Grande Cache Coal Corporation Applicant - v. -, 2011 ABQB 483

Court of Queen’s Bench of Alberta Citation: Grande Cache Coal Corporation v Alberta (Appeals Commission for Alberta Workers’ Compensation), 2011 ABQB483 Date: 20110726 Docket: 1003 21470 Registry: Edmonton Between: Grande Cache Coal Corporation Applicant - and - The Appeals Commission for Alberta Workers’ Compensation and the Workers’ Compensation Board of Alberta Respondents _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.L. Shelley _______________________________________________________ I.

Introduction [1] Grande Cache Coal Corporation (the Employer) appeals and applies for judicial review of the July 6, 2010 decision of theAppeals Commission for Alberta Workers Compensation (the AC) – Decision No.: 2010-538, (the Decision). TheDecision upheld the Worker’s Compensation Board’s (WCB) decision to deny the Employer’s application for cost relief following anaccident suffered by its employee, Mr. Snider, in the course of his employment. [2] This is not a case where the Employer argues the Decision is inherently unreasonable.

Rather, the Employer argues thatseveral individual elements of the Decision, specifically the AC’s assessment of medical evidence and the lack of transparency in itswritten reasons, render it unreasonable. [3] Although each issue the Employer raises requires some discussion, a somewhat probing examination reveals that the

[ 3 ] Although each issue the Employer raises requires some discussion, a somewhat probing examination reveals that the decision, as a whole, is justified, transparent and intelligible. The decision meets the standard of reasonableness. II. Background A. Employee ’s Medical Background [ 4 ] On April 11, 2005, Mr. Snider struck his right elbow on a steel platform in the course of his employment with the Employer. He continued to work and did not seek immediate medical attention. [ 5 ] On April 22, 2005, Mr. Snider sought medical attention and his family physician, Dr.

Van Dyk, diagnosed him with traumatic right lateral epicondylitis. He continued to work on modified duties. [ 6 ] On May 5, 2005, the WCB accepted Mr. Snider’s claim for compensation benefits with respect to the April 11, 2005 injury (the compensable accident). [ 7 ] On June 8, 2005, Dr. Van Dyk took Mr. Snider off work entirely. Over the course of the following weeks, he attended physiotherapy and was subsequently discharged from the return to work program, having met his pre-accident job demands. [ 8 ] On August 9, 2005, Mr. Snider returned to work.

Upon his return to work, he almost immediately reported discomfort relating to his right elbow injury. On August 10, 2005, Dr. Van Dyk recommended modified duties. The Employer was unable to accommodate modified duties and Mr. Snider did not return to work at that time. Mr. Snider completed a second gradual return to work program of physiotherapy. He was able to return to modified duties on November 14, 2005. [ 9 ] On November 28, 2005, Dr. Van Dyk again took Mr. Snider off work. He referred him to an orthopedic surgeon, Dr. Boorman, who recommended Mr. Snider for surgery.

The surgery was initially delayed due to Mr. Snider’s unrelated cardiac and liver conditions. On March 16, 2006, Dr. Boorman performed right elbow surgery on Mr. Snider. In his operative report, Dr. Boorman commented that Mr. Snider’s extensor carpi radialis brevis (“ECRB”) tendon “had a very degenerative appearance to it.” During surgery, a

section of Mr. Snider’s ECRB tendon was excised. [ 10 ] Mr. Snider completed a gradual return to work program and returned to modified duties in August 2006. In September 2006, Dr. Van Dyk confirmed that the injury was no longer preventing Mr. Snider from returning to his pre-accident level of work. B. Key Medical Reports [ 11 ] On August 23, 2005, before the right elbow surgery, the WCB referred Mr. Snider for an Independent Medical Examination (IME). On September 2, 2005, Dr. Huckell, the Independent Medical Examiner, conducted a physical examination of Mr.

Snider and diagnosed him with immediate recurrence of post traumatic lateral epicondylitis. [ 12 ] On June 26, 2006 (post-surgery), Dr. Huckell completed a second physical examination of Mr. Snider. In the second IME report, Dr. Huckell was asked to comment on whether Mr. Snider’s restrictions were considered related to the compensable injury/surgery or to other factors. In response, Dr. Huckell commented: ...His current restrictions are considered related to his injury / surgery and not other factors.

