Yuill v Alberta (Workers’ Compensation Appeals Commission), 2016 ABQB 369

Court of Queen ’ s Bench of Alberta Citation: Yuill v Alberta (Workers’ Compensation Appeals Commission), 2016 ABQB 369 Date: 20160630 Docket: 1510 00389 Registry: Red Deer Between: RaeAnn Lynette Yuill Appellant - and - Workers’ Compensation Appeals Commission and Workers’ Compensation Board of Alberta Respondents _______________________________________________________ Reasons for Decision of the Honourable Madam Justice S.L. Martin _______________________________________________________ I.

Introduction [ 1 ] The applicant challenges the decision of the Worker’s Compensation Appeals Commission that her right shoulder and neck injuries are not related to any compensable accident and therefore are not subject to additional compensation. Specifically, at issue is Decision Number 2014-0730 reached on November 6, 2014.

[ 2 ] Before this court was the applicant, who is now self-represented, and separate counsel for the Worker’s Compensation Appeals Commission and the Workers’ Compensation Board Alberta. II. Facts and Procedural History [ 3 ] The procedural history in this matter is lengthy and involves a great deal of medical information. However, it can be summarized in the following way.

a) The Initial Injury [ 4 ] On June 28, 1998, Ms. Yuill injured her left hand when she was using a saw at her employer, Yellowhead Wood Products Inc. The cut severed tendons and she required two surgeries, on July 1 and December 2, 1998. The Workers’ Compensation Board (“WCB”) accepted her claim for significant left wrist laceration with some tendons in the radial nerve and chronic regional pain syndrome (“CRPS”). [ 5 ] Ms. Yuill then began experiencing pains in various parts of her right arm, which she attributed to overuse based on her inability to use her left arm.

On November 7, 2000, the WCB Appeals Commission accepted her right arm problems, including her wrist, elbow and shoulder, as a secondary injury: meaning that it was a new issue, traceable to the original compensable claim.

The Commissioners accepted these injuries were due to overuse of the right arm due to her weakened left arm in the following terms: Her right arm problems, including those in her wrist, elbow and shoulder, are a new and distinct impairment that has occurred as a consequence or complication of the compensable injury. [ 6 ] She was granted an economic loss payment based on the estimated earnings of a hotel front desk clerk. [ 7 ] On March 13, 2006 the WCB required her to attend for an independent medical examination (“IME”), to ascertain her progress, diagnosis and ability to work. [ 8 ] Dr.

Naidu, a physiatrist, conducted the IME and concluded that she had pain at the front of her right shoulder and tenderness in the pectoralis muscles around that area. She also had upper trapezius and periscapular muscular pain. No specific pathology related to the shoulder joint itself was found. He diagnosed chronic pain syndrome of myofascial or soft tissue origin in relation to the right upper extremity. He found it difficult to state if his findings were due to overuse.

He felt that she was not capable of any work with her left arm, could not work as a desk clerk and limited her job prospects to some sedentary or limited work that did not involve repetitive work with her right hand. Her WCB payments were adjusted accordingly and were based on the estimated earnings of a retail salesperson or cashier. [ 9 ] There was almost no mention of right shoulder and neck problems to the WCB again until October 2012.

b) Right Shoulder and Neck Problems in 2011 [ 10 ] Ms. Yuill reports that as of 2011 she began to experience further right shoulder pain and pain in her neck and cervical spine. She attributed these injuries to the continued overuse of her right arm and suggested that whether this classified as a new injury or a further disability, it was traceable to the original compensable claim concerning her left wrist. [ 11 ] She consulted Dr. Auret in 2011, who concluded that Ms.

Yuill, “has also developed foraminal stenosis with nerve impingement in her neck and also some nerve impingement in her right shoulder.” In her June 14, 2013 report, Dr. Auret also said that Ms. Yuill suffered from myofascial pain syndrome and a rotator cuff injury right shoulder. [ 12 ] On October 19, 2012 an MRI was done of her right shoulder and neck. The history stated was chronic pain not yet diagnosed and degenerative changes of the neck.

The right shoulder MRI impression was: Presence of AC joint arthropathy, subacromial subdeltoid fluid and tendinosis of supraspinatus/infraspinatus would correlate with a clinical diagnosis of external impingement. The fluid within this syndesmosis at the os acromiale suggests instability of the syndemosis which has been associated with subacromial impingement. [ 13 ] Ms. Yuill attended at the Caleo Health Spine Clinic. A report dated February 8, 2013 prepared by Dr. Soumbasis and Dr. Storring recounted her history of a left wrist cut in 1998 and repetitive stress injury to her right arm.

They reported a two year history of neck and jaw pain and that she suffered a rotator cuff injury while lifting her child. They believe she had signs and symptoms consistent with a diagnosis of degenerative disc disease of the cervical spine. [ 14 ] Around February 11, 2013, the applicant advised WCB that she was experiencing further medical difficulties related to her neck and right shoulder and requested further benefits and services. It was noted that she was unwilling to attend an IME at this time. [ 15 ] The WCB sent their file for a review to Dr. Charleton.

