Nostreddine Belkadi Appellant - v. -, 2013 ABQB 124

Court of Queen ’ s Bench of Alberta Citation: Belkadi v.

Alberta (Appeals Commission for Alberta Workers ’ Compensation), 2013 ABQB 124 Date: 20130225 Docket: 1103 19338 Registry: Edmonton Between: Nostreddine Belkadi Appellant - and - Appeals Commission for Alberta Workers ’ Compensation and the Workers ’ Compensation Board of Alberta Respondents Corrected judgment: A corrigendum was issued on February 27, 2013; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice A.B.

Moen _______________________________________________________ I. Introduction [ 1 ] Mr. Nostreddine Belkadi [the “ Appellant ” ] applies for judicial review of three decisions of the Appeals Commission of the Alberta Workers ’ Compensation Board [ “ the Appeals Commission ” ].

[ 2 ] In October 1, 2007, Mr. Belkadi was injured at his job in a work camp kitchen. He was given benefits for a period of time. He subsequently sought, but was denied, further ongoing benefits from the Workers ’ Compensation Board of Alberta [ “ the WCB ” ]. Mr. Belkadi appealed that decision but his appeal and subsequent reconsideration hearings were denied. [ 3 ] He now seeks judicial review of all three Appeals Commission decisions.

His application for judicial review was filed after the third decision of the Appeals Commission. [ 4 ] The first issue I must address is the limitation period for the first two Appeals Commission decisions . All parties agree that Mr. Belkadi sought judicial review of the third decision within the six month limitation period under the Rules of Court .

The second issue concerns whether the Appeals Commission ’ s third decision is reviewable by this Court and if so, whether its decision is reasonable. [ 5 ] I find that the limitation period applies to the first and second decisions of the Appeals Commission, and therefore review the third decision. With respect to the third decision, I find that the conclusion reached by the Appeals Commission is reasonable. II. Discussion [ 6 ] Mr. Belkadi was injured on October 1, 2007. He said he suffered injuries to his left hand, low back, right shoulder, and chest.

He acknowledged at the appeal that the left hand injury had resolved and he withdrew that claim. At the hearing, the Appeals Commission found that Mr. Belkadi gave evidence that he did not injure his back in the incident. Mr. Belkadi indicated that the other two injuries, that is, shoulder and chest, remained. The Appeals Commission found that Mr. Belkadi had a pre-existing shoulder injury and that the incident did not cause his shoulder injury. Mr. Belkadi also acknowledged a pre-incident chest injury, but indicated that after October 1, 2007, that chest injury was worse.

Further, he claims that the shoulder injury was worse. The Appeals Commission, however, found at the appeal that his injuries from the October incident had resolved. [ 7 ] First, I will set out a timeline for the various procedures followed by the WCB and Appeals Commission. a. Decisions of the WCB and Appeals Commission [ 8 ] On February 12, 2008, the WCB accepted Mr. Belkadi ’ s claim for his hand and chest injury, but denied a claim for a shoulder injury on the basis that it was a pre-existing condition. The WCB concluded Mr.

Belkadi was able to resume work after May 30, 2008 and discontinued his benefits at that point. Mr. Belkadi requested a review of the WCB conclusion by the Dispute Resolution and Decision Review Board [the “ DRDRB ” ], an internal WCB review panel. The DRDRB ’ s August 1, 2008 decision confirmed that the WCB had no liability to provide benefits for the alleged shoulder injury. It also terminated injury benefit coverage on January 13, 2008, which meant Mr. Belkadi had been overpaid.

What then followed were a series of hearings before and decisions by the Appeals Commission. [ 9 ] On July 6, 2009 the Appeals Commission heard an appeal of the August 1, 2008 DRDRB order. The Appeals Commission Decision No. 2009-807 of September 2, 2009 denied his appeal (the “ 2009 appeal decision ” ) and concluded that there was no shoulder injury on October 1, 2007. [ 10 ] Mr.

