commission relied on Application 3 of the same policy which provides: ELP will normally continue if the worker leaves the province or the country . . . ELP will not be increased if the economic conditions in the new place of residence result in reduced earnings.

The WCB will estimate earning capacity as though the worker had continued to work in suitable employment in Alberta. [ 91 ] The Appeals Commission directly addressed this issue, noting that the selection of suitable employment is not a direction to the worker to seek that position, but is the basis chosen for calculating the worker’s earning loss. Further, the Appeals Commission noted that while Policy 04-04,

Part II, Application 3, #8 was not directly applicable, it was instructive. At paras. 78-79, it noted: The panel interprets the policy direction to estimate earning capacity as though the worker continued to work in Alberta, although the worker moved to another province to mean that the post accident earning capacity is to be estimated on a basis that is consistent with the date-of-accident earning rate. That is, where the worker is employed in a high wage location, the date-of- accident earnings and the earnings in a suitable position would be based on comparable factors.

Likewise a worker who has been employed in a low wage area could expect that his estimated post-accident earning capacity would reflect low wage conditions in the area. On the basis of this

interpretation, the panel finds it reasonable for the WCB to estimate the worker’s earning capacity on the basis of suitable employment in the location where the worker’s injury occurred.

[ 92 ] The definition of “suitable employment” does not require that the identified employment be in the same locale as the worker. The Appeals Commission looked to a related policy that dealt with workers leaving Alberta to assess whether it was “reasonable” for the WCB to identify suitable employment requiring relocation. It based its analysis and

interpretation on the rationale that if the accident occurred in a high wage location, it would be reasonable to calculate wage loss at a high wage location and conversely, the same in regards to low wage locations. This is a reasonable and justifiable conclusion. vi. Is Mr. St. Cyr entitled to TTD benefits from March 18, 2007? [ 93 ] Mr. St. Cyr’s injuries were determined to be permanent, resulting in compensable work restrictions that caused a permanent impairment of earning capacity. The Appeals Commission set out the medical evidence that it relied on to conclude that Mr. St.

Cyr was capable of medium level employment. It further found that the position of front desk clerk came within his work restrictions and was therefore suitable employment. The Appeals Commission provided clear and intelligible reasons for reaching these conclusions. There is no basis for this Court to interfere with the decision. V. Conclusion [ 94 ] The Decision is amply supported by the evidence and reasonable

interpretation of the Act and policies. [ 95 ] The application for appeal and judicial review is dismissed. Dated at the City of Edmonton, Alberta this 7th day of July 2011. J.E. Topolniski J.C.Q.B.A. Appearances: Kenneth W. Penonzek

for the Applicant Curtis B.R. Craig for the Workers’ Compensation Board Sandra Hermiston for the Appeals Commission “APPENDIX” Duties of the Board of Directors 6 The Board of Directors (

a) shall (

I) determine the Board’s compensation policy, (ii) review and approve the programs and operating policies of the Board, and (iii) consider and approve annual operating and capital budgets of the Board, and (

b) may enact bylaws and pass resolutions for the conduct of the business and affairs of the Board.

Power of Appeals Commission 13.1(1) Subject to sections 13.2(11) and 13.4, the Appeals Commission has exclusive jurisdiction to examine, inquire into, hear and determine all matters and questions arising under this Act and the regulations in respect of (

a) appeals from decisions under

section 46 made by a review body appointed under

section 45, (

b) appeals from decisions under

section 120 made by a review body appointed under

section 119, © appeals from determinations of the Board under section 21(3), and (

d) any other matters assigned to it under this or any other Act or the regulations under this or any other Act, and the decision of the Appeals Commission on the appeal or other matter is final and conclusive and is not open to question or review in any court.

(2) The chief appeals commissioner may authorize a panel of 2 or more appeals commissioners to act on behalf of the Appeals Commission under subsection (1) and that panel may exercise the powers of the Appeals Commission for that purpose.