In a report dated March 2, 2013, he concluded that the findings on the MRI of the right shoulder suggested that the impingement was due to a congential condition rather than her work injury. He was also of the view that the degenerative changes in her neck were not related to her accepted work injuries. [ 16 ] Ms. Yuill had a number of facet joint injections to treat her neck problems. [ 17 ] Ms. Yuill then saw Dr. Giantomaso, a physiatrist.

His report dated May 30, 2013 outlined how she began to experience chronic pain in the neck and right shoulder after her 1998 injury and tried multiple cortisone injections in the neck and shoulder with minimal relief. He noted she had good cervical shoulder range of motion bilaterally on examination. She had positive impingement

symptoms in the right shoulder and diffuse tenderness in the neck and periscapular region on the right side. His stated diagnoses were: 1. Chronic mechanical neck pain of myofascial and degenerative origin. 2. Chronic right shoulder impingement syndrome. 3. Left-hand chronic neuropathic pain syndrome. 4. Overuse syndrome to the right arm including signs of wrist and elbow tendon opacity and arthritis. [ 18 ] Counsel for Ms. Yuill provided Dr. Giantomaso with Dr. Charleton’s report and asked for his reaction to the claim that her then current right shoulder issues were the result of a congential condition.

In a further report dated October 23, 2013 Dr Giantomaso reviewed the MRIs and most of the report is directed to refuting Charleton’s opinion that her right shoulder issues had anything to do with it a congenital condition. He stated at paragraph 9: In my opinion, her ongoing right shoulder impingement and rotator cuff tendinopathy is a result of overuse related to work as well as compensation to her post Worker’s Compensation Board injuries and did result in permanent clinical impairment and would contribute to a loss of earning capacity.

c) Ms. Yuill’s claims were rejected by her Case Manager and the Review Board [ 19 ] Ms. Yuill’s claim for additional WCB benefits based on her right shoulder and neck issues were rejected by her caseworker. [ 20 ] Ms. Yuill appealed to the Dispute Resolution and Decision Review Body (“DRDRB”). The resolution specialist considered two policies, first WCB Policy 03-01 “Injuries” which applies when an injury has occurred as the result of a compensable accident. Under this policy the WCB will evaluate the relationship between the new injury and the compensable accident.

Also considered was WCB Policy 04 – 03 “Recurrence of Temporary Disability” which applies when there is a recurrence of a temporary disability due to a previous compensable disability from which a worker has apparently recovered. [ 21 ] The decision of the DRDRB was to not accept responsibility for her current right shoulder and neck problems. They found that the weight of the evidence supported that these problems were not related to the work injuries accepted under this claim. This decision maker took into account that the March 2006 IME found no specific pathology related to the right shoulder joint itself.

There was a chronic pain syndrome of soft tissue origin and he said it was difficult to state if the findings were due to overuse. [ 22 ] Further, the decision noted that there was a 6 ½ year period, until October 2012, following this assessment where there was very little ongoing medical reporting relating to her right shoulder problems. [ 23 ] In the view of the DRDB, Dr. Giantomaso‘s two reports did not provide evidence of causation: specifically he did not attribute her neck problems and chronic right shoulder impingement syndrome to her work injury. The DRDRB placed significant weight on Dr.

Charleton’s opinion that the cause of her right shoulder and neck injuries was congenital. [ 24 ] Ms. Yuill then appealed to the Appeals Commission.

d) The Appeals Commission Decision [ 25 ] The Appeals Commission is the final level of appeal for matters related to the WCB. The Appeals Commission functions separately from the WCB and reviews decisions made by the Dispute Resolution and Decision Review Body. [ 26 ] The Appeals Commission conducts a fresh hearing, and while it applies the same legislation, regulations and policy as the WCB, it is not bound by the previous decision of the DRDRB. [ 27 ] Procedurally, the Appeals Commission prepares an Appeal Documents Package (“ADP”), which is given to each party to the appeal.

Each such party has the ability to supplement the ADP as they see fit and the Appeals Commission is obliged to accept and review any new and additional evidence submitted in this manner. [ 28 ] At the time of the appeal, Ms. Yuill was represented by counsel. Counsel submitted further documentation to the Appeals Commission and a written brief. [ 29 ] The Record also included a full transcript of the hearing held August 13, 2014. Ms. Yuill’s counsel argued forcefully, demonstrating a full command of relevant factual and legal issues. Ms.

Yuill also made representations and answered questions from the Appeals Commission. [ 30 ] Ms. Yuill, through counsel, argued that the right shoulder and neck issues should be compensable.

Either they were a new injury under Policy 03-01 that was attributable to the left arm injury or they were new manifestations of a recognized disability under Policy 04 – 03, based on the accepted overuse of her right arm already approved by the WCB in 2000. [ 31 ] Counsel argued that under either policy, these new conditions were traceable back to the compensable claim because continued overuse of her right arm was required because of her inability to use her weakened left limb.