Belkadi requested a reconsideration hearing which was conducted on April 26, 2010, and Appeals Commission Decision No. 2010-418 was issued on May 20, 2010 (the “ 2010 reconsideration decision ” or “ first reconsideration decision ” ) rejecting his request. [ 11 ] Again, Mr. Belkadi requested another reconsideration which was heard by the Appeals Commission on June 8, 2011, and denied in Appeals Commission Decision No. 2011-538, dated June 24, 2011 (the “ 2011 reconsideration decision ” or “ second

reconsideration decision ” ). [ 12 ] Throughout, Mr. Belkadi did not appeal the decisions to the Court of Queen ’ s Bench nor seek judicial review at this court until this application. [ 13 ] I have not set out any of the particulars of those decisions, as I will first consider whether any of them or all of them is before this court on judicial review. b. Does a limitation period apply? [ 14 ] Before I consider the merits in this case, I must consider whether Mr. Belkadi is out of time for judicial review of the first two decisions of the Appeals Commission.

This discussion requires a review of the statute law concerning limitation periods for judicial review and for appeals pursuant to the Workers ’ Compensation Act. It also requires a review of the case law concerning the nature of reviews by the Appeals Commission of the WCB. Is each decision discrete? Or, can the three decisions involved here be considered by this court as one decision reviewable by judicial review? [ 15 ] When the WCB decides the eligibility of an injured worker for his or her claims, those claims are potentially subject to a series of appeals and reviews.

A claimant may first access an internal review by the WCB ’ s DRDRB. A decision of the WCB may then be appealed to the Appeals Commission: Workers ’ Compensation Act , RSA 2000, c W-15, s. 13.2.

A decision of the Appeals Commission may be appealed by an interested party on issues of law or jurisdiction to the Alberta Court of Queen ’ s Bench ( Workers ’ Compensation Act , s. 13.4). [ 16 ] Aside from the appeal to this Court provided in the Act , the inherent jurisdiction of this Court also provides a general right to judicial review of a decision of the Appeals Commission in addition to any legislated appeal to a superior court of inherent jurisdiction. [1] That is the basis on which Mr.

Belkadi is before this court. [ 17 ] The Appeals Commission may also reconsider its decision upon application by the worker, as provided in s. 13.1(7) Workers ’ Compensation Act : 13.1(7) The Appeals Commission, at its discretion on the application of a person with a direct interest in the matter, or on its own motion, may reconsider any matter that it has dealt with and may confirm, rescind or amend any decision or order previously made by it. [Emphasis added.] [ 18 ] Notably, this authority is not an appeal, but rather a “ reconsideration ” of its decision.

Although the Act has no limitation, the Appeal Rules established under s. 13.1(7) of the Act set out limitations, and further, the Appeals Commission has set limits on the number of reconsiderations and what can be considered. [2] In particular, a person who applies for reconsideration may do so only once, except when the application for reconsideration is on the basis of new evidence or evidence unavailable at the time of the appeal: Appeal Rules 5.2(1). [ 19 ] In the case before me, Mr.

Belkadi sought reconsideration of his case twice. [ 20 ] The procedure for reconsideration requires a preliminary threshold test, set by the Appeal Rules , s 5.5(3): 5.5(3) A decision may also be reconsidered if the Threshold Reconsideration Panel is satisfied that the new evidence is now available or that evidence, not available on reasonable and justifiable grounds at the hearing, is now available, and that the evidence: (

a) is relevant to the decision; and

(

b) is likely to have had an impact on the decision. [21] Therefore, a reconsideration hearing in full may only occur if the Appeals Commission completes a threshold hearing anddetermines that the Appeals Commission should hear the whole matter again. [22] In Mr. Belkadi’s case, the Appeals Commission rejected the first application for reconsideration.

