Bruce Tompkins Applicant - v. -, 2012 ABQB 783

Court of Queen ’ s Bench of Alberta Citation: Tompkins v Alberta (Appeals Commission for Alberta Workers ’ Compensation), 2012 ABQB 783 Date: 20121221 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 _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M. David Gates _______________________________________________________

Introduction [ 1 ] Bruce Tompkins (the Applicant) applies for judicial review of a decision of the Workers’ Compensation Appeals Commission (AC) which upheld a Decision Review Body (DRB) decision denying the Applicant compensation relative to a 1975 workplace injury. Facts [ 2 ] In 1975, the Applicant 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" 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. [ 3 ] The Applicant claimed workers’ compensation and was paid total temporary disability (TTD) benefits for nine days (August 21 to 29, 1975). He returned to work on the rigs in October 1975. [ 4 ] He continued to work over the years as a heavy equipment operator. He filed several claims relating to neck and back pain with the British Columbia Workers’ Compensation Board between 1980 and 2001.

In the early 2000s, the Applicant found that he could no longer work due to chronic neck and back pain. [ 5 ] Twenty-seven years after the accident, by correspondence dated February 28, 2002, the Applicant 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. [ 6 ] On May 26, 2002, the case manager issued a letter decision advising: ...Based on your request for reopening of your claim, your file will be forwarded to a Workers’ Compensation Board medical consultant. This consultant will review your file to determine if there is a direct relationship between your current difficulties and your injury in 1975. [emphasis added] [ 7 ] Dr.

Jones (consultant) responded in a May 15, 2002 memo to the following question: “In your opinion, are the worker’s current symptoms/diagnosis directly related to the injury under this claim?” [emphasis added] [ 8 ] Dr. Jones referred to, inter alia , the opinion of Dr. Roberts (neurologist), provided following a January 25, 2002 consultation, that the Applicant suffered from degenerative arthritis of the cervical spine related to constant trauma from his work as a heavy equipment operator. Dr.

Jones concluded that “it is not possible to find a relationship between the degenerative changes in this man’s spine and the incident under this claim”.

He noted the absence of any mention of neck injury around the time of the 1975 claim, and the fact that the first actual description of neck pain occurred in 1993 when the worker received physiotherapy treatment. (The physician’s report relating to an examination on March 18, 1993 lists physiotherapy as a treatment and states under “Describe complete the worker’s present condition”, “injured neck 3 months ago DOA [date of accident] ; was well until 3 days ago; pain flared up again while riding in a truck [...] ” ) [ 9 ] On May 29, 2002, WCB denied the request to reopen the claim due to an inability to relate the Applicant’s current medical difficulties to his 1975 claim.

[ 10 ] On June 24, 2003, the Applicant 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 British Columbia Workers’ Compensation for the period between 1975 and 2002 and conducted additional medical reviews.

The information indicated that the Applicant had filed several claims relating to neck and back pain with British Columbia Workers’ Compensation between 1980 and 2001. [ 11 ] Dr. McNicol (consultant) reviewed the medical information and provided a memo dated October 16, 2003. He stated that Dr. Roberts had noted in relation to the August 2, 2002 re-evaluation: “The role the original injury played in 1975 is difficult to determine but it is possible it began the degenerative process”. Dr. Brownlee had reviewed the Applicant on June 18, 2002 and again as a follow-up on January 27, 2003. Dr. McNicol noted that Dr.

Brownlee stated: “ Therefore it is more than likely (i.e. probable) that the accident contributed to the degenerative changes that he now has ” . Dr. McNicol stated: “ Dr. Brownlee noted he suspected that the injury contributed to his degree of degeneration that was present at that time ” . Dr. McNicol also summarized a report by Dr. Fenton of February 15, 2003, in which the latter concluded: “ It is reasonable to state that the accident in 1975 has contributed to the formation of the degenerative changes in the cervical spine ” . Dr. McNicol also referred to the February 20, 2003 report of Dr.

Mosewich who concluded: “ It seems probable that the injury is contributing somewhat to the problem and many clinicians believe the trauma causes micro tears and other injuries that do lead to chronic degenerative changes ” . [ 12 ] Dr. McNicol concluded at page 8 of his memo: The medical documentation, on file to date, supports the worker’s current symptoms are primarily related to degenerative disc disease of the cervical spine. In my opinion, the weight of expert opinion, at this time, supports causal relationship to the worker’s general job duties and/or the DOA MOI [mechanism of injury] under this claim.

