Francis Schulte Applicant - v. -, 2012 ABQB 272

Court of Queen ’ s Bench of Alberta Citation: Schulte v. Alberta (Appeals Commission for Alberta Workers ’ Compensation), 2012 ABQB 272 Date: 20120424 Docket: 1203 01919 Registry: Edmonton Between: Francis Schulte Applicant - and - Workers ’ Compensation Appeals Commission Respondent - and - Workers ’ Compensation Board Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________

[ 1 ] Francis Schulte appeals from, and seeks judicial review of, a decision of the Workers ’ Compensation Appeals Commission dated August 25, 2011. In that decision, the Appeals Commission dismissed appeals brought by Mr. Schulte from two decisions of the Dispute Resolution and Decision Review Body of the WCB one dated December 16, 2009 and the other dated November 25, 2010. [ 2 ] Mr. Schulte ’ s involvement with the WCB goes back 25 years. In 1987 he suffered an injury to his right foot while he was employed. It was determined that Mr.

Schulte was entitled to compensation for that injury, indeed that he was permanently partially disabled by it. He continues to receive compensation in respect of that injury. [ 3 ] In 2006 Mr. Schulte was working in his own business as a producer of honey. As the proprietor of the business he was not required to have Workers ’ Compensation coverage. However, he was eligible to buy such coverage and he did so.

He purchased the minimum coverage available in 2006, $19,100, and paid the required premium. [ 4 ] In the summer of 2006 while engaged in the production of honey, he suffered two injuries, one to his left foot and one to his shoulder. He first made a claim in respect of the foot injury. The WCB determined that he was eligible for compensation. For a short time in September 2006 he received benefits on the basis that he was temporarily totally disabled by his foot injury.

Then it was determined that he could work to a limited extent and for the remainder of 2006 he received compensation on the basis that he was temporarily partially disabled by his foot injury. [ 5 ] He also filed a claim for compensation in respect of his shoulder injury. He was delayed in making the claim because diagnostic procedures were not completed until the spring of 2007. His claim that his shoulder injury was a compensable injury was denied initially. He appealed that determination to the Appeals Commission and on February 6, 2009 his appeal was granted.

The Appeals Commission determined that the shoulder injury suffered in the summer of 2006 was compensable. It referred the question of what compensation Mr. Schulte should receive in respect of that injury back to the Board. [ 6 ] The question of what compensation Mr. Schulte should receive for his shoulder injury was first addressed by a Customer Services Officer. He determined that, though the shoulder injury was compensable, Mr. Schulte was not entitled to any further compensation than he had already received in respect of the foot injury. Mr.

Schulte had also claimed that he should have received total temporary disability benefits for the period following the total partial disability benefits he received in respect of the foot injury, that is for the period after January 1, 2007. This was denied by the Customer Services Officer on the basis that Mr. Schulte was not totally disabled – he was fit for employment at some level. Mr. Schulte also claimed that he should be eligible for assistance from the WCB to enable him to continue in this bee keeping business despite his reduced work capacity.

At first instance this claim was also denied because he was held capable of earning an income close or equal to the amount of the personal coverage he had purchased. [ 7 ] Mr. Schulte appealed those determinations to the Dispute Resolution and Decision Review Body. On December 16, 2009 the Review Body issued a written decision in which it upheld the decisions at first instance. [ 8 ] In a separate claim, Mr. Schulte claimed that when he injured his left foot in the summer of 2006 the injury to his right foot, which he sustained initially in 1987, was aggravated.

