Taylor v Alberta (Workers’ Compensation Board), 2016 ABQB 123

Court of Queen ’ s Bench of Alberta Citation: Taylor v Alberta (Workers’ Compensation Board), 2016 ABQB 123 Date: 20160301 Docket: 1003 10565 Registry: Edmonton Between: Ray Taylor Applicant - and - N.J. Witt, R. Morgan and N. Cherry as panel members of The Medical Panel and The Workers’ Compensation Board Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice S.D.

Hillier _______________________________________________________ I Introduction [ 1 ] In December 1999, Ray Taylor (the Applicant) filed a complaint with the Workers’ Compensation Board (WCB). Since that time, this matter has been the subject of various administrative decisions including two Workers’ Compensation medical panels, seven years apart, both of which were unable to identify a diagnosis or an occupational exposure that would explain the Applicant’s symptoms. In this application, the Applicant seeks judicial review of the second medical panel (Second Panel) decision, issued in 2010.

II Background [ 2 ] After nearly four years of employment, the Applicant complained to the WCB that manganese toxicity had affected his health and ability to work as a machinist/lathe operator. Among various other health concerns, his constellation of complaints included central vision impairment and serious tremors. He attributed these to a toxic work site with poor ventilation dating back to 1996. [ 3 ] On July 14, 2000, the WCB accepted the Applicant’s claim. [ 4 ] On August 2, 2001, following further investigations of the Applicant’s complaints, the WCB denied the claim on the basis

that his physical and clinical findings were not consistent with manganese toxicity, and that there was no medical relationship between his symptoms and the workplace. [ 5 ] Due to a difference in medical opinion, the WCB subsequently directed that a first medical panel be convened. The Applicant was presented with a roster of nine specialists, three each in relevant specialties. As contemplated by s. 3(3) of the Medical Panels Regulation , Alta Reg 290/2006, he was given an opportunity to select a member of the panel, providing his top three choices.

Although the Applicant retained legal counsel prior to the first medical panel hearing, he declined to select a specialist. He was also informed of his ability to ask a physician of his choice to act as his MD advocate in the process. The medical panel attempted to

schedule a meeting with the Applicant to give him the opportunity to present his case, but he declined. He also refused to undergo tests requested by the panel: a visual field, a colour visual field and an electroencephalogram study. [ 6 ] The first medical panel conducted its hearing on March 14, 2003 and reported on March 20, 2003, concluding that the evidence was not consistent with manganese poisoning.

The panel could not identify a single occupational exposure or diagnosis that would explain the Applicant’s neurological signs and symptoms, but encouraged the Applicant to seek further medical examinations with a view to obtaining an appropriate clinical diagnosis. [ 7 ] The WCB maintained its denial of the Applicant’s claim based on the first medical panel’s findings. [ 8 ] In 2007, the Applicant’s counsel submitted new medical material to the WCB, requesting reconsideration of the claim.

The WCB’s review body submitted this new material to the Second Panel, comprised of two of the physicians who were on the first panel. The third member was a replacement for an original member who had passed away in the interim. The medical panel commissioner had given the Applicant an opportunity to select the new third member from a revised roster, but his counsel had declined. [ 9 ] The Applicant attended with his legal counsel when the Second Panel convened on February 5, 2010.

The Second Panel again concluded that the evidence was not consistent with manganese poisoning, and that it could not identify a single diagnosis or occupational exposure that would explain the Applicant’s neurological signs and symptoms. [ 10 ] On June 22, 2010, the Applicant filed this application for judicial review of the Second Panel report, alleging that the Second Panel failed to determine a diagnosis, failed to rely on relevant evidence, relied on irrelevant or improper evidence, and two of the board members within the Second Panel were also part of the first medical panel.

A record of proceedings was filed on March 21, 2011, however this matter has remained in abeyance as the parties have pursued dispute resolution and appeal procedures. [ 11 ] On May 18, 2011, the claims adjudicator denied the Applicant’s claim based on the 2003 and 2010 medical panel reports. [ 12 ] On June 15, 2011, the WCB review body upheld that decision. [ 13 ] On June 14, 2012, the Applicant appealed the WCB review body’s decision. [ 14 ] On May 2, 2013, the Appeals Commission upheld the WCB review body’s decision. [ 15 ] Applicant’s counsel subsequently obtained a toxicology report in the form of a two page letter from Dr.

M. Aschner, an expert in molecular pharmacology, dated June 28, 2014 (Aschner Letter). Based on the Applicant’s serum manganese level on March 22, 2000, Dr. Aschner estimated the manganese levels in the Applicant’s serum on December 9, 1999 to have been ~22.9988 µg 1 /L, and opined that this would have been considerably higher than reported normal values which he stated are in the range of ~0.5 µg 1 /L, and in all likelihood would cause manganese poisoning. He noted that exposure to manganese has been reported to affect colour and contrast vision, citing a scholarly

article in support. [ 16 ] On August 27, 2014, Applicant’s counsel submitted the Aschner Letter to the Appeals Commission and requested that it reconsider its May 2, 2013 decision. [ 17 ] The Appeals Commission panel forwarded a copy of the Applicant’s request to the medical panel office.

The medical panel office replied on February 9, 2015, taking the position that the Aschner Letter was not “new evidence”, but rather was an additional opinion on information that was already considered, noting that the Applicant could have provided additional expertise at the earlier hearings. [ 18 ] The Appeals Commission conducted a reconsideration threshold documentary hearing on April 13, 2015 to determine whether the report constituted new evidence justifying a new hearing.

It denied the reconsideration request in a decision dated April 22, 2015, on the basis that the issue addressed in the Aschner Letter was the same one addressed by the Second Panel, and the Applicant could have submitted a toxicology report at the time of the second hearing.