Counsel said this Appeals Commission should apply the same type of analysis to these further injuries as was accepted by the Appeals Commission in 2000. In essence, counsel submitted that the Appeals Commission has already recognized that the chronic right pain syndrome and the applicant’s left arm has caused her to rely on her right arm, causing the second injury to her right arm as a result of the injury to her left wrist. [ 32 ] The Appeals Commission rejected Ms. Yuill’s claim in Decision Number 201-0730, dated November 6, 2014.

[ 33 ] The Appeals Commission dealt with the matter purely under Policy 03 - 01 and stated the issue as, “Are the worker’s current right shoulder and neck problems related to her June 28, 1998 compensable accident?” [ 34 ] They believed this turned on two further questions: 1. Does the medical evidence show there is a relationship between the worker’s right shoulder and neck problems and her June 28, 1998 compensable accident? 2.

Does the medical evidence show the worker’s right shoulder and neck injury is a new and distinct impairment occurring as a consequence of her weakened left wrist? [ 35 ] They outlined the submissions of counsel and presented their findings on the evidence. [ 36 ] The Appeals Commission does not dispute that Ms. Yuill is currently experiencing right shoulder and neck difficulties. However, they did not believe these problems are traceable to the compensable injury. Their full conclusions are found in paragraph 13: 13.

We conclude there is no compelling evidence to show the worker’s right shoulder or neck symptoms are related to her June 28, 1998 compensable injury. We base this on the following evidence: 13.1 While medical reporting shows the worker has an overuse syndrome in her right arm, this is been previously adjudicated by the Appeals Commission in the November 7, 2000 decision. This issue is not before the panel. 13.2 There is no compelling evidence to show the worker has a weakened left limb as a result of the compensable left wrist injury. As Policy 03-01,

Part II Application 2 requires that a second injury result from a weakened limb or complication from WCB approved medical treatment; we find the worker does not meet the policy criteria. 13.3 While the physical medicine and rehabilitation specialist stated the worker’s neck and shoulder symptoms were related to overuse because of the repetitive nature of her vocation and work, we place less weight on this opinion as a worker stated that she has not worked since the compensable accident in 1998. 13.4 The evidence shows and the worker confirmed she suffered a shoulder injury as a result of a specific incident while lifting her child into a car seat.

The panelist found no evidence to show the worker has limited ability to lift her child as we found no compelling evidence to show the worker’s left arm was weakened as a result of the compensable injury. [ 37 ] On April 21, 2015, the Applicant filed an Originating Application – Notice of Appeal and states it is an “Appeal from Appeals Commission for Alberta Workers’ Compensation/Workers’ Compensation Board Alberta.” [ 38 ] Ms. Yuill applied for a reconsideration of the Appeals Commission’s Decision. In a decision dated June 9, 2015 her request to submit various documents as fresh evidence was denied.

e) The Nature of this Proceeding [ 39 ] The applicant filed an Originating Application against the Respondents on April 21, 2015.

The first issue with respect to these pleadings is whether the relief requested is appropriate for the nature of this proceeding, which has been set down as an appeal under the Workers’ Compensation Act, RSA 2000 c W-15 (the “Act”). [ 40 ] The Originating Application alleged, “I'm going to prove that employees of Workers' Compensation Alberta are guilty of gross miscarriages of justice, violations of the Charter of Rights , violations of the Workers' Compensation Act , malpractice, slander, gross negligence, fraud, intrinsic fraud, and constructive fraud.” As relief, the applicant claimed, “A one time, lump sum payout for lost wages, punitive damages, and preventable injuries, in the amount of Three Million Dollars.

I no longer wish to be at the mercy of the Workers' Compensation Board of Alberta.” [ 41 ] The Act provides a complete statutory code for the compensation of claimants injured in workplace accidents. The legislation provides injured workers with compensation that is independent of both fault for an accident and the ability of the employer to pay. The legislation prevents employees from suing employers under the common law for work related injuries.

Rather than suing the employer, the applicant in this case is seeking a lump-sum award against the Worker’s Compensation Board and the Worker’s Compensation Appeals Commission. [ 42 ] The application has been filed as a judicial appeal, pursuant to

section 13.4 of the Act , which permits any person that has a direct interest in a decision of the Appeals Commission to appeal the decision to the Court of Queen's Bench on a question of law or jurisdiction. [ 43 ] The Rules provide where an enactment authorizes or requires an application, such shall be commenced by originating application (rr. 3.2(2)(d)).

Section 13.4(2) of the Act requires that an appeal must be commenced by application, and therefore the filing of the originating application was proper in this case. [ 44 ] In my view, a judicial appeal is appropriate based on the nature of some of the allegations contained in Ms Yuill’s May 8, 2015 brief. The brief addresses the facts surrounding her 1998 work accident and injury, the WCB’s management of her claim for compensation, the impacts of the work accident and injury on her life, her ongoing medical concerns, and concerns with the evidence before the Appeals Commission hearing.