From my perspective related to causation, on reviewing the literature, with respect to cervical spondylosis and general cervical degenerative changes, I would not support a direct causal link between the DOA MOI and the worker ’ s current multilevel degenerative changes. However, I acknowledge the weight of evidence and the weight of expert opinion by physicians that have assessed the injured worker. It would appear, there is an overall medical support for a causal relationship in this selective case. However, Dr. Roberts noted it was cumulative secondary to heavy equipment operating and Dr.

Mosewich noted it was related to the DOA MOI. [emphasis added] [ 13 ] On January 9, 2004, the WCB advised the Applicant that his claim for ongoing benefits was denied as the WCB was unable to relate his ongoing difficulties to the accident. [ 14 ] In April 2004, the Applicant 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. [ 15 ] On June 9, 2004, the Applicant requested review by the DRB of the WCB decisions on his claims for degenerative disc disease and a closed head injury. [ 16 ] Dr. M. Plageman (Medical Advisor for the DRB) reported on a file review on August 19, 2004: When I reviewed the file I could find no complaints or findings that related to the neck in 1975. Therefore it appears that the opinions of the specialists were based on self-reporting from the individual.

As such I do not believe that those opinions were based on correct information. This worker now in his age has classical degenerative disc disease. This is a progressive disease and will cause worsening pain and disability. Chronic degenerative disc disease does not require any antecedent trauma. In this case there was no antecedent trauma. ...Despite supportive comments from various physicians there is no logical reason to relate the degenerative disc disease to the events described in this claim... [emphasis added]

[ 17 ] 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 (the WCA ), the DRB stating at page 3: Subsequently Dr. K. McNicol reviewed the file October 17, 2003 and after noting the history and the specialists’ opinions, he indicated that he did not believe that there was a reasonable relationship but did acknowledge the weight of evidence from the other treating physicians. On December 19, 2003 Dr.

B.J. Lauber, Chief Medical Advisor of the Workers’ Compensation Board, reviewed the file and could not support a probable relationship between the injury and the worker’s neck pain of cervical degenerative changes. Lastly, Dr. M. Plageman, Medical Advisor for the Decision Review Body, also reviewed the file and could not find any relationship between the degenerative disease and the cervical spine and the injury as described.

In discussion with a Workers’ Compensation Board Medical Advisor, it was agreed the file would be referred for consideration of a Medical Panel to determine a causal relationship between the development of multi-level degenerative disc disease in the cervical spine to the August 20, 1975 accident. [emphases added] And at page 6: Mr. Tompkins’ file has been referred for consideration by a Medical Panel and the results of that Panel will determine responsibility and entitlement to any further benefits.

Therefore, no decision will be made on these issues until the Medical Panel has concluded its review and provided its Report. [emphasis added] [ 18 ] On February 24, 2005, the AC upheld the decision to deny compensation for a closed head injury and payment of further TTD benefits. [ 19 ] On May 11, 2005, a medical review panel met with the Applicant. He was interviewed and physically examined, and available medical information relating to the issues before the medical panel was reviewed by panel members. The panel concluded: 2.

Is there a cause/effect relationship of the above diagnosis or diagnoses to the compensable accident...on August 20, 1975?... ...The neurological literature describes that the progressive changes in the spine are ubiquitous... The injury of 1975 could be considered a possible factor but not the cause of the cervical spondylosis. The panel also concluded that the 1975 injury was not a significant factor predisposing to the development of the spondylosis. The spondylosis was not considered to be the explanation for Mr.

Tompkins physical findings and symptoms. ... [emphases added] [ 20 ] 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. It noted the medical panel’s conclusion: In the opinion of the panel the injury of 1975 could be considered a possible factor but not the cause of his cervical spondylosis. The panel also concluded that the 1975 injury was not a significant factor pre-disposing to the development of the spondylosis.

Spondylosis was not considered the explanation of Mr. Tompkins’ physical findings and symptoms.

...After consideration of the medical panel’s conclusion, a probable relationship between the development of a cervical spondylosis and the compensable accident has not been established. The medical panel concluded the 1975 injury was not a significant factor pre- disposing the development of spondylosis. Therefore, in keeping with the medical panel, the Workers’ Compensation Board does not have any responsibility for the development of Mr. Tompkins’ cervical spondylosis or his ongoing neck problems.... [ 21 ] The Applicant appealed to the AC.