It also stated that the Aschner Letter would have been unlikely to have had an impact on its decision because the Appeals Commission was bound by the Second Panel’s findings that the evidence was not consistent with manganese poisoning, and the panel could not identify an occupational exposure that would explain the Applicant’s neurological signs and symptoms. [ 19 ] The Applicant filed an application for judicial review of the Appeals Commission’s decision of April 22, 2015. [ 20 ] On October 16, 2015, the Applicant filed an application for leave to admit new evidence in this judicial review.

His affidavit in support, sworn on October 2, 2015, referred to the Aschner Letter. [ 21 ] The Aschner Letter was provided to the medical panel commissioner who in turn referred it to the Second Panel, requesting that it respond to questions posed by the lawyer for the medical panel commission. In a letter dated December 16, 2015, the Second Panel concluded that the Aschner Letter did not change their findings.

While acknowledging that the Applicant’s manganese concentration would be elevated to above the high end of normal, the Second Panel noted that it had placed more weight on the assessment of the occupational hygiene measurements, which were well below the levels at which manganism had been reported in the medical literature. In any event, all of the experts who had reviewed the Applicant clinically, as well as a review of the literature, did not

support that manganism was a cause of his problem. [ 22 ] Around January 5, 2016, the Applicant received a copy of the December 16, 2015 letter of the members of the Second Panel. [ 23 ] The judicial review of the Appeals Commission’s threshold reconsideration decision of April 22, 2015 is scheduled to be heard in special chambers on April 1, 2016. III Medical Panels [ 24 ] Independent medical panels were introduced to the workers’ compensation assessment process in Alberta in 2002. [ 25 ]

Section 46.1 of the Workers’ Compensation Act , RSA 2000, c W-15 ( Act ) provides: 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.

(3) A person is not eligible to be a member of a medical panel unless the person (

a) is a regulated member of the College of Physicians and Surgeons of Alberta who holds a practice permit issued under the Health Professions Act, or (

b) has a similar status under similar legislation in a jurisdiction outside Alberta. ...

(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. [ 26 ]

Section 2 of the Medical Panels Regulation provides: 2 For the purposes of

section 46.1(2) of the Act , a difference of medical opinion arises if, in the Board’s opinion, (

a) the medical issue is substantial and material to the claim, (

b) the physicians who provided the medical opinions are in possession of the same facts in respect of the medical issue, (

c) the physicians have reasonably similar qualifications or expertise in respect of the medical issue, and (

d) the medical opinions relate to the same time frame, and the Board is not able to resolve the outstanding medical issue through consultation with the physicians. [ 27 ] The Regulation governs the structure and role of medical panels. Three physicians, selected from a panel approved by the Alberta College of Physicians and Surgeons, convene to review the full medical records, relevant research material and, as in this case, to interview and examine the worker as part of the assessment process.

Section 7 of the Regulation requires the panel to prepare a report of its medical findings, including reasons to support their findings. [ 28 ] Pursuant to s-s. 46.1(5) of the Act , a medical panel’s findings are binding on the Workers’ Compensation Board (WCB), the Appeals Commission and all other persons with a direct interest in the claim.

Subsection 46.1(6) provides that the medical findings of a medical panel are final and conclusive and not open to question or review in any court. [ 29 ] There are no reported cases in Alberta in which an applicant has attempted to directly challenge a medical panel’s findings on a judicial review.

IV Preliminary Application to Include New Evidence [ 30 ] The Applicant seeks to include new evidence in the materials for this Court’s review: a. the Aschner Letter, dated June 28, 2014; b. the WCB Appeals Commission Decision dated May 2, 2013 (Appeals Commission Decision); c. the letter of the Second Panel dated December 16, 2015 (MP Response).

[31] I heard submissions on this request from counsel for the Applicant, the WCB and the Second Panel. For expediency, I invitedcounsel to refer to the new evidence during argument on the understanding that the Court would discount any arguments dependingexclusively on any item which the Court determines should not be considered on the judicial review. I undertook to consider thesubmissions and have included my rulings on admissibility as part of these written reasons. A Parties’ Positions [32] The Applicant applies to have the fresh evidence admitted under Rule 3.22(

d) of the Alberta Rules of Court, which confirmsthe Court’s power to consider evidence aside from the Record. The Applicant argues that each document ought to be included as a matterof fairness, in support of alleged breaches of natural justice as well as the allegation of apprehended bias. Further, despite its preparationmore than four years after the second hearing, the Aschner Letter should be permitted as it is relevant and important. The AppealsDecision points out errors that were corrected on appeal, which errors should also be factored into this judicial review.

The December 16,2015 response of the Second Panel illustrates their refusal to fairly consider evidence supporting the Applicant’s position. [33] The Applicant argues that the test for bias is whether an informed person viewing the matter realistically and practically,having thought the matter through, would conclude there is a likelihood of bias. The Applicant asserts that two of the three experts onthe Second Panel were on the original panel. Both panels failed to determine what diagnosis best explains the Applicant’s clinicalpresentation.

The Applicant argues that this gives rise to a reasonable perception of bias which may be supported by each document inthe new evidence. [34] The Respondent WCB argues that judicial review does not measure the reasonableness of a decision based on evidence thatwas not adduced or otherwise available at the time of a hearing.

Although evidence can be led to support grounds such as natural justicebreaches or apprehended bias, a party must satisfy the court as to why, with the exercise of due diligence, such evidence and objectioncould not have been raised at the time of the hearing upon which judicial review is now sought. There is no excuse for the four yeardelay to obtain the Aschner Letter, the Appeals Decision is itself set for judicial review and the MP Response simply expressed why theAschner Letter on manganese toxicity cannot account for the complexity of the serious vision and movement disorders which constituteMr.

Taylor’s syndrome. [35] The Respondents do not take issue with the objective test for assessing an apprehension of bias. However, they note that theApplicant did not allege bias at the 2010 hearing. Even if there is no waiver, the Respondents argue that the new evidence is unnecessarybecause the apprehension ought to be measured as at the time of the hearing. [36] In addition, assuming that the same test applies as for fresh evidence on appeal, the Respondents argue that the Aschner Letterin particular fails to meet the criteria for admission.

