Bruce Tompkins Applicant - v. -, 2012 ABQB 418

Court of Queen ’ s Bench of Alberta Citation: Tompkins v Alberta (Appeals Commission for Alberta Workers ’ Compensation), 2012 ABQB 418 Date: 20120628 Docket: 0603 14897 Registry: Edmonton In the Matter of the Workers ’ Compensation Act , being

Chapter W-15 of the Revised Statutes of Alberta, 2000, and Amendments thereto; And in the matter of the Certain Decision of the Appeals Commission dated the 29 th day of May, 2006 Between: Bruce Tompkins Applicant - and - Alberta (Workers ’ Compensation Act, Appeals Commission) Respondent Corrected judgment: A corrigendum was issued on July 27, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M. David Gates _______________________________________________________

Introduction [ 1 ] In 1975, Bruce Tompkins was struck by a piece of equipment while working on an oil drilling rig. He was thrown and fell into the drilling rig draw works. He suffered a 5-inch laceration to the occipital area of his scalp, full depth and ragged, requiring 15 to 20 stiches. He also complained of a painful right elbow. X-rays of the elbow were negative and x-rays of the head and cervical spine indicated no fractures and well preserved disc spaces. Dr. Frain diagnosed a scalp laceration and right elbow strain. [ 2 ] Mr.

Tompkins claimed workers ’ compensation and was paid total temporary disability benefits (TTD) for nine days (August 21 to 29, 1975). He returned to work on the rigs in October 1975. [ 3 ] Mr. Tompkins continued to work over the years as a heavy equipment operator, despite experiencing some back and neck pain since the 1975 injury. In the early 2000s, he found he could no longer work due to chronic neck and back pain. [ 4 ] By correspondence dated February 28, 2002, he requested that the WCB reopen his claim as he had developed degenerative arthritis of the cervical spine.

He stated that the accident was the cause of the arthritis as it was the only injury sustained to his head and neck throughout his medical history. On May 29, 2002, WCB denied the request to reopen the claim. [ 5 ] On June 24, 2003, Mr. Tompkins requested that the WCB accept responsibility for the degenerative changes in his neck, shoulder and right arm as well as a closed head injury he allegedly suffered in the accident. He provided a number of additional medical reports and other new evidence.

The WCB requested and received additional medical records from WCB in British Columbia for the period between 1975 and 2002 and conducted additional medical reviews. The information indicated that Mr. Tompkins had filed several claims relating to neck and back pain with the WCB of British Columbia between 1980 and 2001. On January 9, 2004, the WCB advised Mr. Tompkins that his claim for ongoing benefits was denied as the WCB was unable to relate his ongoing difficulties to the accident. [ 6 ] In April 2004, Mr. Tompkins requested payment of TTD for August 30, 1975 to September 30, 1975.

The WCB found no evidence that he was disabled from work beyond August 25, 1975, and denied the request in correspondence dated April 24, 2004. [ 7 ] On June 9, 2004, Mr. Tompkins requested review by the Decision Review Body (DRB) of the WCB decisions on his claims for degenerative disc disease and a closed head injury. The DRB denied the appeal for a closed head injury on August 25, 2004.

A decision on degenerative disc disease and neck problems was deferred pending review by a medical panel for determination pursuant to s. 46.1 of the Workers ’ Compensation Act , c W-15, RSA 2000. [ 8 ] On February 24, 2005, the Appeals Commission upheld the decision to deny compensation for a closed head injury and payment of further TTD benefits. [ 9 ] On May 11, 2005, a medical review panel concluded that Mr. Tompkins did not have a definable impairment occurring from the 1975 elbow, head or neck injury.

It also determined that he had cervical spondylosis but that any impairment was somatoform, and the 1975 injury could be a possible factor but not the cause of the cervical spondylosis. After receipt of the medical panel report, the DRB again considered the outstanding degenerative disc disease issues. The DRB decision of June 29, 2005 stated that the medical findings of the medical panel were binding on the DRB, and that a probable relationship had not been established between the development of a cervical spondylosis and the accident. [ 10 ] Mr. Tompkins appealed to the Appeals Commission (AC).