In its decision of May 29, 2006, the AC denied the appeal of the June 29, 2005 DRB decision.

During the hearing, the Chair stated (transcript, p. 30): ...the most important thing here, I think, is are we bound by the findings of the medical panel. [ 22 ] The May 29, 2006 AC decision extensively cites the medical panel report, concluding at para 36: [36] The weight of evidence indicates that there is no relationship between the worker’s 1975 work accident and his current spondylosis of the cervical spine... ...[37] We are satisfied, based on the Medical Panel report, that even if the worker had suffered a neck injury in 1975, it did not contribute to or cause the cervical spondylosis. [ 23 ] The Applicant requested reconsideration of the May 29, 2006 decision.

The AC denied the request for reconsideration on October 24, 2006, finding that the Applicant had not submitted any new information nor demonstrated any error of law, jurisdiction, fact or process that would warrant a rehearing. [ 24 ] The Applicant applied for judicial review of the May 29, 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 the Applicant 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. [ 25 ] On June 28, 2012, this Court dismissed a preliminary objection based on the argument that the issues raised by the Applicant were not properly before the Court: 2012 ABQB 418 . Issues [ 26 ] The Applicant raises two issues: 1) Did the AC err in adopting the medical panel findings without undertaking any legal analysis or making a legal determination? 2) Did the AC apply the proper causation test? Standard of Review

[27] The Applicant, the WCB and the AC all submitted that the reasonableness standard applies to this Court’s review of the AC’sdecision based on the two issues raised. I agree. [28] The adjudication of workers’ compensation claims invariably involves the application of standards of proof and causationtests to the evidence before the tribunal. These functions are the core functions of the WCB and the AC and fall within their specializedjurisdiction. [29]

Interpretation of the WCA and policies, application to the evidence, standard of proof applied to the evidence, andinterpretation and application of medical panel findings for the purposes of deciding a matter are not true questions of jurisdiction or purelaw.

All are subject to review for reasonableness: Gahir v Alberta, (Workers' Compensation Appeals Commission), 2009 ABCA 59,448 AR 135; Buckley v Entz Estate, 2007 ABCA 7, 401 AR 231; Alberta (Workers’ Compensation Board) v Alberta (AppealsCommission for Alberta Workers’ Compensation), 2010 ABQB 368, 504 AR 79 (Wallace), Alberta (Information and PrivacyCommissioner) v Alberta Teachers' Association, 2011 SCC 61, [2011] 3 SCR 654 (ATA), Melanson v Alberta (Appeals Commissionfor Alberta Workers’ Compensation), 2011 ABQB 367. [30] With respect to the particular issue of the appropriate causation test, I note the following passage from Donald J.A.’sdissenting opinion in Kovach v British Columbia (Workers' Compensation Board) (1998), (BC CA), 108 BCAC283, 52 BCLR (3d) 98 (approved by the Supreme Court at 2000 SCC 3, [2000] 1 SCR): 28 The Board was not bound to apply common law principles of causation, such as novus actus interveniens, in deciding the matter.

Nosingle theory of causation can be said to be infallible or universally applicable. What works for a tort based system may be unsuitable fora no fault scheme. It all depends on the policy goals of the system. The Board may decide that in order to encourage workers to undergotreatment for their industrial injuries, it must cover mistakes made during treatment.

It may decide that it is unfair to deny coverage insuch circumstances or inconsistent with a broadly inclusive policy of worker protection. [31] The causation issue in this case is one of mixed fact and law in that it involves applying provisions of the WCA and Policies toa set of facts. That process may involve reference to common law notions of causation. However, as was held in Thompson Brothers(Construction) Ltd v Alberta (Appeals Commission for Alberta Workers' Compensation), 2012 ABCA 78 at para 15, 522 AR 118,issues relating to the

interpretation of policy, whether the employee was entitled to compensation, and the

interpretation of the AC'shome statute all fall within the AC’s core mandate.