[ 13 ] On August 25, 2009, the WCB Medical Consultant, Dr. Drouin, provided her opinion based on documentary review of Mr. Snider’s claim relating to the compensable accident. When asked whether Mr. Snider’s degenerative ECRB tendon was an indication of a pre-existing condition that was aggravated by a work accident, Dr. Drouin commented: ...the ECRB tendon degeneration is not a pre-existing condition but is rather the result of chronic inflammation in the tendon as related to the diagnosis of lateral epicondylitis...there is no evidence of a pre-existing condition in the right elbow.

When asked if the degeneration would have been the result of the original (compensable) accident, Dr. Drouin concluded: ...the degenerative pathology found at surgery is directly a result of the original accident. [ 14 ] On November 9, 2009, at the Employer’s request, Dr. Hoffman, an Occupational Medicine Specialist, provided his opinion based on documentary review of Mr. Snider’s claim relating to the compensable accident. When asked to comment on Dr. Drouin’s report, Dr. Hoffman commented: ...The tendinosis (tendon degeneration) developed over years.

This problem was not caused by one bump on the lateral elbow... The degenerative pathology was caused by years of microtrauma. The April 11, 2005 [ sic ] probably contributed some damage to a long- standing tendinosis. When asked to comment on any pre-existing conditions contributing to, or prolonging, the period of disability, Dr. Hoffman commented: ...Recovery from lateral epicondylitis was prolonged by the underlying (pre-existing) tendinosis and the elbow trauma on a degenerate tendon (tendinosis).

When asked to comment on the aggravation component in relation to pre-existing conditions identified on the operative report, Dr. Hoffman commented: ...The incident of April 11, 2005 may have caused a temporary aggravation (exacerbation) for 2-4 weeks. C. Employer ’s Claim Background 1. WCB Decision [ 15 ] On July 6, 2009 and December 10, 2009, the Employer asked the WCB to apply cost relief with respect to the compensable accident on several grounds.

This appeal/judicial review pertains only to the Employer’s application for cost relief based on a pre- existing condition of a degenerative ECRB tendon. [ 16 ] On September 14, 2009 and January 4, 2010, the WCB denied the Employer’s application for cost relief, finding that the medical evidence did not support the presence of any pre-existing condition that would have been aggravated by the work accident. 2. DRDRB Decision [ 17 ] The Employer requested a review of the WCB decision to the Dispute Resolution and Decision Review Body (DRDRB).

In its decision dated January 11, 2010, the DRDRB upheld the decision of the WCB denying the Employer cost relief.

3. Appeals Commission Decision [ 18 ] In the Decision, the AC upheld the decisions of the WCB and DRDRB, denying cost relief based on a pre-existing condition of a degenerative ECRB tendon, concluding that: - under Policy 03-02 and Policy 05-02, the compensable accident did not aggravate a pre-existing condition; and - under Policy 05-02, the weight of medical evidence does not show that a separate pre-existing condition of tendinosis caused an increase to the period or degree of disablement. 4.

Threshold Reconsideration Decision [ 19 ] On July 22, 2010, pursuant to s 13.1(7) of the Workers ’ Compensation Act , RSA 2000, c W-15 (the Act), the Employer applied to the AC for reconsideration of the Decision. On December 3, 2010, pursuant to ss 5.5(1) and (2) of the Appeal Rules for Reconsideration Applications, authorized by the Act, s 13.1(3), a new AC panel denied the Employer’s application for reconsideration (Threshold Reconsideration Decision), finding that threshold requirements for reconsideration had not been met. That decision is not under appeal or judicial review before me. 5.

Appeal/Judicial Review of the Decision [ 20 ] On December 20, 2010, the Employer filed an appeal and application for judicial review of the Decision based on a pre- existing condition of a degenerative ECRB tendon. Although the reasons for the Threshold Reconsideration Decision were included in the Return, I have not considered them in reaching my conclusion. Both appeals and judicial review of AC decisions are based on the record before the tribunal whose decision is under review. The Threshold Reconsideration Decision was obviously not before the AC and, therefore, not properly before me. III.

Issues [ 21 ] The following issues are raised by the Employer on this appeal/judicial review: 1. Did the AC err in its assessment of Dr. Huckell ’ s evidence by making an unreasonable inference? 2. Did the AC fail to give sufficient reasons for its assignment of weight to medical evidence? 3. Did the AC misinterpret WCB Policy 03-02,

Part II on aggravation by requiring that a pre-existing condition be symptomatic? 4. Did the AC fail to give sufficient reasons for denying cost relief based on a pre-existing condition prolonging the disability period as a separate factor? 5. Did the AC err in considering irrelevant evidence relating to how the Decision will affect Mr. Snider ’ s entitlements? [ 22 ] For each issue I must determine:

A) What is the appropriate standard of review; and

B) Does the Decision meet the standard of review? IV. Analysis A. What is the appropriate standard of review? 1. Identifying the appropriate standard of review [ 23 ] In Dunsmuir v New Brunswick , 2008 SCC 9 at para 62 , [2008] 1 SCR 190, the Supreme Court of Canada set out the two step process for standard of review analysis. First, courts must ascertain whether jurisprudence has satisfactorily determined the appropriate standard of review.