The Court on hearing may confirm or set aside the decision of the Appeals Commission, and if it chooses to set aside the decision, send it back to the Appeals Commission for determination. The applicant’s relief on a re-hearing before the Commission would be limited to what she would be entitled to as compensation for a claimant provided under the Act . [ 45 ] In other respects, the nature of the allegations and the relief sought are not appropriate for a judicial appeal. The allegations

contained in the applicant’s brief relating to her care while in the Millard Health Centre in 1999, her retraining with the WCB, her wage supplement, and her medical aid and treatment entitlement were not before the Appeals Commission at the time of the 2014 Decision. Further, her allegations of fraud and slander and allegations of Charter breaches are not compensable in a proceeding for judicial review. The Court is not entitled in a judicial appeal to make a lump-sum payment for the various breaches alleged. [ 46 ] The alternative to proceeding by way of judicial appeal is to file a statement of claim.

Even if the application was to be converted to a trial based on a statement of claim, besides the evidentiary and procedural concerns with proceeding in that manner, there are several problems with seeking a lump-sum damages award against the Board and Appeals Commission. [ 47 ] The relief currently requested against the WCB and the Appeals Commission is beyond what this Court may order.

Under sections 17(2) and 13.1(9) of the Act , no action may be brought against these bodies, or any member or employee of these bodies, in respect of any act or decision done or made in honest belief that it was within the jurisdiction of the WCB and the Appeals Commission. Further, the applicant’s former lawyer and the unnamed psychiatrist are not named as parties to this application, although claims are made against them. [ 48 ] Under section 17(1) of the Act , the Board has exclusive jurisdiction to examine, inquire into, hear and determine all matters and questions arising under the Act .

Decisions of the Board are final and may only be reviewed pursuant to the appeal provisions of the Act . An attempt to challenge the determinations of the Board by filing a statement of claim would constitute a collateral attack. [ 49 ] During a case-management conference, Ms.

Yuill confirmed that she wishes to have this Court hear this application as a judicial appeal of the Appeals Commission. [ 50 ] By proceeding in this manner, the Court is only able to consider the decision that is under review, being Decision 2014-0730, and make determinations that it is explicitly entitled to make in accordance with the Act . [ 51 ] By proceeding by way of judicial appeal, the Court declines to consider allegations of malpractice, slander, gross negligence and fraud that are not compensable in a proceeding for judicial review. [ 52 ] Further, with respect to the Charter allegations, the Originating Notice lacks the particularity of pleading required nor is it stated why a remedy of damages would be appropriate.

III. The Parties Arguments [ 53 ] Ms. Yuill has filed much material and represented herself.

Not all of her arguments are addressed to the limited range of issues arising in a judicial review, but her arguments, concerns and complaints appear to be that the decision of the Appeals Commission is not only incorrect but unreasonable, improperly discounts the medical evidence of her treating physicians, and did not consider both Policies which may provide a basis for recovery, [ 54 ] She argues that her right side condition is progressive in nature and her new injury is traceable to what was recognized in 2000 by the WCB: that is that her injury to her left hand led to overuse of her right arm and that resulted in injury to her right hand, elbow and shoulder.

Since the WCB accepted she suffered from chronic pain, they should compensate for her worsening condition. [ 55 ] The WCB argued that the Appeals Commission’s decision is reasonable. They chose between conflicting evidence, are entitled to weigh the conflicting evidence, and applied the correct Policy. The WCB argued that there is a line of analysis in the Appeals Commission’s decision from the full evidence it had before it, which included additional information tendered by Ms. Yuill’s counsel, and the conclusions it reached. IV.

Issues [ 56 ] The key issue is whether her current neck and right shoulder injuries should be covered by Worker’s Compensation. There is no dispute that there is an injury. The issue is whether her current condition is traceable to or caused by the injuries for which the WCB has accepted responsibility. [ 57 ] Four legal issues arise: 1) Are the affidavits submitted by Ms. Yuill admissible? 2) Is service in order? 3) What is the standard of review? 4) Was the decision of the Appeals Commission reasonable? V. Analysis 1) Are the affidavits submitted by Ms. Yuill admissible? [ 58 ] Ms.

Yuill filed affidavits on April 21, 2015, April 23, 2015, April 28, 2015 and March 3, 2016 and March 29, 2016. These lengthy documents outlined her various complaints concerning both the Appeals Commission’s decision, and her larger experience with

the WCB. She provided extensive medical information, some of which also appears in the Record filed by the Appeals Commission. [ 59 ] The Appeals Commission argues that this judicial review should be conducted based on the Record filed by the tribunal and her affidavits are not admissible: see, Alberta Liquor Store Assn. v Alberta (Gaming in Liquor Commission ) , 2006 ABQB 904 at paras 40 and 42 , 406 A.R. 104. [ 60 ] I accept that the use of affidavits on judicial review is exceptional.