(3) The Appeals Commission may make rules governing the practice and procedure applicable to proceedings before it.

(4) The Regulations Act does not apply to rules made under subsection (3).

(5) The Appeals Commission has the same powers as the Court of Queen’s Bench for compelling the attendance of witnesses and examining them under oath and for compelling the production and inspection of books, papers, documents and things.

(6) The Appeals Commission may cause depositions of witnesses residing in or outside Alberta to be taken before any person appointed by the Appeals Commission in a manner similar to that prescribed by the Alberta Rules of Court .

(7) The Appeals Commission, at its discretion on the application of a person with a direct interest in the matter, or on its own motion, may reconsider any matter that it has dealt with and may confirm, rescind or amend any decision or order previously made by it.

(8) The Appeals Commission, at its discretion on the application of a person with a direct interest, may reconsider any appeal decision that was made by the members of the board prior to November 1, 1988 and may confirm, rescind or vary the decision.

(9) No proceedings by or before the Appeals Commission shall be restrained by injunction, prohibition or other process or proceedings in any court or are removable by certiorari or otherwise into any court, nor shall any action be maintained or brought against the Appeals Commission or any member of the Appeals Commission in respect of any act done or decision made in the honest belief that it was within the jurisdiction of the Appeals Commission. RSA 2000 cW-15 s12; 2002 c27 s7 Appeals 13.2(1) A person who has a direct interest in and is dissatisfied with (

a) a decision under

section 46 made by a review body appointed under

section 45, (

b) a decision under

section 120 made by a review body appointed under

section 119, or (

c) a determination of the Board under section 21(3) may, in accordance with this section, the regulations and the Appeals Commission’s rules, appeal the decision or determination to the Appeals Commission.

(2) In considering an appeal from a decision under

section 46, the Appeals Commission shall consider the records of the claims adjudicator and the review body relating to the claim.

(3) In considering an appeal from a decision under

section 120, the Appeals Commission shall consider the records and information available to the review body relating to the matter under consideration.

(4) In considering an appeal from a determination of the Board under section 21(3), the Appeals Commission shall consider the records and information available to the Board relating to the matter under consideration.

(5) Where a decision or determination is appealed, the Board shall, on request, forward to the Appeals Commission (

a) the records and information in its possession relating to the decision or determination, and (

b) the written reasons for the decision or determination.

(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 or additional evidence, (

b) is bound by the board of directors’ policy relating to the matter under appeal, (

c) shall permit the Board to make representations, in the form and manner that the Appeals Commission directs, as to the proper application of policy determined by the board of directors or of the provisions of this Act or the regulations that are applicable to the matter under appeal, (

d) may confirm, reverse or vary the decision or determination appealed, (

e) may direct that its decision be implemented within a specified time period, and (

f) may refer any matter back to the review body or the Board, as the case may be, for further action or decision, with or without directions.

(7) At the request of an affected person or the Board, the Appeals Commission may clarify any directions given in respect of a decision.

(8) The Appeals Commission shall not accept an appeal from a decision under

section 46 or 120 unless a written notice of appeal that complies with the regulations is received within one year from the date that the appropriate review body made its decision.

(9) Notwithstanding subsection (8), if the chief appeals commissioner, or the appeals commissioner to whom the chief appeals commissioner delegates the chief appeals commissioner’s duties, considers there is a justifiable reason for a delay, that commissioner may extend, with or without conditions, the deadline set out in subsection (8).

(10) There is no appeal from a decision made under subsection (9).

(11) At any stage of the proceedings before it, the Appeals Commission may by application state in the form of a special case for the opinion of the Court of Queen’s Bench any question of law or jurisdiction arising in the course of the proceedings, and may adjourn the proceedings for that purpose. RSA 2000 cW-15 s13; 2002 c27 s7 ; 2009 c53 s189 Board is bound by decision 13.3(1) The Board is bound by a decision of the Appeals Commission and by any decision rendered on an appeal or review of a decision of the Appeals Commission.