Second, where jurisprudence has not yet identified the appropriate standard, courts must analyze the contextual factors making it possible to identify the proper standard of review. [ 24 ] In Gahir v Alberta (Workers' Compensation Appeals Commission) , 2009 ABCA 59 at para 13 , 448 AR 135, the following standards of review were identified for reviewing AC decisions: - findings of fact, credibility and mixed fact and law are reviewed for reasonableness; -

interpretation of workers’ compensation policies and the application of policies to particular fact situations are reviewed for reasonableness, with an employee’s entitlement to compensation and quantum thereof generally falling in this category; - the

interpretation of sections of the Act lying within the expertise of the WCB or Appeals Commission and the application of that law to particular facts are reviewed for reasonableness; and - true jurisdictional issues are reviewed for correctness. [ 25 ] The Decision makes findings of fact and interprets and applies WCB policy to facts. Jurisprudence has satisfactorily determined that the appropriate standard of review of the Decision with respect to the issues identified is reasonableness. 2.

Defining the appropriate standard of review [ 26 ] In Dunsmuir at para 47 , the reasonableness standard is described as follows: 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. [27] In determining whether a decision is reasonable, the court is concerned with the existence of a rational basis for the decision, the adequacy of the explanation of that rational basis, and whether the outcome falls within a range of defensible outcomes.

[28] A decision will be considered reasonable if, on a somewhat probing examination, its reasons exhibit a line of analysis that could reasonably lead from the evidence to its conclusion. If the reasons can stand up to a somewhat probing examination, the decision is not unreasonable: Watson v Alberta (Workers' Compensation Board) , 2010 ABQB 280 at para 87 , 491 AR 307. B. Does the Decision meet the standard of review? 1. Did the AC err in its assessment of Dr. Huckell ’s evidence by making an unreasonable inference? [29] Dr. Huckell physically examined Mr. Snider before and after surgery.

When asked to comment on whether Mr. Snider’s restrictions were considered related to the compensable injury/surgery or to other factors, Dr. Huckell commented that “His current restrictions are considered related to his injury/surgery and not other factors. ” The Appeals Commission concluded that meant that Mr. Snider’s restrictions were caused by the compensable accident and not a pre-existing degenerative ECRB tendon. [30] The Employer argues that this is as unreasonable inference, in that Dr. Huckell’s reference to “injury/surgery” could include aggravation to a pre-existing degenerative ECRB tendon.

The Employer argues that it was unreasonable for the AC to infer from this line that Dr. Huckell attributed Mr. Snider’s restrictions solely to the compensable accident. The Employer argues in the alternative that if this inference is reasonable, the Decision is unreasonable in that it fails to provide sufficient reasons for adopting this

interpretation of Dr. Huckell’s evidence. [31] The WCB argues that the inference drawn from Dr. Huckell’s report is reasonable because Dr. Huckell was live to the issue of causation, particularly whether Mr. Snider’s condition was related to the compensable accident or other conditions. [32] Where an administrative body is habitually called upon to make findings of fact in a distinct legislative context, it can be said to have gained a measure of relative institutional expertise: Dr. Q v College of Physicians & Surgeons (British Columbia) , 2003 SCC 19 at para 29 , [2003] 1 SCR 226.

It is frequently necessary for the AC to draw inferences from, and make findings of fact based on, medical evidence to adjudicate claims; sometimes that medical evidence is not entirely clear. Interpreting medical evidence falls within the relative expertise of the AC, and therefore deference is owed to the AC’s assessment of Dr. Huckell’s evidence. The inference need only fall within the range of reasonable alternatives. [33] The context of this line in Dr. Huckell’s report is significant. Dr.

Huckell’s comment was in response to a question specifically asking “whether restrictions are considered related to the compensable injury/surgery or to other factors” (emphasis added). Furthermore, one of the purposes of examination listed in the report is to “indicate whether the restrictions are related to the compensable injury or other factors.” Although Dr. Huckell did not repeat the word “compensable” before “injury”, he was responding to a question of causation. It was reasonable for the AC to infer that his comment speaks to the issue of causation and whether Mr.