Any “question of law” necessarily relates to the application of the WCA and Policies.In my view, to characterize the issue of the appropriate causation test in this context as a question of law that is “of central importance tothe legal system and outside the specialized area of expertise” (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 55,paraphrasing Toronto (City) v CUPE, 2003 SCC 63 , [2003] 3 SCR 77 at para 62) would be unduly interventionist and wouldnot be in keeping with the recent administrative law decisions emanating from the Supreme Court such as ATA. [32] Therefore, I will review the AC’s decision for reasonableness, in other words, whether there was justification, transparencyand intelligibility within the decision-making process and whether the decision falls within a range of possible, acceptable outcomeswhich are defensible in respect of the facts and law: Dunsmuir at para 47; Newfoundland and Labrador Nurses' Union vNewfoundland and Labrador (Treasury Board), [2011] 3 S.C.R. 708, 2011 SCC 62 at paras 12 to 18.

Positions of the Parties Applicants’ Position [33] Applicant’s counsel argues that the AC’s decision is unreasonable, as it erred in considering itself bound by the medical paneldecision, and abdicated its role as decision maker. Further, it confused medical causation with legal causation and failed to undertake aproper legal analysis.

[34] The Applicant submits that the physicians reviewing the Applicant and his file repeatedly asked whether there was a “directcausal link” between the 1975 accident and the Applicant’s ongoing problems. The individuals who dealt with this file framed the issuein different ways, referring variously to the requirement for a “direct”, “reasonable”, “logical”, “medically probable” or “probable”relationship.

This confusion led the decision makers to be distracted from the real issue, which Applicant’s counsel submits is whetherthe 1975 accident played any role - beyond a de minimis level - in the Applicant’s degenerative disc disease. [35] The Applicant cites, in support of this position, Shuchuk v Alberta (Workers’ Compensation Board, Appeals Commission),2007 ABCA 213, 409 AR 321 at para 41 where Ritter J.A. stated that there is nothing in the WCB Policy's entitlement criteria thatrequires anything beyond a de minimus connection between the underlying accident and the personal injury. [36] The Applicant also refers to Hillier J.’s decision in Wallace: 84 ...The interplay of s. 13.2(6)(

b) and s. 46.1(5)... requires ...the Commission not simply to accept but to interpret and reconcile theMedical Panel's findings within the context of the WCB's policies. Otherwise the Medical Panel decisions would take precedence overpolicy, since the Medical Panel do not consider them. [37] The Applicant acknowledges that the WCB may develop a policy whereby causation principles under the scheme differ fromthose applied in tort law, as held by Donald J.A. in Kovach.

However, he argues that the WCB has not done so here as there is nothing inthe Policy’s entitlement criteria requiring anything beyond a de minimus connection between the underlying accident and the personalinjury. [38] The Applicant further submits that: 1) the AC’s approach is inconsistent with the overall purpose of workers’ compensationschemes to provide generous coverage to workers for workplace injuries; 2) the AC gave no reason as to why the causation test appliedis the appropriate test; 3) there is nothing in the Policy’s entitlement criteria to suggest the applicability of that causation test when itcomes to the question of whether a condition continues to be caused by an event; and 4) the Policy is, as a whole, expansive of what isnormally considered to be causative under tort law. [39] The Applicant made further written submissions after the hearing, referring to a paper presented by Doug Mah Q.C., GeneralCounsel to the Alberta Workers’ Compensation Board, at a 2008 congress of the Association of Workers’ Compensation Boards ofCanada (page 9): ...There has always been a test of “causative significance” or “more than mere de minimis” in workers’ compensation.

The onlyrequirement is that the work must have some contribution. Occupational disease is the best example, where disease results from acombination of risk factors, only one of which is work... ... The court [in Shuchuk] stated that there must be “some connection” between the underlying accident and the injyry.

This is a far cryfrom the “substantial connection” required by Hanke... [40] The Applicant also cited cases where the AC applied the de minimis causation standard: Decision No.: 2009-928, (AB WCAC); Decision No.: 2009-722, (AB WCAC); Decision No.: 2009-515, (AB WCAC); Decision No: 2012-232, (AB WCAC); Decision No.: 2010- 823, (AB WCAC);Decision No: 2012-187, (AB WCAC); Decision No: 2011-457, (AB WCAC); Decision No.:2008-261, (AB WCAC); Decision No.: 2011-785, (AB WCAC). [41] Finally, the Applicant referred to a number of British Columbia workers’ compensation Appeal Tribunal decisions.

WCB’s Position [42] The WCB submits that the AC decision is reasonable, and that the balance of probabilities was the appropriate burden of

proof to be applied in these circumstances. When it comes to assessing causation, it is appropriate for the AC to consider the“relationship” between an accident and a condition. The WCB submits that the appropriate standard of proof and test for causation wereapplied by the decision maker in this case. [43] The WCB argues that Shuchuk is of dubious applicability and Ritter J.A.’s comments lead to confusion. Further, the decisionin Shuchuk was rendered after the AC’s decision. Athey v Leonati, (SCC), [1996] 3 SCR 458, [1996] SCJ No 102 wasthe leading case on the law on causation at the time.