Specifically, the Applicant cannot establish that he could not have secured theevidence prior to earlier hearings, or that the evidence is conclusive or compelling. [37] Counsel for the Second Panel clarified that the medical panel commissioner sent the Aschner Letter to the Second Panelwithout consultation or input from counsel for the Applicant or the WCB. That was in response to the Applicant including the letter inthe October 2015 Affidavit which revitalized the judicial review five years after the application was filed.

B Law [38] Generally, the only evidence before the Court on judicial review is the record of the proceedings before the Tribunal. SlatterJ. (as he then was) in Alberta Liquor Store Assn v Alberta (Gaming and Liquor Commission), 2006 ABQB 904 at paras 40 to 43, 406AR 104 cited with approval S Blake, Administrative Law in Canada, 4th ed (Markham, Ont: LexisNexis Butterworths, 2006) at 198: Only material that was considered by the tribunal in coming to its decision is relevant on judicial review. It is not the role of the court todecide the matter anew. The court simply conducts a review of the tribunal decision.

For this reason, the only evidence that is admissiblebefore the court is the record that was before the tribunal. Evidence that was not before the tribunal is not admissible without leave of thecourt. If the issue to be decided on the application involves a question of law, or concerns the tribunal's statutory authority, the court willrefuse leave to file additional evidence. Evidence challenging the wisdom of the decision is not admissible. The tribunal's findings of factmay not be challenged with evidence that was not put before the tribunal.

Fresh evidence, discovered since the tribunal made itsdecision, is not admissible on judicial review. [39] In White v Alberta (Workers' Compensation Board Appeals Commission), 2006 ABQB 359 at para 34, 57 Alta LR (4th)282, Slatter J. opined that fresh evidence on a judicial review would likely be subjected to the same test as fresh evidence on appeal.However, he later concluded in Alberta Liquor Store at para 44 that the test for fresh evidence on appeal does not apply on judicialreview. [40] Nevertheless, as Rule 3.22(

d) clearly does contemplate “other evidence”, and does not expressly restrict that term, in my viewit is helpful to consider the factors relevant to fresh evidence on appeal as set out in R v Palmer (1979), (SCC), [1980] 1SCR 759, 30 NR 181 and other cases as summarized in CKS v OSS, 2014 ABCA 416 at para 10, [2014] AJ No 1355. These factorsreflect policy concerns underlying the general rule against fresh evidence on appeal or review.

In the context of an appeal, new evidenceshould generally not be admitted if it: (1) would not have been admissible at trial; (2) could have been adduced at trial by using due diligence; (3) is not material, cogent and of compelling significance; (4) is not relevant to a decisive or potentially decisive issue in the trial;

(5) is not reasonably capable of belief; (6) could not reasonably be expected to have affected the outcome, if believed. [41] Despite the general rule against new evidence on a judicial review, the court will allow new evidence to be included inexceptional circumstances, such as where breaches of natural justice have been alleged: Cantor v Edmonton (City), 2009 ABQB 70, 58MPLR (4th) 57, White at para 35, and Alberta Liquor Store at paras 40-42.

For example, where bias is alleged, supplementary evidencein support of that allegation is typically admissible: Woods v Wetaskiwin (County No 10), 2001 ABQB 681 at para 45, 290 AR 37, aff’d2003 ABCA 67, 320 AR 286. In Dodd v Alberta (Registrar of Motor Vehicle Services), 2010 ABQB 184, 500 AR 194, Ross J. cited lawto the effect that possible relevance on the issue of bias may justify permission to introduce new evidence.

C Analysis [42] As to the allegations of breach of natural justice, I do not see in anything in the proposed material which would arguablysupport the Applicant’s position that the Second Panel process was unfair, much less assist in demonstrating that the Second Panel lostjurisdiction as the Applicant argues, relying on Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 at para 32, [2007] 1SCR 350 and Re Ontario Labour Relations Board, (SCC), [1953] 2 SCR 18 at 18-22. [43] The 2010 decision of the Second Panel was a reconsideration by the experts, as contemplated in the 2003 medical panel report[Return Vol 1, Tab D, p.15]: The panel encourages Mr.

Taylor to seek further medical examination in the hope that clinical features now and in the future might allowan appropriate clinical diagnosis to be made. [44] In assessing the concerns about fairness and natural justice, I note that the Second Panel was provided with all earlierdocuments from the first hearing as well as additional material (Vol 1+2, pp. 1-727; Vol 3, pp. 1-273).

Legal counsel for the Applicantfiled an extensive brief with further documents (Vol 4+5, pp.1-370) and made oral submissions at the Second hearing. [45] Clearly the parties were alive to the matter of manganese toxicity even prior to the first panel decision in 2004.

Part III (pp. 3-12) of the Applicant’s Brief filed for the Second Panel hearing listed and summarized scientific evidence regarding Mr. Taylor’sexposure. That Brief erroneously referred to a 20 day half-life for manganese (para 38), but the Second Panel corrected it to 39 days,which the Aschner Letter confirms. [46] Further, there is nothing in the evidence or argument which would explain why Dr.

Aschner’s scientific opinion, as distinctfrom a medical opinion, could not have been obtained between the first and Second Panel hearings. [47] The Applicant’s submissions at the Second Panel hearing were not restricted to new evidence. Counsel in the Brief madeextensive reference to evidence prior to March 2003 (Part V, pp 2026) as well as a critique of previous evidence not evaluated by theWCB panel (Part VII, pp. 33-36). [48] The Second Panel issued a 10 page written report that was available in the context of the review under the statutory appealprocess.

Without yet addressing the merits of the grounds for review, from the records of this reconsideration hearing, nothing even hintsat a failure to know the case to be met, a restricted opportunity to respond, or any other procedural problem. Certainly, none of the newevidence supports in any way that the proceedings violated any rules of natural justice, including the right to be heard, or were otherwiseunfair. None of the proposed documents ought to be included based on allegations of unfairness. 1 Aschner Letter [49] The Aschner Letter purports to address points related to manganese toxicity. Dr.