Thus the firstreconsideration decision did not reconsider the decision, but rather determined if the decision should be reconsidered on the basis of newevidence (Appeal Rules 5.5(3)). [23] Similarly the Appeals Commission in its 2011 reconsideration decision rejected the second reconsideration request. [24] Mr. Belkadi argues that this court should consider a judicial review of the three decisions together because they are reallyonly one decision. [25] The Respondent WCB argues that this court may only conduct a judicial review of Mr. Belkadi’s second reconsideration application[3] and its result.

This argument is based on the strict limitation period of six months for a judicial review bythis court: Alberta Rules of Court, Alta Reg 124/2010, s 3.15(2): 3.15(2) Subject to rule 3.16, an originating application for judicial review to set aside a decision or act of a person or body must be filedand served within 6 months after the date of the decision or act, and rule 13.5 does not apply to this time period.

Alberta Rules of Court, Alta Reg 390/1968, s. 753.11: 753.11(1) Where the relief sought is an order to set aside a decision or act, the application for judicial review shall be filed and served within six months after the decision or act to which it relates.[4] [26] The Originating Application for this matter was filed and served on December 7, 2011.

Neither the AppealsCommission Decision No. 2009-807 (September 2, 2009) or Appeals Commission Decision No. 2010-418 (May 20, 2010) falls withinthe judicial review six month limitations period (Alberta Rules of Court, s 3.15(2)) or the statutory appeal period (Workers’Compensation Act, ss. 13.4(4)-13.4(5)) unless they can be considered as one decision. [27] The Applicant argues that the two earlier decisions may still be the subject of this court’s review since the AppealCommission’s appeal and two reconsideration decisions are a part of a continuing process with the same subject matter.

In that sense, thethree Appeals Commission decisions could be viewed as Mr. Belkadi advancing his remedy at the Appeals Commission, prior to movingon to judicial review. That would match the usual manner in which judicial review operates and is only available once other appealalternatives have been exhausted: Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para. 51, [2009] 1 SCR 339. [28] The difficulty in this approach is the unusual manner in which the Appeals Commission retains a jurisdiction to vary(“reconsider”) its prior decisions.

That was the subject of a detailed analysis by Veit J. in Johannesson v. Alberta (Workers’Compensation Board, Appeals Commission) (1995), (AB KB), 175 AR 34, 32 Alta LR (3d) 373. She observed thatthe ‘continuing set of appeals’ model for the Appeals Commission scheme of operations would defeat the purpose of limitations periods.Since there is no deadline for the Workers’ Compensation Act, s. 13.1(7) “reconsideration” process, no series of Appeals Commission

decisions could ever ‘ crystallize ’ and start the six month judicial review limitations period. She concludes that if all of the decisions of the Appeals Commission were considered as one “ there could never be a conclusion to litigation - there would be the prospect of never ending judicial reviews of decisions not to reconsider a decision. ” She finds that there must be closure and that the limitation period of six months must apply to each of the decisions by the Appeals Commission: paras 34 and 35. As I have set out above, there are now limitations in the Appeal Rules .

However, does this make a difference to whether we should consider each decision separately or together as one? [ 29 ] In 2001, Watson J. (as he then was) also considered this issue in a scenario that parallels Mr. Belkadi ’ s judicial review. [5] He concluded, on the basis of Justice Veit ’ s analysis in Johannesson , that both an appeal and reconsideration application before the Appeals Commission are final, rather than interim proceedings. That meant that a reconsideration decision does not ‘ revive ’ earlier decisions: paras 50, 58-59.

Subsequent Alberta Court of Queen ’ s Bench decisions have followed this approach: Dilcox v. Alberta (Workers ’ Compensation Board) , 2006 ABQB 596 at para 27 ; Nguyen v. Alberta (Alberta Workers ’ Compensation Appeals Commission) , 2008 ABQB 624 at para 30 . [ 30 ] On the basis of this reasoning, the 2009 appeal decision and the 2010 reconsideration decision (Appeals Commission Decision Nos. 2009-807 and 2010-418) are out of time. [6] . I have no jurisdiction to consider these decisions.