The AC’s use of the phrase “did not contribute to or cause” is the same languageused by the Supreme Court in Athey.

The Supreme Court in Resurfice Corp v Hanke, 2007 SCC 7, [2007] 1 SCR 333 and Clements vClements, 2012 SCC 32, [2012] SCJ No 32 has restricted the “material contribution” test to very rare cases and has reiterated andclarified that it is an error to insist on scientific precision in evidence as a condition for finding “but for” causation. [44] The WCB submits that in this case, the AC could reasonably find that the injuries complained of (cervical spondylosis andrelated conditions) were not caused or contributed to by his 1975 accident, either through application of the “but for” test or the “materialcontribution” test.

The AC ruled that even if the worker had suffered a neck injury in 1975, it did not contribute to or cause the cervicalspondylosis (at para. 37). [45] The WCB noted that the administrative decision maker in question was writing from a non-legal perspective.

The SupremeCourt in recent decisions has emphasized that reviewing courts are not to focus on minutiae, nor to require the precision of language thatwould be expected of lawyers: Newfoundland Nurses; ATA; Nor-Man Regional Health Authority Inc v Manitoba Association ofHealth Care Professionals, 2011 SCC 59, [2011] 3 SCR 616 (Nor-Man). [46] The WCB also notes that the question of the test of causation was not argued before the AC.

Rothstein J. in ATA held at paras54 and 55 that parties cannot undermine the deference owed to a tribunal by failing to raise an issue before the tribunal and in such casesthe reviewing court in considering the reasonableness of the decision can consider reasons which could have been offered in support ofthe decision.

The Supreme Court further held in Newfoundland Nurses at para 15 that in assessing whether a decision is reasonable inlight of the outcome and the reasons, courts may, if necessary, look to the record for the purpose of assessing the reasonableness of theoutcome. [47] The WCB submits that the AC is bound by the medical findings of a medical panel pursuant to s. 46.1 of the Act. Both theWCB and the AC are bound by WCB policies and are required to apply them in their decisions and determinations: s. 13.2(6)(

b) of theWCA. [48] The WCB further submits that the AC in this case considered the entirety of the evidence before it in rendering its decision, asprescribed by the Court in Wallace at para 2. Although the AC cited the medical review panel report at length, it treated it as a medicalfinding and its analysis was not restricted to the report. The hearing panel considered the entirety of the evidence before it in rendering itsdecision and properly applied the binding medical findings of the medical panel as contemplated and required by s. 46.1(5).

It consideredthe broader context of the case in deciding the issue of causation, rather than merely relying on the medical panel report. [49] The WCB objects to the Applicants’ post-hearing written submissions. In the alternative, the WCB argues that Doug Mah’spersonal opinions are not adopted by the WCB, and subsequent AC decisions are not of assistance to the Applicant, nor do they representbinding precedents on the AC in any event.

The WCB submits that workers’ compensation decisions from British Columbia are notapplicable in Alberta. [50] Finally, the WCB submits that relief should be denied due to delay in advancing this application, and the Applicant’simpecuniosity 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.

There is no reason for the delay. (The Applicant responds that no prejudice is alleged, noting thatthe WCB process took longer than the five years which have passed since the filing of the judicial review.) AC’s Position [51] Counsel for the AC supports the position taken by the WCB and 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. Legislation/Policy [ 52 ]

Section 46.1 of the WCA provides in part: 46.1(1) Where it considers it appropriate to do so, the Board or the Appeals Commission may, in the course of evaluating a claim for compensation under this Act, refer any medical issue relative to the claim to a medical panel to be dealt with under this section.

(2) Where a difference of medical opinion arises in the course of the Board’s evaluation of a claim for compensation under this Act, the Board shall refer the matter to a medical panel to be dealt with under this section. ...

(5) The medical findings of a medical panel are binding on the Board, the Appeals Commission and all other persons with a direct interest in the claim.

(6) The medical findings of a medical panel are final and conclusive and not open to question or review in any court. [ 53 ] Policy 01-03

Part 1 provides in part: Policy: If all the evidence for and against a decision on a claim is equally balanced, the benefit of doubt goes to the injured worker...