Aschner is an expert in molecularpharmacology with a lengthy curriculum vitae. Dr. Aschner does not critique the three areas of medical specialization of the SecondPanel members. He simply explains, relatively succinctly, that the level of serum manganese in Mr. Taylor measured 109 days after hislast exposure was extremely high. As such, it would be scientifically reasonable to conclude that these concentrations would have playeda causal role in his illness. [50] I find that the Aschner Letter could have been obtained for the purpose of the Second Medical Panel in 2007.

The Applicanthas provided no explanation as to why he obtained the letter four years post-hearing. In his October 2, 2015 affidavit, the Applicantdeposed that the Aschner Letter was not reasonably available at the time of the hearing because he was relying on the Second Panel’sexpertise and could not have anticipated that they would err in determining the correct acceptable range of toxicity.

I note, however, thatthe Applicant disagreed with the 2003 conclusion of substantially the same panel, and amassed nearly 400 pages of material for the newhearing. [51] Even assuming that possible relevance is the threshold, I find nothing in the Aschner Letter itself that would support aninference of breach of natural justice or bias on the part of the Second Panel. [52] The Applicant submitted the Aschner Letter to the Appeals Commission which then conducted a reconsideration thresholdhearing to determine whether the report constituted new evidence to justify a new hearing.

That request was denied in a decisionrendered April 22, 2015 on the basis that the letter identifies the same issue as was considered by the Second Panel in 2010, and therewas no reasonable justification for the failure to obtain and present this evidence for the 2013 Appeals Commission. I am not awarewhether the scope of the judicial review of the Appeals Commission includes this point, but access to that reconsideration process speaksagainst allegations of procedural unfairness. 2 Appeals Commission Decision

[53] The Applicant argues that the variant findings of the Appeals Commission on certain topics should inform the Court as to theunreliability, if not the bias, of the Second Panel. I find no support whatever for that characterization. [54] I note that the statutory scheme contemplates that medical panel findings will be considered by Appeals Commissions;treatment on appeal is intended to correct matters within the scope of appeal.

The three year gap between the work and findings of theSecond Panel and the Appeals Commissions decision removes any reasonable temporal link between them as would assist the Court’sreview of the Second Panel’s findings. In any event, the Appeals Commission decision is itself subject to a pending judicial review. [55] I conclude that there is nothing to justify inclusion of the 2013 decision as part of judicial review of the Second Panel findingsin 2010. [56] The Aschner Letter was filed in support of the Appeals Commission reconsideration application on August 27, 2014.

Thatrequest was denied in a decision rendered on April 22, 2015 which quoted at length from a February 9, 2015 letter from the medicalpanel office, the Commissioner responsible to convene panels under the Act. The Commissioner, purporting to consider and compare theprocesses of senior courts of competent jurisdiction, opined that the Aschner Letter was not new evidence but rather an additionalopinion on information that was considered by the Second Panel at the hearing, the Applicant could have provided additional expertiseat both hearings, and the delay was unreasonable.

The Applicant the filed an application for judicial review of the Appeals Commission’sdecision of April 22, 2015, which is pending. [57] Apparently, it was not until the Applicant filed a second affidavit on October 2, 2015 in this matter that the Respondentslearned that he was requesting that the Aschner Letter be included in the judicial review of the Second Panel’s decision. None of theparties requested a response from the Second Panel on the effect of the Aschner Letter, nor were they consulted.

However, the AschnerLetter was provided by the medical panel commission to the members of the Second Panel requesting a response to questions posed bythe lawyer for the medical panel commission. Around January 5, 2016, the Applicant received the December 16, 2015 letter of themembers of the Second Panel commenting on the Aschner Letter. That recent consultation has no possible relevance to the allegation ofbias of the Second Panel. 3 MP Response [58] However, the context surrounding the MP Response to the Aschner Letter raises issues as to process in 2015/16.

While itcame over 5½ years after the Second Panel Report and did not in the least inform the application for judicial review as filed, I find that itis possibly relevant to the Applicant’s apprehension of bias argument. [59] Accordingly, the Aschner Letter and the MP Response are admitted as part of the court’s consideration solely on the issue ofbias.

V Standard of Review [60] The standard of review in relation to allegations of breach of natural justice is whether the proceedings met the level offairness required by law: Alberta (Securities Commission) v Workum, 2010 ABCA 405 at para 28, 493 AR 1 and cases cited therein,Synergy Group

(2000) Inc v Alberta (Securities Commission), 2011 ABCA 194 at para 25, 510 AR 172. [61] With respect to bias, the standard of review is whether a fully informed observer, considering the context of the entireproceedings, would reasonably conclude that the decision maker was not impartial: R v Switzer, 2014 ABCA 129 at para 4, 572 AR 311,Nammo v Canada, 2015 ABCA 389 at para 9, [2015] AJ No 1353. [62] There was some suggestion that the arguments raised questions that extended beyond the task of a medical panel. I amunpersuaded.

The members of the Second Panel were tasked to make medical findings upon reconsideration of a significant volume andvariety of materials. There is no suggestion that they did anything other than what was contemplated under the Act. The Supreme Courthas repeatedly cautioned courts against branding issues as jurisdictional, when they are actually preliminary or collateral questions, orcategorical or nominate errors: Dr Q v College of Physicians and Surgeons of British Columbia, 2003 SCC 19 at para 22, [2003] 1SCR 226; Dunsmuir v New Brunswick, 2008 SCC 9 at para 35 [2008] 1 SCR 190.

True jurisdictional questions arise where the tribunalmust explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter, or when

interpretationof that statute raises a broad question of the tribunal’s authority: Dunsmuir at para 59, Nolan v Kerry (Canada) Inc, 2009 SCC 39,[2009] 2 SCR 678. [63] In terms of review of the merits of a body’s decision, the Supreme Court in Dunsmuir set out a two-step process fordetermining the standard of review to be applied: 62 …First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to beaccorded with regard to a particular category of question.