Snider’s condition was caused by the compensable injury or a pre-existing condition. [34] The context of Dr. Huckell’s report indicates that he was aware that causation was in issue since that was the question he was asked. It was, therefore, reasonable for the Appeals Commission to infer that Dr. Huckell’s response was in regards to the cause of the compensable injury. This inference was within its expertise and falls within the range of reasonable alternatives. [35] The Employer argues, then, that the Decision is unreasonable because it does not adequately explain why the Appeals Commission adopted this

interpretation of Dr. Huckell’s evidence. In order to meet the standard of reasonableness a decision must explain why one possible conclusion is preferred over another possible conclusion: Sharif v Alberta (Appeals Commission for Alberta Workers ’ Compensation ) , 2011 ABCA 75 at para 16 . However, an exhaustive review of all reasonable

interpretations of each individual piece of medical evidence and detailed explanation of why one

interpretation is adopted is not necessary to meet the standard of reasonableness. [36] As noted, the AC accepted that Dr. Huckell knew that causation was in issue. Further, in its reasons it also considered Dr. Drouin’s evidence and the traumatic nature of the injury. A more detailed explanation of why the inference was drawn is not necessary to meet the standard of reasonableness. The AC’s

interpretation of Dr. Huckell’s evidence is justified, transparent, and intelligible, and meets the standard of reasonableness.

2. Did the AC fail to give sufficient reasons for its assignment of weight to medical evidence? [37] The AC placed more weight on the evidence of Dr. Huckell and Dr. Drouin, and less weight on the evidence of Dr. Hoffman. [38] The Employer does not dispute the assignment of more weight to Dr. Huckell’s evidence. Rather, the Employer argues that the Decision does not provide sufficient reasons for preferring the evidence of Dr. Drouin over that of Dr. Hoffman. The Employer argues that Dr.

Hoffman’s evidence should prima facie have been given more weight because of his superior qualifications and more detailed report. [39] The weight given to medical evidence falls within the AC’s relative expertise. It is not the role of the reviewing court to re- weigh evidence: Schroder v Alberta (Workers' Compensation Board) , 2010 ABCA 344 at paras 11-13 , 490 AR 298. However, a tribunal must provide a rational and transparent reason for preferring one conclusion over another: Sharif at para 16 . Therefore, the issue is whether the Decision provides a reason for the assignment of more weight to Dr.

Drouin’s evidence, and whether that reason makes sense. [40] The AC considered and rejected Dr. Hoffman’s evidence in favour of Dr. Huckell’s evidence for two reasons: 1) Dr. Huckell physically examined Mr. Snider as opposed to conducting a documentary review; and 2) Dr. Huckell examined Mr. Snider both before and after surgery. [41] The AC found further support for Dr. Huckell’s evidence on two additional grounds: the traumatic nature of the injury and the lack of symptoms before the compensable accident. [42] The AC then indicated that it preferred Dr. Drouin’s opinion because it was supported by Dr.

Huckell’s opinion, which has already reasonably been given more weight. This reason is clear from the Decision and it makes sense. This is sufficient to meet the standard of reasonableness. [43] In any case, the Decision is to be reviewed as a whole. The ultimate conclusion that the compensable accident caused the degenerative tendon is based on multiple pieces of evidence: that of Dr. Huckell, Dr. Drouin, and the traumatic nature of the injury. There is sufficient evidence on which to base the ultimate conclusion that the aggravation policy does not apply. The assignment of less weight to Dr.

Hoffman’s evidence does not render the Decision unreasonable. 3. Did the AC misinterpret WCB Policy 03-02,

Part II on aggravation by requiring that a pre-existing condition be symptomatic? [44] Policy 05-02 Parts I and II set out the general cost relief policy. Under this policy, the WCB may relieve the Employer of claim costs when an employee suffers from a pre-existing condition. There are two avenues for pursuing cost relief based on a pre- existing condition: 1. where a compensable accident aggravates a pre-existing condition; and 2. where the pre-existing condition prolongs the period or degree of disablement as a separate factor.

[45] Policy 03-02

Part I sets out the basic policy for cost relief based on aggravation of a pre-existing condition: When an accident causes a pre-existing condition or disease to deteriorate or become symptomatic to the point where a worker is no longer able to perform all aspects of the job, the WCB shall allow entitlement on the basis of an aggravation factor. [46] To trigger the aggravation policy there must be a confirmed presence of a pre-existing condition. Policy 03-02

Part I defines pre-existing condition as: ... any pathological condition which, based on a confirmed diagnosis or medical judgment, pre-dated a work-related injury. [47] The AC found that Mr. Snider was asymptomatic before the compensable accident, and concluded that there was no aggravation of a pre-existing condition.