However, they are permissible, among other reasons, when needed to establish the grounds for the application; to demonstrate patent unreasonableness not apparent from the record; or to show a complete absence of evidence on an essential point: see, White v.

Alberta (Workers’ Compensation Board, Appeals Commission) , 2006 ABQB 359 at para 35 , 400 A.R. 183, and TNL Industrial Contractors Limited Versus International Brotherhood of Electrical Workers, Local Union 424 , 1998 ABQB 241 at para 28 , 225 A.R. 245. [ 61 ] In the case at bar, there have been some challenges in articulating the nature of this proceeding and the grounds advanced for review. In my view, given that Ms.

Yuill is self- represented, it is necessary and fair to admit the affidavits as they may meet the above exceptions. [ 62 ] I have therefore read each such affidavit and have considered their contents in reaching my decision. I note, however, that a party has a right, used by Ms. Yuill’s counsel, to augment the Record prepared by the Appeals Commission. It appears Ms. Yuill wanted additional information placed before the Appeals Commission on the day of the hearing and counsel did not believe that was necessary.

While the affidavits I reviewed contained more detail and repetition, the key and relevant information was, in my view, fairly contained in the materials before the Appeals Commission. 2) Is service in order? [ 63 ] During the March 24, 2016 telephone case-management meeting, I indicated that from my review of the file, the applicant’s employer, Yellowhead Wood Products Inc., had not been served with this application. Ms. Yuill said she had not served her employer because her lawyer said she did not need to. Her employer played no role in the prior decisions or before the Appeals Commission. At this point, Ms.

Yuill was informed that service could be an issue and would be argued at the hearing. [ 64 ] On April 1, 2016, affidavits of service, including the applicant’s employer, were filed. [ 65 ] The position of the WCB is that a strict six month limitation period applies to the service of the originating application on all parties and that the limitation period cannot be exceeded or extended. [ 66 ] The Appeals Commission’s decision was issued on November 6, 2014, meaning that the applicant had failed to serve the employer by May 6, 2015.

Accordingly, the applicant was said to be out of time. [ 67 ] Service on the employer was therefore late. The employer requested an adjournment to seek legal counsel and has chosen not to participate in this application. [ 68 ]

Section 13.4 of the Act provides as follows:

(4) An application must be filed with the Court and served on the Appeals Commission and the other parties to the appeal, all within 6 months after the date of the decision that is being appealed.

(5) The Court may not enlarge the time period referred to in subsection (4). [ 69 ] Rules 3.15(2) and 13.5 of the Alberta Rules of Court , AR 124/2010, as amended, provide: Originating Application for Judicial Review 13.5(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 filed and served within 6 months after the date of the decision or act, and rule 13.5 does not apply to this time period. Variation of time periods 13.5

(1) Unless the Court otherwise orders or a rule otherwise provides, the parties may agree to extend any time period specified in these rules.

(2) The Court may, unless a rule otherwise provides, stay, extend or shorten a time period that is (

a) specified in these rules, (

b) specified in an order or judgment, or (

c) agreed on by the parties.

(3) The order to extend or shorten a time period may be made whether or not the period has expired. [ 70 ] Rule 3.15(2) requires an originating application for judicial review to be brought within six months of the decision or act. The provisions allowing the variation of time periods under Rule 13.5 are specifically excluded. The Board contends that the applicant’s employer is a “person or body directly affected by the application” upon whom service is required and therefore service was not in order within the prescribed time period.

[71] In Raczynska v. Alberta (Human Rights Commission), 2015 ABQB 494, 91 Admin. L.R. (5th) 165, Graesser J consideredwhether a judicial review of the Chief Commissioner’s decision should be dismissed on the basis that the appellant had not properlyserved the respondent professional corporation. The opinion considered several authorities, including Heikkila v. Alberta (Workers’Compensation Board Appeals Commission), 2003 ABQB 544, 347 A.R. 174 and Miller v.

Chief of the Commission and Tribunals,Alberta Human Rights Commission and the Workers’ Compensation Board (unreported) January 27, 2015, Action 1401045218(ABQB). [72] Graesser J concluded at paragraph 76: Heikkila and Miller are clear on the requirement to include the respondent to the human rights complaint as a party to any judicialreview of a decision of the Commission. Those cases are also clear that the time for serving the respondent is a firm deadline that cannotbe extended.

These Court of Queen's Bench decisions make the service requirement like the limitation period for commencingproceedings under the Limitations Act, RSA 2000, c L-12. That may be viewed as a harsh position, but I see no reason to depart from thelogic in those cases. [73] F. Prins Potatoes Ltd. v. Agriculture Financial Services Corp., 2015 ABQB 335, 50 C.C.L.I. (5th) 325, Mahoney J reached asimilar conclusion, finding at paragraph 16: The Alberta Rules of Court stipulate that an originating application for judicial review to set aside

an act of a person or body must befiled and served within 6 months after the date of the decision or act. Rule 13.5 (variation of time periods) cannot be used to extend the 6month deadline. A plain reading of the relevant rule requires that an originating application for judicial review needs to be both filed andserved within six months of the date of the impugned decision. The rule specifically excludes the application of Rule 13.5, which is therule that gives the court the ability to extend time periods found in the Rules. [74] In Ruhl v.