Second, where the first inquiry proves unfruitful, courts must proceed to ananalysis of the factors making it possible to identify the proper standard of review. [64] As noted previously, this is the first reported case in Alberta of a request for a court to directly review the process and resultof a medical panel.

Therefore, this Court must analyze the factors outlined in Pushpanathan v Canada (Minister of Citizenship andImmigration), (SCC), [1998] 1 SCR 982, [1998] SCJ No 46: the presence of a privative clause, relative expertise, thepurpose of the act and the provision, and the nature of the question. [65] There is no doubt that the privative language of s-s. 46.1(5) and (6) captures a strong legislative intention for finality.

Thissupports deference both as to reasoning and the ability of medical panels to reach a definitive conclusion. [66] Deference is appropriate when the tribunal is more expert than the court and the question under consideration falls within the

ambit of this expertise: Alberta (Workers' Compensation Board) v Appeals Commission, 2005 ABCA 276 at para 36, 371 AR 318(Davick). Medical panels under the Act are rostered and selected to make findings based on their expertise; it behooves the court torespect their efforts in assessing the file, including symptoms, treatment and prognosis along with a significant body of availableliterature. The Second Panel was composed of an ophthalmologist, a neurologist and a specialist in occupational medicine. Nothing inthe materials or argument even hints that these specializations were inappropriate to the file.

It is beyond dispute that the expertise inassessing divergent medical evidence intersecting various fields and produced over the course of more than a decade speaks loudly ofthe need for deference. [67] The actual role assigned to medical panels is to assess and resolve the conflicting medical opinions of physicians, based on amulti-disciplinary consensus model. The Applicant takes no issue with the importance of assigning this responsibility to independentspecialists. It is difficult to imagine another model which would deal effectively with these sorts of issues.

Their involvement is part of asystem of compensation independent of court involvement: Davick at para 74. As such, the court should be very cautious not toundermine this objective without very strong and compelling justification. [68] The medical findings which the Applicant asks the Court to review are fact findings. While those fact findings may havesubsequently been incorporated into or relied on by other decision makers to apply the law, the Second Panel was not asked to, nor did itpurport to, apply any legal or policy rules or concepts in accomplishing its task.

Fact findings are entitled to deference. [69] I conclude that the Second Panel is entitled to significant deference and that the appropriate standard of review must bereasonableness. VI Discretion [70] The Court may refuse relief on judicial review when an adequate alternate remedy is available: Harelkin v University ofRegina, (SCC), [1979] 2 SCR 561, 26 NR 364, Pridgen v University of Calgary, 2012 ABCA 139 at para 167, 524 AR251. [71] The Second Panel Report was one component of a series of decisions under the Act.

As a result of new material provided bythe Applicant, the WCB’s review body decided to submit the matter to the Second Panel for a report. Based on that report and the firstmedical panel report, the claims adjudicator denied the Applicant’s claim. The denial was upheld by the WCB review body, and theAppeals Commission upheld that decision.

The Appeals Commission’s decision is now the subject of a separate judicial reviewapplication in which the Applicant hopes to rely on the Aschner Letter. [72] In the pending judicial review of the Appeals Commission decision, the Applicant may argue that the information in theAschner Letter would have had a material bearing on the analyses of his claim undertaken by the WCB and the Appeals Commission.However, through all of the procedural steps taken to date by the Applicant, the medical findings of the Second Panel have beenstatutorily binding on those bodies, and therefore not the subject of review by them.

While the Applicant’s ultimate objective is the samein this matter and the pending judicial review, I am satisfied that the pending review of the Appeals Commission does not provide thepossibility of an adequate alternative remedy in relation to the limited issue of the Second Panel’s medical findings. VIII Issues [73] The parties’ arguments raise three issues: A. Were the Second Panel’s medical findings reasonable? B. Did the Second Panel breach any duty of fairness or natural justice? C. Did the Second Panel disclose a reasonable apprehension of bias?

A Were the Second Panel’s medical findings reasonable? [74] The Second Panel concluded that: • from available test results, it appears Mr. Taylor was exposed to manganese and had elevated levels of manganese in his blood andurine; • the exposure may have been in the workplace, as the presence of some manganese in that environment was documented; • the half-life of whole body manganese is said to be 37 days and longer in the brain;

• in exposed workers, no correlation is found between airborne manganese and manganese concentration in the blood and urine, which suggests individual differences in absorption and excretion; • exposure limits for workers in Alberta are five times greater than American standards, and were changed from 9-20 nmol/L to 0- 120 nmol/L between March 2000 and July 2001 according to documents submitted; • although blood manganese levels for Mr.

Taylor indicate some low level exposure, these levels were not compatible with manganism (p.8): It appears that his syndrome had an onset that coincided with working at low levels of manganese exposure, but it appears it was not caused by that exposure. [ 75 ] The Second Panel reviewed medical literature indicating that manganese toxicity produces certain neurologic changes that are observable through an MRI. However, the Second Panel noted that MRIs in 2001 and 2006 were unremarkable.

As well, the Applicant’s loss of central vision and his tremor did not conform to the neurologic features recorded in the literature. The Second Panel concluded (p. 9): If Mr. Taylor was exposed to manganese in his workplace and if there was enough to produce toxicity, one would expect the neurologic features of his syndrome to conform to those features recorded in the literature. Since they do not, it is not possible to conclude that he has manganese toxicity producing neurologic symptoms. It is possible Mr.

Taylor’s is the first case of this type to have occurred or that similar cases might have been overlooked. In our view, that is very unlikely because it is obvious that he has tremor and there are many causes of tremor, and a tremor that is present at rest with maintenance of posture and with action may, perhaps, to non-neurologists (Dr. Greenwood, Dr. Cheng, Dr. Lewis and his family physician), appear to be consistent with a diagnosis of manganese toxicity. Clearly, this is not supported by evidence from examination by the most experienced movement disorder specialist that Mr. Taylor has seen, Dr.