Only issues that were addressed in an Appeals Commission decision within the six month judicial review limitation period are potentially subject to judicial review. That leaves us with the second reconsideration decision. [ 31 ] I will now turn to a discussion concerning the standard of review, given that I must review the second reconsideration by the Appeals Commission. c.

Standard of Review [ 32 ] The decisions of tribunals are owed varying degrees of deference by the court depending on the nature of that tribunal, the expertise of the tribunal, the subject manner in question, and the nature of the issues in dispute. The Appellant, WCB, and Appeals Commission made submissions on the standard of review for a superior court of inherent jurisdiction that examines a decision of the Appeals Commission. [ 33 ] There is no dispute that the alleged errors of the Appeals Commission involve questions of mixed law and fact, or fact.

In each case the Appeals Commission was required to determine the relevance and weight of Mr. Belkadi ’ s evidence, and whether that evidence was sufficient to justify reconsideration. [ 34 ] The principles that guide the standard of review are found in Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 [ “ Dunsmuir ” ]. That decision states that a reviewing court does not need to evaluate the standard of review where that issue has been canvassed in other decisions: para. 62. The standard of review of Appeals Commission decisions is well established. The Court of Appeal in Gahir v.

Alberta (Workers ’ Compensation Appeals Commission) , 2009 ABCA 59 at para. 13 , and Thompson Brothers (Construction) Ltd. v. Alberta (Appeals Commission for Alberta Workers ’ Compensation ), 2012 ABCA 78 at para. 14 ., reviewed and summarized the established standard of review for the Appeals Commission: i. Findings of fact, credibility and mixed fact and law are reviewed for reasonableness; ii.

Interpretation of workers ’ compensation policies and the application of policies to particular fact situations are reviewed for reasonableness; iii. The

interpretation of sections of the Act lying within the expertise of the Board or the Appeals Commission are reviewed for reasonableness, as is the application of that law to particular fact situations; and iv. True jurisdictional issues are reviewed for correctness. [ 35 ] The last category, questions of true jurisdiction, does not apply in this case. Here for the second reconsideration hearing we have issues under the first category - findings of fact, credibility and mixed fact and law. Therefore, we must review the second reconsideration decision on the basis of reasonableness.

[ 36 ] “ Reasonableness ” is defined in Dunsmuir , at para. 47 : Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions . Tribunals have a margin of appreciation within the range of acceptable and rational solutions.

A court conducting a review for reasonableness inquiries 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 . [Emphasis added.] [ 37 ] That is the standard of review in the present case on which to evaluate the Appeals Commission ’ s decisions. d. Review of the second reconsideration decision of the Appeals Commission [ 38 ] Above, I have determined that this second reconsideration decision is subject to judicial review.

The standard of review is reasonableness. [ 39 ] In the second reconsideration hearing, the Appeals Commission decision addresses only whether certain allegedly new evidence provides a basis to reopen the Appeals Commissions ’ previous decision. In other words, its decision was to determine whether it should reconsider its earlier decision, not a decision on the merits of Mr. Belkadi ’ s claim. Here the new evidence filed by Mr. Belkadi was documentation: 1. a letter from Mr.

Belkadi ’ s employer to the Human Rights Commission; and 2. medical reports dated February 16, 2010, October 1, 2010, October 20, 2010, and May 2, 2011. [ 40 ] The question before the Appeals Commission was whether there was new or unavailable relevant evidence under Rule 5.2(1). [ 41 ] Therefore, in this case the second reconsideration involved a preliminary threshold test, set by the Appeal Rules , s. 5.5(3) (see above). [ 42 ] The test set out in Rule 5.5(3) is similar to the test the court uses when considering whether fresh evidence ought to be considered on an appeal.