Alberta (Human Rights Commission), 2015 ABQB 513 , Veit J considered an application for anextension of time from the six-month appeal period. She found at paragraphs 17-18: The respondents have both provided case law which emphasizes that the Court of Queen's Bench has not now, and did not have under thepreceding Rules of Court, the power to extend the six month time limit set in Rule 3.15: Racynska.

Indeed, that case refers to authorityholding that not only does this court not have the power to extend the deadline, but that it should not extend the deadline because to do sowould undermine the policy which supports the Rule. This

interpretation of the Rules has been confirmed in many decisions by the Alberta Court of Appeal which emphasizes that Rule 3.15is strictly construed: see, for example, Athabasca Chipewyan First Nation, [2011 ABCA 29 at para. 27, 505 A.R. 72]. [75] It is clear from these authorities that the application must be filed and served within six months. Ms Yuill argues she did fileand serve the Appeals Commission within the required time, and this requirement for certainty and finality is met.

The question becomeswhether other affected parties, like her employer, must also be served within the same time-line or whether there is some latitude oncethe application has been commenced by filing and serving the impugned decision maker.

This issue appears not to have been addressedby the Court of Appeal. [76] However, the importance of providing service on the employer is emphasized in the recent unreported decision of Zimmer v.Alberta (Workers’ Compensation Board, Appeals Commission)(October 7, 2015), Edmonton 140300907 (ABQB), where JusticeSimpson stated that the employer is, “a party because of the risk it faces in the potential increase of its premiums.

The Workers'Compensation scheme is one funded by the employers of workers and it is the employer who faces the significant risk of increasedpremiums” (page 4, lines 9-10). [77] Simpson J concluded as follows at page 6, lines 8-17: For the reasons set out, this Court has no jurisdiction to provide relief by way of extending the Applicant time for naming and servingunder the Workers’ Compensation Act or the Alberta Rules of Court. I agree with Graesser J's comment in Raczynska that this is a harshposition.

However, until the legislature amends the legislation or our Court of Appeal provides authority to this Court by reference to theJudicature Act or otherwise it is not open for this Court to apply the Judicature Act and provide any relief regarding the requirements inthe statute or the rules.

Accordingly, the Applicant's claim by way of Originating Application for statutory appeal and judicial review cannot proceed and mustbe dismissed. [78] Following this reasoning, the failure by the applicant to serve the employer within six months after the date of the decisionbeing appealed means that the appellant is time-barred both with respect to s. 13.4(5) of the Act and r. 13.5(2). The Court is withoutdiscretion to permit the matter to proceed because the provisions of the Act and the Rules do not permit the extension of time for servicein this instance.

A judge cannot amend a time limit in a statute by shortening or extending unless a statute gives that power: see, KehewinCree Nation v. Mulvey, 2013 ABCA 294, at paras 10-11, 556 A.R. 282. [79] During argument, I expressed my concern that while the WCB provided written information about the appeal process to theapplicant that spoke to the service requirement, no information said it was necessary to serve the employer.

Counsel for the WCBresponded by suggesting that it would not be proper under the circumstances to inform a self-represented litigant of this requirement, assuch information would constitute legal advice. [80] Informing a self-represented litigant of the requirement to serve the employer separately from the WCB and the AppealsCommission is reasonable and would only make the process fairer and more accessible. The WCB already provides general informationto self-represented litigations on service.

Informing a self-represented litigant of the specific requirements for service on an employeravoids an obvious procedural trap. If the law is as clear on this point as was contented before me by the WCB and the AppealsCommission, then telling a self-represented person about the need to serve the employer is more akin to providing information than

giving legal advice. Providing greater information does not constitute legal advice any more than informing the applicant of service in general terms. The current practice of the WCB of providing information on service in only general terms, without reference to the obligation to serve the employer, may have the effect of denying an otherwise meritorious claimant an effective right of appeal.

In fairness, this policy should be reconsidered. [ 81 ] The failure by the applicant to provide the employer with service within six months of the Appeals Commission decision provides a full and separate ground for me to dismiss this application. It is therefore strictly speaking not necessary to deal further with the merits of the Appeal. I nevertheless make the following brief comments. 3) What is the Standard of Review? [ 82 ] The jurisprudence has already determined the standard of review applied to decisions of the Appeals Commission.

According to Gahir v Alberta (Worker’s Compensation Appeals Commission) , 2009 ABCA 59 at para 13 , 448 A.R. 135: a. Findings of fact, credibility and mixed fact and law are reviewed for reasonableness. b.