This claim was denied at first instance and, on November 25, 2010, by the Dispute Resolution and Decision Review Body. [ 9 ] Mr. Schulte appealed the decisions of the Dispute Resolution and Decision Review Body dated December 16, 2009 and November 25, 2010 to the Appeals Commission. On August 25, 2011 the Appeals Commission dismissed his appeals. In this proceeding, Mr. Schulte appeals from and seeks judicial review of that determination. Standard of Review [ 10 ] There is no issue of jurisdiction in this matter. The issues are all either issues of fact or issues of mixed fact and law. They also involve

interpretation of Workers ’ Compensation policies and the application of those policies to the facts surrounding Mr. Schulte ’ s claims. At the hearing of this application there was no dispute as to the applicable standard of review – it is the standard of

reasonableness. That a reasonableness standard applies has been determined in previous proceedings of this nature – that is, appeals from and judicial reviews of the Workers ’ Compensation Appeals Commission. Gahir v. Alberta (Workers ’ Compensation Appeal Commission) 2009 ABCA 59 . The Appeals Commission Decisions [ 11 ] The Appeals Commission reasons for dismissing Mr. Schulte ’ s appeal address the five issues to which his appeals gave rise. Mr. Schulte ’ s Compensation Rate [ 12 ] The first issue was whether the WCB had appropriately calculated Mr.

Schulte ’ s compensation rate given the level of coverage he had purchased, $19,100. Mr. Schulte ’ s work was as a bee keeper and honey producer. This is an industry for which the WCB had not set a guaranteed coverage amount. In such a case, the WCB policy is that the guaranteed coverage amount is the minimum personal coverage amount. In Mr. Schulte ’ s case, that amount is $19,100. [ 13 ] Mr. Schulte had taken the position that his compensation rate should be the level of his maximum insurable earnings rather than his guaranteed coverage amount.

The Appeals Commission rejected that position because it was inconsistent with WCB policy which was founded on the Regulations under the Act and which was clearly articulated in policy documents. According to the policy, Mr. Schulte ’ s compensation rate was $19,100. The Appeals Commission found against Mr. Schulte on this issue. [ 14 ] Mr. Schulte argued before me that the context of the Workers ’ Compensation Act , the Regulations and the Polices, “ indicates that compensation rates are established based on the probable earnings capacity of similarly employed workers.

The decision made by the Appeals Commission is based on one specific part of the regulations and does not take into consideration the context of the regulation, legislation and policy as a whole or the intent of the legislators. ” He submitted the WCB neglected to establish his compensation rate based on the earnings of a similarly employed worker and thereby breached s. 15(1) of the Canadian Charter of Rights and Freedoms . [ 15 ] The Appeals Commission

interpretation of the Regulation and Policies in the context of the specific features of Mr. Schulte ’ s case, in particular, - that he was a business proprietor not obliged to be covered by the Act but who had purchased personal coverage; - that he worked in an industry for which the Board had not set a Guaranteed Coverage amount; - that he had purchased the minimum level of coverage, $19,100; is clearly a reasonable

interpretation of the applicable provisions of the Regulations and the Policies. The Appeals Commission conclusion as to Mr. Schulte ’ s compensation rate, that it was $19,100, is a reasonable conclusion. [ 16 ] I must reject Mr. Schulte ’ s suggestion that his rights under s. 15(1) of the Charter have been violated, an argument upon which, I note, he provided no elaboration whatsoever. There is nothing in the record or the facts surrounding Mr. Schulte ’ s claims to engage his Charter protected equality rights. Mr.

Schulte ’ s Entitlement to Temporary Partial Disability benefits in the fall of 2006 in respect of his shoulder injury [ 17 ] As noted, Mr. Schulte claimed compensation for the injury he suffered to his left foot in the summer of 2006. He was paid temporary total disability benefits in respect of that injury for the period beginning September 19, 2006 and ending September 2006. He

was paid temporary partial disability benefit from September 26, 2006 to December 31, 2006. The partial disability benefits were calculated on the basis that Mr. Schulte was able to work 3 hours a day after September 26, 2006. There was medical evidence supporting the conclusion that he was able to work 3 hours a day during this period and that he could return to the work he was doing at the time of his accident by January 1, 2007. There was also evidence that Mr. Schulte in fact worked at least 3 hours a day during the fall of 2006. [ 18 ] The Appeals Commission understood Mr.