Interpretation: 1.0 Benefit of Doubt A worker is not require to provide proof beyond any reasonable doubt in support of a claim for compensation. Adjudication is determined on the balance of probabilities, based on all the facts. If, however, there is doubt on any issue because the evidence equally supports one or more decisions, the WCB will resolve the issue in the worker’s favour. The principle of benefit of doubt, however, is not to be used: - as a substitute for lack of evidence, or - in a purely speculative sense, or - when the issue can be decided on the balance of probabilities. [ 54 ] Policy 03-01

Part 1 provides in part:

...The WCB will determine whether an injury has occurred as the result of a compensable accident, and will adjudicate appropriate compensation and services from the date of accident ... When determining its responsibility, the WCB will evaluate the relationship between the injury and the compensable accident ... [ 55 ] Policy 03-01

Part II - Application 1: Relationship to Compensable Accident provides in part: 1. Why is the relationship of injury to compensable accident important? To be compensable, an injury must be the result of an accident as defined under Policy 02-01, Arises Out of and Occurs in the Course of Employment. Therefore, when adjudicating the eligibility of a claim, the WCB looks at the nature of the injury and its relationship to the compensable accident. Often there is an obvious relationship between the nature of the injury and the compensable accident (e.g., a firefighter is burned when fighting a fire).

However, the relationship is not always obvious. In these cases, there is a need for additional information, especially medical information, to establish the relationship to the compensable accident. For example, many occupational diseases have a long latency period. The WCB's inquiries must establish whether the work-related exposure was sufficient to cause the condition (see Application 3, Occupational Disease)...

Causation in Tort Law [ 56 ] Because the common law on causation in tort is provides the vocabulary and legal backdrop discussed by the parties on this judicial review, I will briefly review the leading Supreme Court cases on the topic. Generally, the causation test applied in the common law of tort is the “ but for ” test.

In Athey at para. 15 , Major J. for the Court explained that the courts have recognized that causation may be established where the defendant's negligence “ materially contributed ” to the occurrence of the injury in circumstances where the “ but for ” test is unworkable, and that “ a contributing factor is material if it falls outside the de minimis range ” . [ 57 ] Major J. cites the House of Lords decision in Bonnington Castings Ltd v Wardlaw , [1956] 1 All ER 615 , as the authority for this proposition. In Bonnington Castings , the appellant was employed in the respondent’s foundry.

The appellant contracted pneumoconiosis by inhaling air containing minute particles of silica. The dust came from two possible sources, dust from pneumatic hammers or dust from the swing grinders. On the evidence, it was clear that more of the dust came from the pneumatic hammers than the swing grinders. However, in finding the swing grinder manufacturers liable, Lord Reid stated at 621-22: It appears to me that the source of his disease was the dust from both sources, and the real question is whether the dust from the swing grinders materially contributed to the disease.

What is a material contribution must be a question of degree. A contribution which comes within the exception de minimis non curat lex is not material, but I think that any contribution which does not fall within that exception must be material.

I do not see how there can be something too large to come within the de minimis principle by yet too small to be material. [ 58 ] Later, Lord Reid held: “it is sufficiently proved that the dust from the grinders made a substantial contribution”, and concluded that “the proportion which came from the swing grinders was not negligible” (at 622). [ 59 ] McLachlin J. for the Court in Resurfice at paras. 23 to 25 clarified that the “but for” test recognizes that compensation for negligent conduct should only be made where there is a substantial connection between the injury and the defendant's conduct.

However, the law has applied the “material contribution” test in special circumstances, which are generally where: 1) it is impossible for the plaintiff (due to factors outside the plaintiff’s control) to prove that the defendant's negligence caused the plaintiff's injury using the “but for” test; and 2) it is clear that the plaintiff's injury falls within the ambit of the risk created by the defendant's breach. In those

exceptional cases, liability may be imposed even though the “but for” test is not satisfied. [ 60 ] In Clements , McLachlin J., writing for a majority of seven judges, explained that the cases which have dispensed with the usual requirement of “but for” causation in favour of the less onerous “material contribution to risk” approach are generally cases with a number of tortfeasors where, “but for” the negligent act of one or more of the defendants, the plaintiff would not have been injured, and it cannot be shown which of several negligent defendants actually triggered the event that led to the injury.