Until the panel has tested the new evidence under Rule 5.5(3), it cannot reconsider its appeal decision. [ 43 ] The Appeals Commission found that the 2010-2011 medical reports were “ new evidence ” . They found that the reports concerned Mr. Belkadi ’ s current medical condition. However, the Appeals Commission found that those reports were not relevant to his medical status on October 1, 2007, the date of the accident. [ 44 ] One letter (February 16, 2010) was from a physician who criticized the manner in which the Appeals Commission weighed the evidence of (among other things) the emergency report.

The Appeals Commission considered the original appeal and found that it had considered this evidence and Mr. Belkadi ’ s argument at the time. Mr. Belkadi was putting forth the same argument at the second reconsideration as at the initial appeal. The Appeals Commission on the second reconsideration found that weighing evidence is the prerogative of the Appeals Commission and is not reviewable for reconsideration. Therefore, that did not displace the basis for the conclusion in the July 6, 2009 Appeals Commission decision. [ 45 ] The physician criticized the Panel for not properly acknowledging Mr.

Belkadi ’ s language barrier. The Panel pointed out that they had considered that at the original hearing.

[ 46 ] The Appeals Commission points out in its second reconsideration decision that an application for reconsideration is not an opportunity to reargue the merits and pointed out that it had considered – in the appeal hearing - those things for which it was being criticized. [ 47 ] The Appeals Commission in the second reconsideration found that Human Rights Commission document was directed to a different forum and was irrelevant to the WCB decision. [ 48 ] The Appeals Commission denied the request for reconsideration. [ 49 ] The standard of review for this decision is reasonableness as described in more detail above.

The question in this case is whether this decision on a second reconsideration is reasonable. [ 50 ] The second reconsideration is very narrowly prescribed by the Appeal Rules . The Appeals Commission was obliged to first decide if the evidence was new and then if it was relevant and likely to have an impact on its decision. If the evidence was new, then the Panel had to determine if the evidence was relevant. If new and not relevant, that ended the matter. If relevant, then the Panel had to determine if that new, relevant evidence would have impacted its original decision.

If the evidence did all three, then the Panel would reconsider its decision. [ 51 ] I find that the Panel properly approached its task of determining whether the threshold had been met for reconsideration. Therefore, I must review the individual decisions concerning the new evidence to determine if the decisions made were reasonable. [ 52 ] First, I consider the decision with respect to the correspondence about Human Rights. In this case was it reasonable to determine that the Human Rights complaint evidence was not relevant? I find that this decision was reasonable.

The complaint did not bear on a decision of the Appeals Commission. Therefore, the Appeals Commission was reasonable in determining that the evidence was not relevant. [ 53 ] Second, I consider the decision of the Appeals Commission that the medical evidence was new but not relevant to the issues. [ 54 ] The first medical letter dated February 16, 2010 was from a physician, Dr. Huoc Hai Le, who communicated with Mr. Belkadi in French, Mr. Belkadi ’ s language. That doctor does not raise any new medical evidence. He argues that Mr. Belkadi may have had an unfair hearing because the Panel had found that Mr.

Belkadi did not have a shoulder injury in the October 2007 accident, notwithstanding that the picture of a man ’ s body had the right shoulder circled even though the description of the injury that Mr. Belkadi gave was of a “ back ” injury. This doctor explained that Mr. Belkadi had used the English “ back ” to describe his shoulder injury. [ 55 ] The Appeals Commission said in its decision that it had considered, in the original hearing, the discrepancy between the picture and the verbal report.

The Appeals Commission referred to paragraph 24.1 in the original appeal decision. [ 56 ] The second medical letter, dated October 1, 2010, was from LifeMark Health Institute concerning Mr. Belkadi ’ s right shoulder. As this had already been decided by the Appeals Commission in the appeal and in the first reconsideration decision, the Appeals Commission declined to hear this matter again. [ 57 ] The third medical letter, dated October 20, 2010, is from LifeMark, again suggesting to Mr.