Schulte ’ s claim to be for further compensation beyond that which he had been paid in respect of the earnings loss resulting from his left foot injury, because of his shoulder injury. The Commission said: In effect, what the worker was proposing was full wage-replacement benefits for the period consisting of the TPD [Temporary Partial Disability] benefit that recognized his earnings loss from only being able to work three hours per day due to his left foot fracture plus an additional TPD payment due to the should injury for the three hours he worked.

However, the partial wage-replacement benefit is based on the quantum of earnings lost due to disability arising from compensable injury or injuries. The benefit is not calculated separately for each injury. On the basis of the evidence, the panel has found that the worker continued to work in his self-employment business on a partial basis. His TPD benefit during the period recognized the earnings lost. The later acceptance of bilateral shoulder injuries did not change the amount he worked in his business or his earning lost during the period.

The panel concludes that the worker is not entitled to an additional TPD benefit between September 18, 2006 and December 31, 2006 as a result of his compensable shoulder injury because there is no evidence of earnings loss beyond that compensated through the TPD benefit provided for the left foot injury. [ 19 ] At the hearing of this matter Mr. Schulte suggested that this conclusion was inconsistent with and represented a misinterpretation of s. 60 of the Workers ’ Compensation Act . Clearly, however, that

section has nothing whatever to do with the issue at hand. It is a provision requiring the WCB to make a cost of living adjustment to compensation benefits in certain circumstances. It has no relevance in establishing the amount of the benefit payable in respect of an earnings loss resulting from a compensable injury. [ 20 ] In my view, the conclusion reached by the Appeals Commission in respect of this second issue is also reasonable. Mr. Schulte ’ s entitlement to Temporary Total Disability Benefits after January 1, 2007 [ 21 ] The third issue decided by the Appeals Commission was whether Mr.

Schulte ’ s claim for Temporary Total Disability Benefits in respect of earnings loss resulting from his shoulder injury for the period following December 31, 2006 had merit. [ 22 ] The Appeals Commission actually decided this issue in respect of the period following December 1, 2007 because that was the date Mr. Schulte had referred to in his claim. It appears Mr. Schulte actually intended to claim temporary total disability benefits for the period following December 31, 2006, the date upon which his temporary partial disability benefits ended.

In my view, the difference in the dates makes no difference to the decision the Appeals Commission reached. [ 23 ] The Appeals Commission observed that the medical evidence established that Mr. Schulte was fit for modified work on a light level early in 2007. While there was a significant period of time after early 2007 for which there was no medical reporting as to Mr. Schulte ’ s condition, the reporting that did exist established that “ . . . up to June 21, 2007 and after March 13, 2009 the worker was not precluded from all employment as a result of his foot and shoulder injuries. ” [ 24 ] Mr.

Schulte ’ s position, however, was that though he may have been capable of light duties, suitable modified work was not available in his bee keeping, honey farming business. On that basis he claimed to be entitled to temporary total disability benefits pursuant to a WCB policy exception pursuant to which the WCB can pay such benefits where, through no fault of the worker, the worker ’ s period of disablement is prolonged by the unavailability of suitable modified work.

[ 25 ] The Appeals Commission noted that whether or not to grant benefits on the basis of this policy exception is entirely a discretionary matter for the WCB. Even so, the discretionary benefits payable under the policy exception are available only to workers who are in receipt of temporary total disability benefits and who cannot return to work though they are able to do modified work because suitable modified work is not available for them. Mr. Schulte ’ s situation was not within the policy because he was not receiving temporary total disability benefits at the relevant time.

He had not received such benefits since September 26, 2006. He was receiving temporary partial disability benefits. He had resumed work in late September 2006, albeit on a less physically demanding level. [ 26 ] The Appeals Commission also observed that there was a lack of evidentiary support for the proposition that there was no light duty available to Mr. Schulte in his bee keeping, honey farming operation. I have reviewed the evidence and in my view, this characterization of the evidence is not accurate. Mr.