She also held in that case that it is an error to insist on scientific reconstruction evidence as a prerequisite to finding “but for” causation. Analysis [ 61 ] It is clear that based on s. 46.1 of the WCA and the Policies cited above, the AC is required to accept the medical findings of a medical panel, and to make its determinations regarding entitlement to compensation on a balance of probabilities, where possible.

Determining causation requires consideration of the relationship between the injury and the compensable accident. [ 62 ] The Applicant argues that the AC abdicated its broader responsibility and adopted the medical findings without regard to the entirety of the evidence and relevant Policies; in particular, the AC relied on the medical findings in its approach to causation. [ 63 ] The AC did not specifically address the issue of legal causation, nor was the matter raised before it.

Rothstein J. in ATA emphasized that when the review of a decision relates to an issue that was not raised before the tribunal, the reviewing court can consider reasons which could have been offered in support of the decision. [ 64 ] In Newfoundland Nurses, Abella J. held that the reasonableness review is an organic exercise: the reasons must be read together with the outcome to determine whether the result falls within a range of possible outcomes. She held that reasons need not include all possible arguments or details, and the lack thereof does not undermine the validity of either the reasons or the result.

A reviewing court need only be able to understand why the tribunal made its decision and determine whether the conclusion is within the range of acceptable outcomes, looking if necessary, to the record to assist in the review. [ 65 ] The AC’s decision briefly recounts the background to the Applicant’s claim.

The AC identified the issue as being whether the Applicant suffered a neck injury at the time of the 1975 accident and if so, whether it resulted in the cervical spondylosis and ongoing pain in the cervical spine as asserted by the Applicant. [ 66 ] The AC noted that the Applicant disagreed with the medical panel finding, adopted by the DRB, that a probable relationship between the development of cervical spondylosis and the compensable accident had not been established. The AC further noted that the medical panel’s medical findings were binding on it.

It reviewed the evidence including the history of medical reports on file. [ 67 ] The AC went on to recite at some length the review, reasoning and conclusions of the medical panel. [ 68 ] Under “Findings and Reasons”, the AC found that the weight of evidence indicated that there was no relationship between the 1975 accident and the current spondylosis of the cervical spine.

The AC expressly relied on the following: - there was no reporting of any neck injury at the time of the 1975 accident; - the first reporting of neck symptoms being related to the 1975 accident was in 2002, following many years of complaints of neck problems and actual reports of neck injuries;

- the medical panel provided a thorough review of medical information from 1975 to date and concluded that the 1975 injury wasnot a significant factor predisposing to the development of the spondylosis, nor was the spondylosis considered to be the explanation forthe physical findings and symptoms. [69] The AC rejected the Applicant’s argument that he did not seek medical attention in 1975 for neck symptoms because he hadamnesia and did not remember the accident, reasoning that failure to remember the accident would not preclude the Applicant fromseeking required medical attention. [70] The AC concluded: [37] We are satisfied, based on the Medical Panel report, that even if the worker had suffered a neck injury in 1975, it did not contributeto or cause the cervical spondylosis. [71] In arguing that the AC should have asked whether there was anything beyond a de minimus connection between the 1975accident and the cervical degenerative disc disease, the Applicant relies heavily on Ritter J.A.’s statement in Shuchuk : 41 I agree that the WCB, as part of its policy-making function, may develop a policy whereby causation principles applicable to theprovincial workers' compensation scheme differ from those principles applied by tort law: Kovach v.

British Columbia (Workers'Compensation Board) (1999), (BC CA), 108 B.C.A.C. 283; 52 B.C.L.R. (3d) 98 (per Donald J.A., dissenting), aff'dat 2000 SCC 3, [2000] 1 S.C.R. 55. Although the decision in Kovach had the effect of expanding causation principles for the purpose ofworkers' compensation scheme, it is conceivable for the WCB to create a policy that imposes a stricter causative analysis under thelegislative scheme as compared to the common law.

However, the WCB has not done so here as there is nothing in the Policy'sentitlement criteria that requires anything beyond a de minimus connection between the underlying accident and the personal injury. [72] The Applicant also cites Hillier J. in Wallace: 87 Questions about causation raise some medical issues that are within the purview of a medical panel, but there is a distinctionbetween scientific and legal findings. This distinction exists both in common law (see Laferrier v. Lawson, (SCC),[1991] 1 S.C.R. 541 at para. 156) and in workers compensation case law.