(2) The Board shall implement a decision referred to in subsection (1) (

a) within the time prescribed in the decision, or (

b) if no time is prescribed in the decision, then as soon as is practicable and, in any event, not later than 30 days after being notified of the decision.

2002 c27 s7 Appeal 13.4(1) The Board and any person who has a direct interest in a decision of the Appeals Commission made pursuant to

section 13.2 may appeal the decision to the Court of Queen’s Bench on a question of law or jurisdiction.

(2) An appeal must be commenced by application.

(3) An application must include a concise statement of (

a) the grounds on which the decision is being appealed, and (

b) the nature of the relief claimed.

(4) An application must be filed with the Court and served on the Appeals Commission and the other parties to the appeal, all within 6 months after the date of the decision that is being appealed.

(5) The Court may not enlarge the time period referred to in subsection (4).

(6) Where the appellant is a person other than the Board, the appellant must also serve a copy of the application on the Board.

(7) On being served with an application the Appeals Commission shall forthwith forward to the clerk of the Court (

a) the record of the proceedings before the Appeals Commission, which consists of (

I) the notice of appeal or other document that initiated the appeal before the Appeals Commission, (ii) all documents forwarded to the Appeals Commission under

section 13.2(5) that were considered by the Appeals Commission in reaching its decision, (iii) the evidence and all exhibits and other documents received by the Appeals Commission, and (iv) the decision of the Appeals Commission, with reason, and (

b) a certificate stating that the record is true and complete.

(8) The Court may receive any further evidence that the Court considers is necessary in order to determine a question of law or jurisdiction.

(9) The Court may stay the operation of the decision being appealed until final disposition of the appeal.

(10) The Court may direct that any person be added or struck as a party and that the application be served on any other person that the Court considers appropriate.

(11) On the hearing of the appeal the Court may (

a) confirm or set aside the decision of the Appeals Commission or any part of it, and (

b) where it sets aside the decision, refer the matter back to the Appeals Commission for reconsideration in accordance with any directions the Court considers appropriate.

(12) If the Court finds that the only ground for appeal that is proven is a defect in form or a technical irregularity, and that no substantial wrong or miscarriage of justice has occurred, it may deny the appeal and confirm the decision of the Appeals Commission notwithstanding the defect or irregularity, and may order that the decision takes effect from the time and on the terms that the Court considers proper.

(13) The Court may make any award as to the costs of the appeal that it considers appropriate.

(14) An appeal from a decision of the Court under this

section lies to the Court of Appeal.

Worker leaving Alberta 52 If a worker who is entitled to compensation under this Act leaves Alberta and takes up residence in another jurisdiction, the Board may cease paying compensation under this Act to that worker unless (

a) the worker provides medical evidence in a manner satisfactory to the Board confirming the continuation of the disablement and the Board is satisfied that the period of disablement is not prolonged by the worker leaving Alberta, or (

b) the worker has been granted an award for permanent disability arising out of the accident. Reduction or suspension of compensation 54 If a worker behaves in a manner that tends to imperil or retard the worker’s recovery or refuses to undergo any medical aid that the Board, based on independent medical advice, considers reasonably essential to promote the worker’s recovery, the Board may reduce or suspend the compensation payable to that worker. Disability Compensation for disability 56(1) The Board shall pay periodic compensation (

a) on a monthly basis in the case of permanent disability, (

b) on a bi-weekly basis in the case of temporary disability, or (c)on a basis other than under clause (

a) or (b), if the Board considers it appropriate to do so.

(2) If an accident causes injury to a worker and results in disablement, the Board shall pay periodic compensation to the worker based on the worker’s net earnings, and for that purpose the Board shall calculate the worker’s net earnings in accordance with the regulations and based on a period or periods of time prior to the accident that, in the Board’s opinion, fairly and justly represent the worker’s net earnings at the time of the accident.