In its decision of May 29, 2006, the AC denied the appeal of the June 29, 2005 DRB decision. [ 11 ] Mr. Tompkins requested reconsideration of the May 29, 2006 decision. The AC denied the request for reconsideration on

October 24, 2006, finding that Mr. Tompkins had not submitted any new information nor demonstrated any error of law, jurisdiction, fact or process that would warrant a rehearing. [ 12 ] Mr. Tompkins applied for judicial review of the May 26, 2006 AC decision by way of Originating Notice of Motion dated November 26, 2006. The AC and WCB agreed to adjourn to a special chambers date. The matter was then adjourned by Mr. Tompkins and no further contact with WCB occurred for approximately four and a half years. On April 7, 2011, current counsel contacted the AC to request dates for the hearing.

The hearing was ultimately confirmed on December 1, 2011 and heard on April 17, 2012. Positions of the Parties [ 13 ] Mr. Tompkins argues that the AC erred in considering itself bound by the medical panel decision, and abdicated its role as decision maker. It also erred in its application of the standard of proof and law of causation to the facts of the case. Mr. Tompkins cites Shuchuk v Alberta (Workers ’ Compensation Board, Appeals Commission) , 2007 ABCA 213 , 409 AR 321 . [ 14 ] The WCB submits that the AC is bound by the medical findings of a medical panel: s. 46.1 of the Act .

Both the WCB and AC are bound by WCB policies and are required to apply them in their decisions and determinations: s. 13.2(6)(b). Further, the AC considered the entirety of the evidence before it in rendering its decision as prescribed by the Court in Alberta (Workers ’ Compensation Board) v Alberta (Appeals Commission for Alberta Workers ’ Compensation) , 2010 ABQB 368 , 504 AR 79 ( Wallace ) . [ 15 ] The WCB further argues that the standard of proof applicable to adjudication of workers compensation claims in Alberta is the balance of probabilities: Policy 01-03,

Part 1. The test of causation to be applied was not raised in argument before the AC. The Shuchuk decision was decided over a year after the AC decision was released and was the first time the courts had addressed the proper test of causation to be used in WCB cases, and therefore the AC ’ s failure to apply the legal principles in that case cannot be considered an error.

The AC could reasonably find that the injuries complained of (cervical spondylosis and related conditions) were not caused or contributed to by his 1975 accident, either through application of the “ but for ” test or the “ material contribution ” tests. [ 16 ] On this last point, counsel for the AC submits that the law of causation from the tort system has been imported into workers ’ compensation cases, and a substantial connection must exist between the injury and the compensable accident: Shuchuk .

The material contribution test is only to be used when the “ but for ” test is unworkable: Resurfice Corp v Hanke , 2007 SCC 7 , [2007] 1 SCR 333 . [ 17 ] Finally, the WCB submits that relief should be denied due to delay in advancing this application, and the Applicant ’ s impecuniosity is not an excuse: PPG Industries Ltd v Canada (Attorney General) , [1976] SCR 739; Strachan (cob Kats) v Edmonton (City) , 2003 ABQB 309 , 349 AR 289 .

The Applicant responds that no prejudice is alleged, noting that the WCB process took longer than the five years which have passed since the filing of the judicial review. [ 18 ] The WCB also raises a preliminary issue: only questions of fact or mixed fact and law are pled as grounds of judicial review in the Originating Notice of Motion and the only relief sought is judicial review. Mr.

Tompkins has not sought appeal on issues of law and jurisdiction pursuant to s. 13.4 of the Act and such issues are consequently not properly before the Court: Sarcee Gravel Products Inc v Alberta (Workers' Compensation Board) , 2006 ABQB 56 , 394 AR 74 ; Foster v Alberta (Transportation and Safety Board) , 2006 ABCA 282 , 397 AR 82 . [ 19 ] Mr. Tompkins argues that this Court has jurisdiction to judicially review the decision, even where a right of appeal exists: Buckley v Entz Estate , 2007 ABCA 7 , 401 AR 231 , leave denied [2007] SCCA No 146 at paras 13 to 14.

The issues in this case involve issues involving WCB policy in relation to causation, which are mixed fact and law: Alberta (Workers ’ Compensation Board v Alberta (Appeals Commission for Alberta Workers ’ Compensation) , 2005 ABQB 161 , 374 AR 336 at paras 56 to 61 , Melanson v Alberta (Appeals Commission for Alberta Workers ’ Compensation) , 2011 ABQB 104 , 511 AR 158 at para 29 , Allsop v Alberta (Appeals Commission for Alberta Workers' Compensation) , 2010 ABQB 472 , 16 Admin LR (5th) 132 at paras 13 to 15 , Buckley v Entz at paras 22, 32.