There are two lines of reasoning which could lead from the evidence to this conclusion: 1) The degenerative ECRB tendon literally did not pre-exist the compensable accident, but rather was caused by the compensable accident; or 2) The degenerative ECRB tendon may have pre-existed the compensable accident in the literal sense, but does not qualify as a pre- existing condition under the aggravation policy because it was not symptomatic. [48] The second line of reasoning adopts the definition of “pathological pre-existing condition” initially submitted by the WCB in Thompson Brothers (Construction) Ltd v Alberta (Appeals Commission for Alberta Workers ’ Compensation) [1] , 2010 ABQB 705 at para 52 , in which the WCB argued that a pre-existing condition must be symptomatic or disabling to some degree for the aggravation policy to apply.

Verville J in Thompson Brothers accepted that the AC was bound by this change in WCB Board policy and that its decision was reasonable. [49] The Employer argues that the Decision follows the second line of reasoning, denying cost relief because the pre-existing condition was not symptomatic, and further argues that this

interpretation of “pathological pre-existing condition” is unreasonable. The WCB also argues that the Decision follows the second line of reasoning, denying cost relief because the pre-existing condition was not symptomatic, but argues that this

interpretation of “pathological pre-existing condition” is reasonable. [50] Despite the submissions of the parties, in my view, the AC did not follow the second line of reasoning, and did not deny cost relief because Mr. Snider was asymptomatic. At paras 56-57 of the Decision, the AC reasoned that the traumatic nature of the injury and the evidence of Dr. Huckell and Dr. Drouin supported the conclusion that there was no aggravation of a pre-existing condition.

This analysis only supports the first line of reasoning: that the degenerative tendon literally did not pre-exist the compensable accident, but rather was caused by the compensable accident. Therefore, the AC denied cost relief on the basis that there was no pre-existing condition in the literal sense. This is simultaneously a finding of no causation and no pre-existing condition. [51] The Employer argues the only reason for the AC to find that Mr. Snider was asymptomatic was to support the conclusion that the degenerative ECRB tendon did not qualify as a pre-existing condition under the policy.

The Employer argues that the finding itself suggests the Decision is based on an

interpretation of “pathological pre-existing condition” which requires it to be symptomatic. [52] The Employer’s argument fails because the finding that Mr. Snider was asymptomatic before the compensable accident also supports the conclusion that the compensable accident caused the degenerative ECRB tendon. The AC found that Mr. Snider was asymptomatic to support the inference drawn from Dr. Huckell’s evidence that the compensable accident caused the degenerative ECRB tendon. [53] The AC did not adopt, let alone rely on, any

interpretation of “pathological pre-existing condition.” It need not be decided

here whether the

interpretation of “pathological pre-existing condition” requiring it to be symptomatic or disabling to some degree is reasonable, because in my view the AC did not consider that definition to reach its conclusion. [54] The Employer argues that the Decision lacks transparency in that there is no explicit finding as to whether the degenerative ECRB tendon is a pre-existing condition. It would be ideal if tribunals would explicitly break down reasons for their conclusions into essential elements. However, the standard of reasonableness does not require that a decision be articulated perfectly.

The standard of reasonableness looks at the decision as a whole and requires that there be a tenable line of reasoning sufficient to support the conclusion: Law Society of New Brunswick v Ryan , 2003 SCC 20 , [2003] 1 SCR 247; Lehigh Inland Cement Ltd. v B.B.F., Local D359 , 2008 ABCA 128 , 433 AR 194. Given that the medical evidence relied on supports only one line of reasoning, the basis for the Decision is clear. Although the line of reasoning is not as obvious as it ideally could have been, the Decision is sufficiently transparent to meet the standard of reasonableness. 4.

Did the AC fail to give sufficient reasons for denying cost relief based on a pre-existing factor as a separate condition? [55] As set out above, there are two avenues for pursuing cost relief based on a pre-existing condition. Under Policy 05-02, the second avenue for granting cost relief is where a pre-existing condition prolongs the period of disablement as a separate factor. For example, Mr.