At law, causation need not be determined with precision, butmust meet the appropriate burden of proof. Policy 01-03,

Part 1 provides that a worker need only prove their claim on a balance ofprobabilities, and if the evidence for and against a decision is equally balanced, the issue will be resolved in the worker's favour. On theother hand, scientific analysis of causation seeks a far higher degree of certainty to establish causation. [73] My review for the reasonableness of the AC’s decision must consider reasons which could have been offered in support of thedecision, and the reasons must be read together with the outcome to determine whether the result falls within a range of possibleoutcomes.

I need only be able to understand why the AC made its decision and determine whether the conclusion is within the range ofacceptable outcomes looking ,if necessary, to the record to assist in the review. [74] Despite the very thorough demonstration by Applicant’s counsel of the differing language used by various individuals andbodies to refer to applicable causation principles throughout the history of this case, it is impossible for me to conclude that the AC’sdecision was unreasonable. [75] The AC’s conclusion is clearly within the range of acceptable outcomes.

There was conflicting medical evidence in this case.The AC evaluated the relationship between the injury and the compensable accident. It accepted the medical findings of the reviewpanel.

There is no suggestion that the AC was of the view that the evidence equally supported findings of entitlement and no entitlement,let alone met the Appellant’s burden to establish entitlement on a balance of probabilities. [76] Further, even assuming that only something slightly more than a de minimis connection was required to establish causation,i.e. that it was not negligible, there is nothing to suggest that the AC was of the view that such a relationship existed between the 1975accident and the Applicant’s current symptoms.

The medical review panel’s conclusion that the 1975 injury was “not a significantfactor” (i.e. insignificant) predisposing to the development of the spondylosis does not lead to the conclusion that there was more than a

de minimis connection between the accident and the spondylosis. [ 77 ] In any event, it would be very difficult to ignore the medical review panel’s finding that spondylosis was not the reason for the Applicant’s ongoing neck symptoms.

That statement, which was binding on the AC as a medical finding, left no room for speculation by the AC as to the degree of any relationship between the 1975 accident and the ongoing neck problems. [ 78 ] To respond directly to the issues as raised by the Applicant, I find that the AC did not simply adopt the medical panel findings without undertaking its own legal analysis and determination. [ 79 ] As for the causation test, the AC cannot be faulted for using the language of Athey in concluding that the 1975 injury “did not contribute to or cause” the current problem, particularly as the decision in Shuchuk had not yet been rendered. [ 80 ] There was much argument as to the significance of Ritter J.A.’s statement in Shuchuk .

The term “ de minimis ” is used in the leading Supreme Court cases cited above specifically in relation to the material contribution test.

Ritter J.A. ’ s statement in Shuchuk arguably suggests that the lack of more specific causation language used in the WCA and Policies means that a worker may prove causation by establishing that a workplace accident was a material contributing factor (i.e. beyond de minimis ) to the worker ’ s condition. [ 81 ] In my view, Ritter J.A.’s statement in Shuchuk was simply an observation that nothing in WCB’s entitlement policies mandated a stricter approach on causation in that case than was provided in the common law.

One of the questions in Shuchuk was whether anything in the Policy's entitlement criteria suggested the applicability of the substantial diminution test in determining whether a psychological condition continued to be caused by an event, potentially in the sense that an injury resulted from an emotional reaction to the event. Ritter J.A. restated what Major J. stated in Athey which, in turn, cites the House of Lords’ decision cited above. [ 82 ] However, even if the Applicant’s

interpretation is correct to the effect that Ritter J.A. ’ s statement is a broad pronouncement on the causation test to be applied in all cases, the medical review panel ’ s binding conclusion excluded the 1975 injury as a significant factor in the development of spondylosis and, more significantly, that the spondylosis was even the reason for the Applicant ’ s ongoing neck symptoms.

As such, my consideration of the AC ’ s reasons together with the outcome leads to the conclusion that the result reached by the AC fell within a range of possible outcomes in this case. [ 83 ] I conclude that the AC’s decision was reasonable. [ 84 ] Given my conclusion on the reasonableness of the decision, it is unnecessary to address the WCB’s argument that relief should be denied due to delay. Conclusion [ 85 ] The application for judicial review is dismissed. Costs [ 86 ] If the parties cannot agree on costs, they may contact me within 30 days of the date of this decision.

Heard on the 1 st day of November, 2012. Dated at the City of Edmonton, Alberta this 21 st day of December, 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