Belkadi ’ s doctor that the shoulder continues to be painful and inflamed and results from the October 2007 accident. [ 58 ] There is additional correspondence in the Record dated October 27, 2010, that refers to the shoulder injury as a result of the

October 1, 2007 accident, and which suggests that the problem with the WCB is that they have not considered the chart filled in by Mr. Belkadi showing a shoulder injury and calling the injury “ back ” . [ 59 ] Finally, there is the May 2, 2011 letter from Mr. Belkadi ’ s doctor, Dr. Le, which is a review of the case and submissions on Mr. Belkadi ’ s behalf concerning his language barrier and miscommunication about the shoulder. [ 60 ] The Appeals Commission found that the letters were new evidence because they were dated after the first reconsideration hearing.

The Appeals Commission also found that the letters contained information about Mr. Belkadi ’ s medical status in 2010, but that those letters were irrelevant to his status on October 1, 2007. In the appeal, the Appeals Commission had found that the shoulder problem was not attributable to the October 2007 accident.

Therefore, an update to the medical condition of the shoulder would not likely impact on the original decision. [ 61 ] Further, where the physician challenged the findings of the Appeals Commission, the Commission said that it had reviewed the evidence about the shoulder and provided adequate reasons for its finding that the shoulder injury was not attributable to the accident. [ 62 ] Their decision in this regard is reasonable, in that the decision has addressed the issue and provides reasons which fall within a range of possible answers. [ 63 ] I point out that most of the submissions of Mr.

Belkadi concerned alleged errors in the appeal decision and in the first reconsideration. Given that I have found above that those alleged errors cannot be reviewed because Mr. Belkadi made his application for judicial review out of time, I have not considered most of the submissions. III. Conclusion [ 64 ] I dismiss the application for judicial review. [ 65 ] I wish to add one comment. The appeal and reconsideration process of the Appeals Commission could well be confusing for the users of the WCB.

A person using the WCB could easily believe that they were properly following procedure when they used the reconsideration process of the WCB. I would hope that the WCB makes it abundantly clear to the users that they must file an application for judicial review or appeal from each of the decisions of the Appeals Commission within six months of the decision of the Appeals Commission and that failure to do so will result in their application being dismissed by the Court of Queen ’ s Bench.

Further, that even if they are filing for reconsideration, they must submit their application for review by Queen ’ s Bench within the six month limitation period of each hearing. IV. Costs [ 66 ] The parties may return to this Court within 30 days if they are unable to agree on costs. Heard on the 25 th day of September, 2012. Dated at the City of Edmonton, Alberta this 25 th day of February, 2013.

A.B. Moen J.C.Q.B.A. Appearances: Mr. C. Villeneuve for Mr. Belkadi Ms. S. Hermiston for the Appeals Commission Mr. J. Bodnar for the Workers’ Compensation Board _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Madam Justice A.B. Moen _______________________________________________________ The heard date was corrected to read September 25, 2012. [1] Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), (SCC), [1997] 2 SCR 890, 149 DLR (4th) 577;Dunsmuir v.

New Brunswick, 2008 SCC 9 at para. 31, [2008] 1 SCR 190. [2] In this case there is no argument that Mr. Belkadi did not meet the limitation requirements under the Appeal Rules. [3] Appeals Commission Decision No. 2011-538 of June 2011. [4] I have set out the old Rule and the new Rule because of the timing of this case. However, there is no issue concerning any differencebetween those Rules being advanced by either party.

[5] Molineaux v. Alberta (Workers' Compensation Board, Appeals Commission) 2001 ABQB 932 [6] I note that there was much argument about Mr. Belkadi circling his shoulder on the medical chart when he was first seen at emergency. When he was interviewed he referred to his back. His counsel argued that it was clear from the diagram that he was referring to his shoulder and that his difficulty with language caused him to use the wrong word. Unfortunately, all of this pertains to the decision by the DRDRB and the Appeals Commission in the appeal and that decision is not before this court because it is excluded by the limitation period.