Interpretation of workers’ compensation policies, and the application of policies to particular fact situations, are reviewed for reasonableness. Whether a particular employee is entitled to compensation, and the level of that compensation, generally falls into this category. c. 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. d.

True jurisdictional issues are reviewed for correctness. [cites omitted] [ 83 ] As I understand the arguments advanced, they include that the Appeals Commission did not consider both Policies, the decision cannot be supported, and the medical evidence of her treating physicians should not have been discounted. [ 84 ] As no true jurisdictional issues are raised, the appropriate standard of review for all matters in question is that of reasonableness.

See, Esposito v Alberta (Workers’ Compensation Board) , 2009 ABQB 188 at para 81 , 470 A.R. 239, and Boyd v JBS Foods Canada Inc , 2015 ABCA 380 at para 33 , 609 A.R. 239. [ 85 ] Before turning to the arguments, it is important to highlight the limited nature of the review conducted by a court on a judicial review of a specialized tribunal such as the Appeals Commission. [ 86 ] The limited role of a reviewing court was noted in Dunsmuir v New Brunswick , 2008 SCC 9 at para 47 , [2008] 1 S.C.R. 190: 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 inquires 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. [ 87 ] The Supreme Court has provided guidance on how the reasonableness standard is to be applied in N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62 at para 12 to 15 , [2011] 3 S.C.R. 708 [“ NLNU ”]. The court has stated: a.

Deference requires a respectful attention to the reasons offered or which could be offered in support of the decision (para 12); b. the reason should support the conclusion reached (para 12); c. a decision should be presumed to be correct even if the reasons are in some respects defective (para 12); d. court should show a respectful appreciation for the unique expertise of specialized treat tribunals (para 13); e. reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes (para 14); and, f. courts should not substitute their own reasons, but they may if they find it necessary look to the record for the purpose of assessing the reasonableness of the outcome (para 15). [ 88 ] My role is therefore not to retry the case, but to review the Appeals Commission’s decision .

In this case I find myself in the same position as the Court of Appeal who said in Allsop v Alberta Appeals Commission for Alberta Workers Compensation ), 2011 ABCA 323 at para 37 , 29 Admin. L.R. (5th) 321: The appellant essentially asks us to reweigh the evidence in the hope that we will reach a decision different from the Commission's. The appellant thereby misunderstands the duties and function of this Court. We have determined that there was evidence before the Commission which allowed it to make a reasonable finding on a balance of probabilities.

The standard of review operates to preclude appellate interference in such circumstances. [ 89 ] I now turn to the arguments raised.

4) Was the Decision of the Appeals Commission reasonable? [90] The Appeals Commission correctly identified the issue on appeal as whether Ms. Yuill’s current right shoulder and neckproblems related to her June 28, 1998 is a compensable accident. [91] To succeed under Policy 03-01, the Appeal Commission said Ms.

Yuill was required to demonstrate all of the following: 1. a weakened limb as a result of the compensable accident; 2. a new and distinct impairment; and 3. causation between the new and distinct impairment and a weakened limb. [92] The Appeals Commission found against her on each requirement and four factual findings underpin their conclusion: Ms. Yuill’s left arm is no longer a weakened limb; Ms.

Yuill’s right shoulder and neck injuries were caused when she suffered a rotator cuff injury lifting her daughter into a car seat; There was no overuse of her right arm; and There was no medical evidence establishing causation. [93] Essentially Ms. Yuill argued that the Appeals Commission’s decision should be over-turned because it was unreasonable. [94] Ms. Yuill makes several arguments against the Appeal Commissions findings. i.

The 2000 Decision of the Appeals Commission [95] First, she argued that it was not open to this Appeal Commission to find that she did not have a weakened left limb andconsequent over-use of her right arm.

She cited the Appeals Commission in November 7, 2000, which determined that she had aweakened left arm and that “the worker’s right arm problems, including those in her wrist, elbow and shoulder, are a new and distinctimpairment that is occurred as a consequence or complication of the compensable injury.” [96] This Appeal Commission recognised that the prior 2000 decision was binding on them, but essentially concluded thatsubsequent information, including IMEs from 2001 and 2006, meant that the circumstances changed after 2001: We find the medical evidence no longer supports the worker’s problems as found in 2001 were related to her compensable left wristinjury. [97] In my view, it was open to the Appeal Commission to take a different approach based on subsequent and different evidence.The 2000 decision addressed then current information and did not purport to determine matters for all time. ii.

The Current Appeals Commission Decision is Unreasonable [98] Second, Ms. Yuill argued that more weight ought to have been given to the views of her treating physicians on each of theAppeal Commission’s findings. [99] In the general case, the proper weight to be put on evidence submitted before the tribunal is seen as an issue of fact and shouldnot be re-argued in judicial review proceedings: see, 834594 Ontario Limited v Calgary (City), (AB KB), [1996] AJNo 567 (QL) at para 8, 191 A.R. 136.