Snider’s pre-existing cardiac and liver problems were not aggravated by the compensable accident, but these conditions did delay surgery, thereby prolonging the period of disability as a separate factor. [56] The AC rejected the Employer’s argument that the degenerative ECRB tendon prolonged the period of disability as a separate pre-existing condition on the basis that there was no evidence to support this contention, noting that Dr. Hoffman did not consider the ERCB tendinosis to be a separate condition.

He expressly indicated that “the April 11, 2005 probably contributed some damage to a long-standing tendinosis”. [57] The Employer argues that the only reasonable

interpretation of Dr. Hoffman’s evidence is that the degenerative ECRB tendon was both aggravated by the compensable accident and also contributed to the disability period as a separate factor. Therefore, the Employer argues, Dr. Hoffman’s evidence supports cost relief based on a pre-existing condition as a separate factor. [58] Regardless of whether the AC’s assessment of Dr. Hoffman’s evidence on this issue is reasonable, ultimately it was not necessary to reach a conclusion on this issue. The AC reiterated that it rejected Dr. Hoffman’s evidence in favour of the evidence of Dr. Huckell and Dr.

Drouin, and concluded that there was no pre-existing condition. This alone explains why the AC found no support for this avenue of cost relief in Dr. Hoffman’s evidence and brings the AC’s conclusion within the standard of reasonableness. [59] In any case, the AC’s

interpretation of Dr. Hoffman’s evidence on this issue is reasonable. Even if a single pre-existing condition can simultaneously be aggravated and contribute to the disability period as a separate factor, this was not Dr. Hoffman’s explanation of the events. If the degenerative ECRB tendon was aggravated, it was not a separate factor. The AC’s

interpretation of Dr. Hoffman’s evidence is reasonable and falls within the range of defensible outcomes. [60] The most concise way of resolving this issue would be to reiterate the finding that the degenerative tendon did not pre-exist the compensable accident, but the standard of reasonableness does not require the most concise articulation of reasons. The standard of reasonableness requires the conclusions be based on a line of reasoning which is justified, rational and transparent. The Decision rejects Dr. Hoffman’s evidence on this issue and provides rational reasons for doing so.

The Decision does not find a separate pre-existing condition because it reasonably finds no evidence to support such a finding. This line of reasoning may not be the most direct route to the conclusion, but it is a rational and transparent line of reasoning which brings the Decision within the standard of reasonableness. 5. Did the AC err in considering irrelevant evidence relating to the effect of the Decision on Mr. Snider ’s entitlements? [61] During the AC hearing, the AC panel expressed concerns about holding the hearing in the absence of Mr. Snider and the effect on Mr.

Snider’s entitlements should there be a finding that a pre-existing condition had been aggravated. The Employer cites the transcript of the hearing in support of the argument that the AC panel took into account these irrelevant considerations in arriving at the Decision. The WCB submits that the Decision is in no way based on irrelevant considerations.

[62] There is no indication the AC based its Decision on how it would affect Mr. Snider’s entitlements. There is a rational, transparent line of reasoning which leads from the evidence to the conclusions, which does not rely on these considerations. Any expression of concern during the AC hearing about the effect of the Decision on Mr. Snider’s entitlements does not render the Decision unreasonable. V. Conclusion [63] The Decision interprets and accepts medical evidence finding that the compensable accident caused Mr. Snider’s degenerative ECRB tendon.

The Decision interprets and rejects medical evidence finding that the degenerative tendon pre-existed and was aggravated by the compensable accident. The Decision provides rational reasons for its

interpretation of and assignment of weight to the medical evidence it relies on. [64] The Decision relies on its

interpretation of medical evidence in concluding that aggravation policy does not apply, and a lack of medical evidence in concluding that the degenerative tendon does not constitutes a separate pre-existing condition. Ultimately, these are two ways of articulating the same underlying conclusion: the degenerative tendon literally did not pre-exist, but was caused by the compensable accident. This line of reasoning rationally leads from the evidence to the conclusion and runs consistently throughout the Decision. The basis for the Decision is justifiable, transparent, and intelligible.

The Decision, as a whole, meets the standard of reasonableness. [65] The appeal and application for judicial review is dismissed. Heard on the 14 th day of June, 2011. Dated at the City of Edmonton, Alberta this 26 th day of July, 2011. D.L. Shelley J.C.Q.B.A. Appearances: Kenneth W. Penonzek Penonzek Kowalchuk for the Applicant

Ron Goltz The Workers’ Compensation Board of Alberta Alexander C. Phillips The Appeals Commission for Alberta Workers’ Compensation for the Respondents [1] Currently under appeal.