There is no right of appeal on questions of mixed fact and law: Patrus v Alberta (Workers' Compensation Board, Appeals Commission) , 2011 ABQB 523 at paras 45 to 46 . Preliminary Issue [ 20 ] Questions of fact or mixed fact and law are pled as grounds of judicial review in the Originating Notice of Motion, however

the Applicant initially argued before this Court that the AC erred on questions of jurisdiction or law by considering itself bound by themedical panel decision and failing to consider causation on a de minimis standard. The Applicant subsequently backtracked during oralargument in response to the preliminary issue raised by the WCB. [21] In my view, the Applicant essentially complains in the Originating Notice and before this Court that the AC did not properlyapply the law to the facts of the case before it.

True questions of jurisdiction are very narrow and exceptional: ATA at paras 33 to 44.With respect to the weight to be attributed to the medical panel report, the AC restated s. 46.1(5) of the Act, which provision has not beenchallenged on this review. The AC did not expressly address the test for causation. The conclusion on causation involves application oflaw to facts.

Questions of mixed fact and law can be addressed by this Court in the context of a judicial review. [22] Assuming that the Applicant raises issues more weighted toward pure law, I will briefly consider whether the matter isproperly before the Court. The WCB cites Foster v Alberta (Transportation and Safety Board), 2006 ABCA 282, 397 AR 82, howeverin that case the statutory regime provided for appeals on questions of jurisdiction and law to the Court of Appeal, while judicial reviewswould come before the Court of Queen’s Bench.

The Court of Appeal held that Court of Queen’s Bench lacked jurisdiction to hear amatter of procedural fairness (question of law) on a judicial review. [23] Slatter JA held in Buckley v Entz Estate: 13 The [Workers’ Compensation] Act gives a right of statutory appeal to the Court of Queen's Bench on a question of law orjurisdiction. Issues of mixed fact and law, or pure fact, are subject to judicial review. In borderline cases there may be some uncertaintyas to the appropriate procedure.

To avoid this problem it is increasingly becoming the practice of cautious applicants to launch anapplication for judicial review, and an appeal, under the same Originating Notice. The respondents Buckley and H&R Transport did notappeal the decision of the Appeals Commission. Rather, they applied for judicial review only.

Counsel for the Appeals Commissiondrew this to the panel's attention during argument. 14 The Court of Queen's Bench has jurisdiction to judicially review the decisions of tribunals, even where a right of appeal exists.However, where an equally effective alternative remedy exists, the court will often exercise its discretion to refuse a remedy on judicialreview: Harelkin v. University of Regina, (SCC), [1979] 2 S.C.R. 561, 26 N.R. 364; Canadian Pacific Ltd. v. MatsquiIndian Band, (SCC), [1995] 1 S.C.R. 3, at paras. 32-38, 112, and 140-153.

The courts generally insist on theexhaustion of administrative remedies, in order to avoid undermining the administrative appeal structure with applications for judicialreview. An application for judicial review in the face of an administrative appeal deprives the appeal tribunal of its jurisdiction itself tohear the appeal.

However, where the right of appeal and the application for judicial review would both be to the same tribunal (the Courtof Queen's Bench), this factor is not in play, and there is no reason why judicial review on a question of law or jurisdiction should not beavailable notwithstanding the right of appeal. The standard of review will be the same whether the matter is brought forward by judicialreview, or by way of appeal: Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19, atpara. 21.

Therefore, in these circumstances it is not always necessary for the court to recast the proceedings under Rule 753.16, althoughthat rule confirms that the form of the application is no impediment to the relief applied for.

Thus the form of the application before theCourt of Queen's Bench is not of any significance in this matter. [24] Therefore, Slatter J.A. in Buckley noted that the policy issues in a Foster type of regime do not arise where the appeal andjudicial review would both be heard by the same reviewing body and the same standard of review applies. [25] In my opinion, Slatter J.A.’s comments in Buckley (which was a WCB case) undermine to some extent the position TrusslerJ. expressed in another WCB case, Sarcee Gravel Products Inc v Alberta (Workers' Compensation Board), 2006 ABQB 56, 394 AR 74,also relied on by the WCB.