(2.1) If the period or periods of time prior to the accident referred to in subsection (2) are, in the Board’s opinion, insufficient to allow the Board to calculate the worker’s net earnings, the Board may pay periodic compensation based on another amount as determined by the Board, subject to the maximum payable under subsection (4).

(3) In making a calculation under subsection (2), the Board shall consider separately each source of employment the worker had at the time of the accident from which the worker no longer has the ability to earn wages or in which the worker’s ability to earn wages is impaired, due to the accident, regardless of whether the source of employment is in an industry to which this Act applies.

(4) In computing net earnings for the purposes of this Act, no regard may be taken of the aggregate gross annual earnings of the worker in excess of an amount prescribed by order of the Board.

(5) An order referred to in subsection (4) applies only in respect of an accident that occurs on or after the day specified in the order.

(6) The amount of the periodic payment of compensation is (a)in the case of permanent total disability and temporary total disability, 90% of the worker’s net earnings, and (b)in the case of permanent partial disability and temporary partial disability, a proportionate part of 90% of the worker’s net earnings based on the Board’s estimate of the impairment of earning capacity from the nature and degree of disability.

(7) Compensation for permanent total disability and permanent partial disability is payable to the worker during the worker’s lifetime and shall not be less than (

a) in the case of permanent total disability, $900 per month, and (

b) in the case of permanent partial disability, a proportionate part of $900 per month based on the Board’s estimate of the impairment of earning capacity from the nature and degree of disability.

(8) Compensation for temporary total disability and temporary partial disability is payable to the worker only as long as the disability lasts, and compensation for temporary total disability shall be (a)where the worker’s bi-weekly net earnings are greater than the sum referred to in subsection (7)(a), the greater of (i)the sum referred to in subsection (7)(a), and (ii)the bi-weekly equivalent of the amount that the worker would have received under subsection (6) had the worker been permanently totally disabled, and (b)where the worker’s bi-weekly net earnings are equal to or less than the sum referred to in subsection (7)(a), 100% of those bi-weekly net earnings.

(9) Where work is made available to a worker who is temporarily partially disabled and the Board is satisfied that the worker is medically and physically capable of doing the work and that, considering all the circumstances, it is fair and just to expect the worker to accept the work, the following applies, notwithstanding subsection (8): (a)if the worker accepts the work, the Board shall pay periodic compensation to the worker if, in doing the work, the worker suffers an earnings loss that is caused by the residual disability, and in that case the compensation shall be in an amount that is a proportionate part of 90% of the worker’s earnings loss, based on the Board’s estimate of the degree to which the earnings loss is caused by the residual disability; (b)if the worker refuses the work, the Board shall continue to pay periodic compensation to the worker in accordance with clause (

a) as if the worker had accepted the work. (10) Subsection (9) applies regardless of whether the work is in an industry to which this Act applies.

RSA 2000 cW-15 s56; 2002 c27 s20 Additional compensation payment 57(1) A worker receiving compensation for permanent total disability or permanent partial disability under any predecessor of this Act shall be granted an additional payment of compensation sufficient to increase the monthly payment to that worker to, on and after January 1, 1982, the greater of (a)$675 per month in the case of permanent total disability, or, in the case of permanent partial disability, a proportionate part of $675 per month based on the Board’s estimate of the impairment of earning capacity from the nature and degree of disability, and (b)the amount of the worker’s pension on December 31, 1981 under

section 53 of the former Workers ’ Compensation Act , RSA 1980 cW-15, plus 10% of that amount.

(2) A worker receiving compensation for permanent total disability or permanent partial disability under this Act or any predecessor of this Act shall be granted an additional payment of compensation sufficient to increase the monthly payment to that worker to, (

a) on and after July 1, 1986, the greater of (i)$730 per month in the case of permanent total disab

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