Martin, or the extensive literature researched and quoted. The review of literature does not provide any evidence that manganese toxicity can produce the signs and symptoms exhibited by Mr. Taylor. There is a lack of a specific ophthalmologic diagnosis. At one point it was thought that his visual symptoms were due to optic nerve dysfunction, that that appears, in the most recent evaluations, not to be the case. PET scanning might be able to identify disturbances and malfunctioning areas of the visual pathways. Convincing neuropsychological problems have not been identified in Mr. Taylor’s case.

An EEG was not done when Mr. Taylor was asked to have this arranged prior to the initial panel assessment in 2003. Consequently, while it is within the realm of possibility that manganese toxicity was present, it would be the first documented instance of this sequence of symptoms and signs to have occurred and the panel cannot establish this as a precedent in this case, even though we can sympathize with the claimant that the syndrome he has developed has produced a significant disruption in his life. We are referring here primarily to the visual disturbance as Mr. Taylor reported to Dr.

Martin, at the most recent assessment, that the tremor was not significantly interfering with functioning. The panel felt it was important to review all of the materials provided and not just the new evidence, and to allow [counsel] time to present their materials for review. According to the balance of probabilities, the panel could not conclude that manganese or other defined occupational exposure was responsible for Mr. Taylor’s clinical syndrome. Perhaps time will further reveal specific tissue features more clearly and allow further refinement of the proper causes for Mr.

Taylor’s problem. [ 76 ] The full Report states that the Second Panel could find no evidence to support the theory that the symptoms which became problematic in December 1999 were directly work-related. [ 77 ] Only a fraction of the 10 page report is captured by this

summary and the limited quotes. In addition to the Brief prepared by legal counsel, the report makes reference to 17 medical journals or research articles as well as reports from at least 10 sources. [ 78 ] The Applicant urges this Court to find fault and reversible errors which collectively or by domino effect undermine the reasonableness of the Second Panel Report.

In particular, counsel alleges failures to properly and fairly: • explore discrepancies to assess the acceptable range of manganese toxicity in serum; • apply the correct half-life calculation for manganese in serum; • weigh the opinions of various specialists and the medical literature; • determine what diagnosis best explains the claimant’s clinical presentation. [ 79 ] The Respondent WCB points out that the Second Panel considered multiple disorders as reported by the treating and consulting physicians.

They received and carefully reviewed the new evidence as well as submissions of counsel as to the whole of the material. As fact finders, they were not obliged to definitively reconcile conflicts but rather to formulate a consensus opinion from three specialties. Their Report sets out reasons which are intelligible, transparent and justifiable.

1 Acceptable range of manganese toxicity in serum [ 80 ] The Applicant alleges failure to explore discrepancies to assess the acceptable range of manganese toxicity in serum. The discrepancy is predicated on an American text, R. Lauwerys, P. Hoet, Industrial Chemical Exposure - Guidelines for Biological Monitoring , 2d ed (Boca Raton, FL: Lewis Publishers, 1993) which does not appear to be one of the 17 sources cited in the Report. Counsel invites the court to conclude that it was not reviewed.

Counsel submits that if it had been reviewed, the Second Panel would have noted a contradiction in the “normal range of serum manganese toxicity”. [ 81 ] This critique is flawed at various levels: • the text excerpt at p. 526 is far from unequivocal: it cites various reports or studies (1988, 1989, 1990 and 1991) with different ranges for blood and serum, without declaring an accepted norm adopted by scientists or the medical profession; • the Second Panel findings do refer to differential standards for blood (serum) and urine (page 7), including standards in Alberta and comparisons with ACGIH in the U.S. using somewhat variant unit measurements; • the Report also notes individual differences in absorption and excretion which further undermine the reliability of serum testing; • it refers to an

Article from the American Journal of Industrial Medicine which concluded that serum tests are not suitable to measure manganese toxicity of individuals; • having noted individual differences in absorption and excretion, the Report concluded (p.5, para 14) that the tests are not suitable biomarkers for manganese exposure. [ 82 ] The task of this Court on review for reasonableness is to read the reasons together with the outcome to determine whether the medical findings fell within a range of possible outcomes: Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 , [2011] 3 SCR 708.

The Court may, if necessary, look to the record for the purpose of assessing the reasonableness of the outcome. In fact, there is nothing to indicate legal counsel referred to this source, much less that it established a measurable norm.

I do not cite this as a criticism in representation, rather as a basis to conclude that it would be unfair to infer that the point was ignored. 2 Half-life calculation for manganese in serum [ 83 ] The Applicant’s second criticism is that the Second Panel failed to apply the correct half-life calculation for manganese in serum. [ 84 ] Nothing in the Report speaks to a calculation taken back from the March 2000 serum test results to the last date of workplace exposure in December 1999.

Nor does it appear that any of the reports from specialists made any such calculation, or that counsel made any calculation after misstating the half-life at 20 days as opposed to 37 which the literature cited by the Second Panel supports. I reject any invitation to again infer that the Second Panel acted or dealt unreasonably with the evidence, because their conclusions specifically discount serum testing on the basis that it is unreliable. Extrapolations back from unreliable test results do not logically enhance their reliability.

I find nothing unreasonable tied to half-life calculations that would render the Second Panel’s conclusions unreasonable. 3 Opinions of specialists and in the medical literature [ 85 ] The Applicant argues that the first two “errors” support that the Second Panel failed to properly weigh the opinions of various specialists and the medical literature. From this the Court is invited to conduct a further probing analysis to conclude that the opinions of the General Practitioner (Dr.