Trussler J. in Sarcee noted some procedural distinctions between judicial review and appeal, for example theRules required that an application for judicial review be served on the Attorney General, while there was no similar requirement for astatutory appeal under the Act. Accordingly, a proceeding mistakenly commenced as a statutory appeal would not necessarily meet theprocedural requirements for a judicial review. As in the present case, the applicant in Sarcee had applied for judicial review, but castsome of the questions as issues of law.

Trussler J. essentially addressed the issues in the framework of a judicial review, finding that allof the issues could be framed as questions of mixed law/fact although some were weighted more toward law. [26] Slatter J.A. in Buckley also mentioned the possibility of "recasting" the proceedings under 753.16 (now Rule 3.2(6)) whichallows the Court to convert pleadings where the parties chose the wrong type of proceeding. Trussler J. in Sarcee did not mention thatpossibility.

[ 27 ] In Precision Drilling Corp v Calgary (City) , 2011 ABQB 503 , 47 Alta LR (5th) 26 , McCarthy J. reviewed Buckley , Foster , and other cases, stating: 16 Taking into consideration all of the above, I cannot conclude that Slatter J.A. intended to say in Buckley that judicial review always should be available notwithstanding a statutory appeal when both are to be heard by this Court. To avoid rendering the right of appeal nugatory, a distinction must be made between the two remedies, regardless of the overlapping forum.

This is particularly so when the two remedies are subject to different conditions, as in this case where there is a significant difference in the relevant limitation periods. [ 28 ] Clark J reviewed the issue in a slightly different context in Patrus v Alberta (Workers' Compensation Board, Appeals Commission) , 2011 ABQB 523 at paras 9 to 18 . In the result, jurisdiction was found by virtue of an appeal.

However, Clark J. opined in obiter at paras 45 and 46 that Rule 3.2(6) might be used in certain circumstances to avoid denial of a remedy on the basis of a technical defect. [ 29 ] The WCB argues that the jurisdictional and procedural distinction between judicial review and appeal under the Act was raised by the AC in Buckley for the first time during oral argument before the Court of Appeal, and therefore the Court did not have the benefit of written argument and authorities presented by the parties or the Court of Queen ’ s Bench analysis.

The WCB further argues that Slatter J.A. ’ s comments in Buckley contradict the Court of Appeal ’ s reasons in Alberta (Workers' Compensation Board) v Appeals Commission , 2005 ABCA 276 , 371 AR 318 ( Davick ) . [ 30 ] In my view, the passage cited above from Buckley is persuasive. It does not diminish the distinctions underlined in Davick . Those distinctions must be kept in mind by the Court when hearing cases in which they are relevant.

Slatter J.A. in Buckley discusses general policy issues which distinguish regimes such as the one at play in Foster from situations where appeals and judicial review are heard by the same body. Those policy issues, among others, will guide the Court in particular circumstances in the exercise of its discretion as to whether to hear or refuse a remedy on judicial review. [ 31 ] In the present case, the Applicant clearly raises questions of mixed fact and law. However to the extent that he does raise questions more weighted toward law, I find that this Court has jurisdiction to hear the matter.

Conclusion [ 32 ] I do not accept WCB ’ s contention, raised by way of preliminary issue, that the issues raised by Mr. Tompkins are not properly before the Court. Mr. Tompkins seeks relief from this Court on the basis of alleged errors on the part of the AC in dismissing his claim.

Even assuming that his application for judicial review erroneously characterized some of the questions as issues of law, I am satisfied that this Court has jurisdiction to hear this matter. [ 33 ] Counsel are requested to contact the Court on or before July 15, 2012, indicating whether or not they wish to fix a date for the continuation of the oral hearing, or are content to have the Court make a decision on the merits of this application on the basis of the written materials submitted, the oral submissions made on April 17, 2012, and any further written submissions on the merits which the parties may wish to make.

Costs [ 34 ] If the parties are not able to agree on how costs for the hearing of this preliminary issue will be addressed, they are at liberty to provide written submissions on costs within 30 days of the date of this decision.

Heard on the 17 th day of April, 2012. Dated at the City of Edmonton, Alberta this 27th day of June, 2012. M. David Gates J.C.Q.B.A. Appearances: Johannes H. Schenk for the Applicant William P. Ostapek for the WCB Sandra Hermiston For the Appeals Commission _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Mr. Justice M. David Gates _______________________________________________________ Appearance for WCB has been changed from Jason J.J. Bodnar to William P. Ostapek.