Schulte ’ s evidence was that his duties did not include any light work. [ 27 ] However, in my view, the first observation made by the Appeals Commission relating to the prolonged disablement policy puts an end to the issue. Mr. Schulte was not eligible for consideration under the policy exception because he was not in receipt of any temporary total disability benefits which could be extended. Mr.

Schulte ’ s claim for temporary total disability benefits for the period following the termination of his temporary partial disability benefits was dismissed. [ 28 ] In my view, the Appeals Commission conclusions in that regard were reasonable. Mr. Schulte ’ s entitlement to vocational services and benefits for self-employment assistance [ 29 ] Mr.

Schulte claimed entitlement to assistance from the WCB to enable him to continue in the work he had been doing prior to his injury or to modify that work in such a way that he would be capable of doing it. [ 30 ] WCB policy concerning such assistance is that it must be established that the assistance is necessary in order for the worker to achieve earnings commensurate with his compensation rate, and the assistance must be cost effective in comparison to other reasonable return to work alternatives. [ 31 ] In Mr. Schulte ’ s case, it had been determined in July 2009 that Mr.

Schulte was capable of doing a job in which he could earn his compensation rate, $19,100. That decision was not appealed. In these circumstances, vocational services and benefits were not necessary in order for Mr. Schulte to earn income equal to his compensation rate. Such assistance would not be cost effective. Therefore, Mr. Schulte ’ s claim was denied. [ 32 ] In my view, the Appeals Commission conclusion on this point results from a reasonable

interpretation and application of WCB policy. Should Mr. Schulte ’ s injuries of 2006 be accepted as aggravating his right foot injury of 1987? [ 33 ] Mr. Schulte claimed that the injuries he suffered in 2006 to his left foot and shoulder aggravated the injury he suffered to his right foot in 1987 and for which he was receiving permanent disability benefits. [ 34 ] The Appeals Commission stated the applicable policy in this context as follows: . . . in situations where there is a pre-existing condition, the medical evidence must show that, as a result of the compensable accident, the pre-existing condition worsened.

[ 35 ] The Appeals Commission reviewed the medical evidence which included medical reports from November 2001, March 2004, and September 2004, (all of which preceded the summer of 2006 injury), and from November 2006. The conclusion drawn from the content of these reports was that the condition of Mr. Schulte ’ s right foot was the same after the 2006 injury as it had been before, i.e. that it had not been aggravated. [ 36 ] The Appeals Commission noted as well that in five reports from Mr. Schulte ’ s own physician written in the months following the 2006 injury, there was no mention of any problems with Mr.

Shulte ’ s right foot. There was mention of increased tingling and pains in both lets below the knee “ related to injury in [right] foot and ankle ” in a sixth report from Mr. Schulte ’ s doctor but apparently no indication that this resulted from the 2006 injury. [ 37 ] The Appeals Commission also referred to a July 2010 report from a WCB medical consultant who had been specifically asked to comment on the possibility of aggravation of the right foot injury by the left foot injury in the summer of 2006.

That consultant concluded that, “ . . . any ongoing symptoms in the right foot cannot be attributed to a left foot injury that is expected to have healed years ago. ” [ 38 ] The Appeals Commission concluded on this evidence that there was no support for Mr. Schulte ’ s contention that his right foot injury was aggravated by the 2006 injury. [ 39 ] In my view, the Appeals Commission ’ s assessment of the evidence was reasonable. Conclusion [ 40 ] The decisions of the Appeals Commission in respect of which Mr. Schulte has appealed or in respect of which he has sought judicial review were reasonable. Mr.

Schulte ’ s appeal and application is dismissed. Heard on the 20 th day of April, 2012. Dated at the City of Edmonton, Alberta this 24 th day of April, 2012. Brian R. Burrows J.C.Q.B.A. Appearances: Francis Schulte appeared without Counsel Sandra R. Hermiston

for the Workers ’ Compensation Appeals Commission Manoj Gupta for the Workers ’ Compensation Board