Walker) and four different specialists who saw the Applicant should be preferred over those five specialists who gave opposing opinions, but who did not see the Applicant. [ 86 ] I note that the opinions of at least two specialists relied on by the Applicant are rather equivocal in that they are unable to come up with a better explanation of symptoms than the risk of manganese toxicity. None of the literature supports a conclusion that the multiple-factorial syndrome of the Applicant can be attributed to manganism or toxicity. Further, the Applicant declined to meet with the other specialists or to be tested.

He was, of course, not obliged to do so, but it weakens the argument that differing opinions must be discounted due to the fact that the specialists in question did not see him.

In any event, the Second Panel’s ultimate conclusion did not turn on whether or not the Applicant experienced certain symptoms, but whether the current expert medical knowledge in the area of manganese poisoning supported a link between those symptoms and exposure to manganese. 4 Diagnosis best explaining the Applicant’s clinical presentation [ 87 ] I turn then to the argument that the Second Panel acted unreasonably because they failed to determine what diagnosis best explains the Applicant’s clinical presentation. [ 88 ] Quite frankly this argument simply ignores the constraints on any professional: asking a question does not per force establish that the question is capable of an answer.

Nor does asking it twice. Restatement of a question can at times help to reveal a clear answer.

But in medicine, as in law, the restatement of hard questions often offers no assurance of an answer, clear or otherwise. The fact that oneor more specialists convene to reconsider what diagnosis best explains the clinical presentation of a WCB claimant, does not mean theywill be successful. Nor does it oblige them to make a single choice from divergent views.

Where the medical evidence and knowledge ofthe day precludes an answer, it is entirely reasonable to say so. [89] A medical panel may be expected to review all materials gathered and measure according to the literature and their multi-specialization expertise.

But it is not obliged to speculate or extend the opinion beyond the current state of knowledge. [90] Even if a mistake was made as to half-life calculation and toxicity, this would not undermine the conclusion that the SecondPanel was unable to reach a medical consensus as to a diagnosis to best explain the claimant’s clinical presentation. [91] In any event, the critical question in the WCB context in this matter was whether the Applicant’s symptoms could somehowbe linked to workplace exposure to manganese.

The Second Panel concluded that the neurologic features of the Applicant’s syndromedid not conform to those recorded in the literature; the review of the literature did not provide any evidence that manganese toxicitycould produce the signs and symptoms exhibited by the Applicant. [92] I conclude that the Second Panel’s report met the requirements of justification, transparency and intelligibility, and its medicalfindings fell within a range of possible, acceptable outcomes.

B Did the Second Panel breach any duty of fairness or natural justice? [93] It was conceded that the Applicant: had notice and time to prepare, had access to all materials, was allowed to present writtenmaterials and make full submissions, and received a copy of the Second Panel Report on a timely basis.

There is also no dispute that theSecond Panel made good on its invitation after the first hearing in 2003 to reconvene if any new materials became available. [94] The Applicant urged that the alleged failings with respect to the merits just reviewed above point to a flawed process.However, there were no criticisms raised with the process, except as may be folded into the final ground alleging bias. Leaving aside thatissue, there is nothing before the Court which would indicate unfairness or breach of natural justice.

C Did the Second Panel disclose a reasonable apprehension of bias? [95] The Applicant argues that: • the Second Panel was composed of two of the three experts who sat on the original hearing in 2003 and there was no variation inthe findings despite the new evidence and submissions; • the Aschner Letter discloses an error in the calculation of toxicity, based on a more accurate half-life reading level; • the brief content of the MP Response discloses that the panelists were unfairly dismissive of the opinion of a highly qualifiedspecialist concerning manganese toxicity and the scientific likelihood of an effect on the Applicant. 1 Composition of the Second Panel [96] The Applicant cited Aney v Canada (Attorney General), 2005 FC 182 in support of his argument that it was not possible forthe Second Panel to approach the review of their 2003 decision in the same way as would a panel of new members. [97] WCB counsel argued that medical panels are fact finders, not quasi-judicial tribunals, and the second hearing was not areconsideration of the first medical panel, but rather a new hearing. [98] Counsel for the Second Panel took the position that medical panels are drawn from multiple disciplines, volunteer theirexpertise with no vested interest in the outcome and will reconvene to consider further relevant information. [99] Panel members are presumed to decide impartially.

Factors which may point to a reasonable apprehension of bias include apersonal or financial interest in the outcome, a present or past link with a party, earlier participation or knowledge of the litigation,comments during a hearing, indicia of pre-determination of the issue, expression of an opinion or undertaking of an activity illustratingbias: Wheale v Brazeau (County), 2006 ABCA 171 at paras 23 and 24, 384 AR 215, citing S Blake, Administrative Law in Canada, 4thed (Markham: LexisNexis, 2006) at 114 and Wewaykum Indian Band v Canada, 2003 SCC 45, [2003] SCJ No 50.

Detailed knowledgeof the matter and considerations of efficiency may militate in favour of continued involvement: Walton v Alberta (SecuritiesCommission), 2014 ABCA 446, 588 AR 327. Further, bias should be raised at the earliest practicable opportunity: Canada (HumanRights Commission) v Taylor, (SCC), [1990] 3 SCR 892, [1990] SCJ No 129 at para 175. Waiver may be implied fromthe failure to do so, particularly where the applicant was represented at the relevant time. [100] Nothing in the Act addresses appointments except in relation to eligibility. However, pursuant to s. 3(3) of the Regulation, the

claimant and the employer are each given a right to select one of the appointments from the case eligibility list in an applicable field of expertise. The Record does not indicate why the Applicant declined to exercise that prerogative on both occasions. His non-participation in the selection, together with the failure to object to the partial overlap for the Second Panel, does not assist the Applicant in his attempt to establish a reasonable apprehension of bias.

Nor does his failure to complain in 2010 about the composition of the Second Panel. [ 101 ] Medical panels are mandated to provide an independent statutory assessment expressed to be final, binding and conclusive on all affected parties. The Act requires referral of a medical issue where there is a difference of medical opinion; the findings of a medical panel will be final and conclusive without court review. The Regulation obliges the medical panel to review material from the referring body, with discretion to request additional information: ss. 5(1)(a), (

c) and 9. [ 102 ] The legislative scheme is supportive of the expectation that all participants will enable fair and timely processing of claims. The role to assemble and consider relevant research and reach a consensus is not the same as a final adjudication of a WCB claim. [ 103 ] As stated earlier, it may not always be possible for a medical panel to reach a consensus at a given point. In such circumstances, reconsideration based on new evidence is well justified as medical knowledge may at some point enable a diagnosis which would inform the question of entitlement to benefits.

The first panel’s encouragement to the Applicant to pursue further medical examinations with a view to obtaining an appropriate clinical diagnosis was entirely reasonable. It is quite arguable that the subsequent reconsideration should engage the same specialists who were responsible to examine the case initially and invited further input. Further, it may become quite difficult to access specialists in various disciplines if a new panel was required on all reconsiderations. [ 104 ] On the facts here, one of the members did have to be replaced which created some fresh input.

The Second Panel Report was not at all the same as the first, except in the result of not being able to conclude that the Applicant’s condition was work-related. Nothing in the Record, the representations of legal counsel or the Report itself even hints at a pro forma repetition to achieve the same result. [ 105 ] I conclude that a fully informed observer, considering the context of the entire proceedings, would not reasonably conclude that the Second Panel was partial or biased. 2 Error in calculating toxicity [ 106 ] The Aschner Letter contains a calculation of toxicity.

However, it did not refer to the evidence of workplace sampling or the Applicant’s symptoms. It cited one scholarly

article in support of the statement that exposure to manganese has been reported to affect colour and contrast vision. Dr. Aschner is not a physician. Nevertheless, it may well have been useful information to have presented at the time of the second hearing in 2010 rather than four years later. [ 107 ] But even assuming that the further extrapolation of the Applicant’s manganese level in December 1999 was more accurate and reliable, it simply does not give rise to a reasonable apprehension of bias. The half-life was properly stated by the Second Panel.

They were not asked and did not do an actual calculation - nor did anyone else. Again, the Second Panel concluded that manganese toxicity could not medically account for the constellation of symptoms experienced by the Applicant, including far more serious issues than the optical color and contrast vision mentioned in the Aschner Letter.

As noted previously, the Applicant declined the first medical panel’s request to undergo a visual field, a colour visual field and an electroencephalogram study. [ 108 ] I conclude that a fully informed observer, considering the context of the entire proceedings, would not reasonably conclude that the Second Panel was partial or biased by virtue of any error in calculating toxicity. 3 MP Response [ 109 ] The Applicant argues that the MP Response should be interpreted as a statement that no matter what information the Applicant submits which is contrary to that relied on by the Second Panel, their decision will not change. [ 110 ] Counsel for the Second Panel submits that the medical panel commissioner thought it appropriate to seek clarification from the Second Panel, given that the Applicant had alleged the Second Panel had erred. [ 111 ] The Aschner Letter arrived over four years after the second hearing.

It was rejected in the Appeals Commission process in 2015 with input from the medical panel commissioner. The Appeals Commission decision from 2013 was pending judicial review. The Aschner Letter resurfaced in the Applicant’s October 2015 affidavit as a proposed adjunct to this judicial review filed back in June 2010. The commissioner then solicited input without invitation from the WCB and or a request from the Applicant.

From the wording, it would appear that legal counsel had questions which the commissioner could not answer; but nothing suggests that legal counsel knew, much less requested, a response from the Second Panel. [ 112 ] The Applicant argues that the Aschner Letter is not just another opinion but discloses a mistake that the Second Panel refused to acknowledge. [ 113 ] The question on this judicial review is not whether the Second Panel might be perceived as being impartial were they to preside over a third hearing where the only new material was the Aschner Letter.

The question for this Court is whether the MP Response would lead a fully informed observer, considering the context of the entire proceedings, to conclude that the Second Panel was impartial in making the medical findings in 2010. [ 114 ] The MP Response essentially stated that the Aschner Letter and toxicity calculations are irrelevant, reiterating the Second Panel’s finding that the Applicant’s constellation of symptoms is not associated in the literature with manganese exposure.

The description of the MP Response most favourable to the Applicant would be to say it is brief and defensive, neither of which gives rise to a reasonable apprehension of bias. [ 115 ] In fairness to the Second Panel, this did not derive from a third hearing: it was triggered five years later, it was not provided on

their own initiative, and it was not on an issue unfamiliar to them or the Applicant’s advisors.

They reiterated their earlier findings in opining that the Aschner Letter was not relevant to their ultimate conclusion. [ 116 ] I find that the MP Response does not detract from the integrity of the two hearings in which the panel appears to have diligently pursued how to reconcile conflicting medical opinions obtained over an extended period. [ 117 ] I conclude that a fully informed observer, considering the context of the entire proceedings, would not reasonably conclude that the Second Panel was partial or biased on this basis.

Nor do the three grounds raised by the Applicant, taken together, lead to a different conclusion. IX Disposition [ 118 ] As expressed by judges previously asked to make interim rulings dating back more than a decade on this file, the circumstances of the Applicant do engage considerable sympathy. However, that is not a factor which is properly taken into account on this judicial review for reasonableness of medical findings. [ 119 ] The application must be dismissed.

X Costs [ 120 ] All parties have confirmed that costs are not being claimed. [ 121 ] If the parties wish to address the Court in order to resolve any other matters arising from this decision, they may arrange to speak to them within 45 days from the date of this decision. Heard on the 5 th day of February, 2016. Dated at the City of Edmonton, Alberta this 1 st day of March, 2016. S.D. Hillier J.C.Q.B.A. Appearances: John W. Hagg - Stillman LLP for the for the Applicant Taylor Jeffrey W. A. Moore for the Respondent Medical Panel Jason J. J. Bodnar for the Respondent Workers’ Compensation Board