The Appeals Commission is thus permitted to weigh the evidence, and a reviewing court cannotintervene only because it may have reached a different conclusion. The Appeals Commission is entitled to place more weight on itschoice of medical opinions and reports, as long as there is the requisite justification, transparency and intelligibility. [100] The Appeals Commission certainly gave reasons for its choices and it considered all relevant evidence. However, they preferredan IME in August 2001, which questioned causation and noted a very strong psychosomatic component to her ongoing complaints.

Thatphysician was unable to perform valid testing on Ms. Yuill’s shoulders because of her pain behaviors. They relied upon videosurveillance during this time and questioned her credibility and reliability. They found it odd she had not reported weakness in her leftarm or right arm for many years.

They considered the failure of her physicians to conduct strength other tests on her left arm from anIME that found her strength was within a normal range. [101] They recognized she attended physiotherapy in July 2002 claiming pain, swelling and reduced range of motion in her rightshoulder, elbow wrist and hand and presented two occupational therapy reports in 2005 showing that Ms. Yuill obtained splints for herwrists. However, they stated: No other medical evidence is available to show the worker continued to experience problems with her right arm, shoulder or neckbetween 2000 and 2006.

While we acknowledge the worker continued to report pain in the left wrist, we found no medical reporting toshow the occupational therapist tested the worker’s strength in her left arm and therefore, there is no evidence to show the worker had aweakened left arm as a result of the compensable injury. [102] It is also clear that on some points they did accept the applicant’s evidence. For example, the Appeals Commission knew thatthe DRDRB decision placed “significant weight on Dr. Charleton’s opinion.” However, based on Dr. Giantomaso’s subsequent report,they made an independent finding, accepted Dr.

Giantomaso’s critique of Dr. Charleton’s report, and acknowledged that her shoulder

symptoms were not related to the alleged congenital condition. [ 103 ] Ms. Yuill also argued that the Appeal Commission’s finding that her left arm was not weakened was unreasonable based on the totality of the evidence. The WCB and Appeals Commission argue that the Appeals Commission fairly reviewed her evidence but simply came to a different conclusion about the state of her left arm and whether her present injuries were attributable to the previous accident. They determined: There is no compelling evidence to show that the worker’s left arm was weakened as a result of the compensable accident.

In order to be acceptable as a second injury, we must find the worker’s right shoulder and neck injury occurred as a result of a weakened left limb. In this case, we found no compelling evidence to show the worker’s left limb was weakened by the compensable accident. [ 104 ] Perhaps the thrust of these and other comments is that there was no causation between a weakened left limb and her prior accident.

While they may make this finding on causation, there are certain problematic aspects of their findings on this and other issues. [ 105 ] Procedurally, there was never any indication, before the case manager, the DRDRB or the Appeals Commission that the status of her left limb was in issue or in doubt. At the hearing, although many matters were raised, no questions about her left limb were posed to either counsel or Ms. Yuill. If asked, counsel and Ms.

Yuill could have provided that evidence or drawn it to their attention. [ 106 ] Substantively, the Appeals Commission referred to an IME performed, at their request, by a physiatrist, Dr. Naidu in March, 2006. He said it was difficult for him to comment on the relationship of her specific injury to compensatory overuse. The Appeals Commission concluded: While the IME physician stated the worker’s shoulder condition was related to a chronic pain syndrome of myofascial origin, we note this condition has not been accepted by the WCB.

The results of the IME failed to show she had a weakened left arm as a result of the compensable injury and strength was found to be within normal limits. [ 107 ] However, in that same report Dr Naidu wrote at p. 11: At this point in time, I believe Ms. Yuill would not be able to work as a desk clerk. I believe there is too much upper extremity work involved. I believe she is capable of some sedentary work with her right upper extremity, but this could not involve any repetitive work.

Her left upper extremity should not be engaged in any work activities and essentially she should be treated as a one armed worker . The difficulty is, she has a diagnosis of chronic pain of myofascial origin in the right upper extremity. [emphasis added] [ 108 ] Thus, while Dr. Naidu questioned causation, he nevertheless supported a weakened left limb.

There is no explanation as to why only part of his report was given weight by the Appeals Commission. [ 109 ] A further example is how the Appeals Commission found that the weight of the evidence showed that the worker’s neck and right shoulder injuries occurred when she lifted her child into her car seat. No consideration was given to whether or not this normal activity of daily life resulted because of the overuse of the right arm. More troubling is that the Appeals Commission did not provide a date on which it believes this activity and injury occurred. They questioned Ms.

Yuill during the oral hearing on this matter, but never asked her when her rotator cuff injury arose. Dr. Auret, her treating physician, mentioned that the pain in her right neck and shoulder began in 2011 and said the rotator cuff injury occurred in 2013. The cause-effect conclusion reached by the Appeals Commission is weakened as it depends upon an unstated, and potentially unknown date. This creates a gap in the evidence and the analysis.

The only evidence from the records I reviewed would place the first complaints of pain on the right side well before the rotator cuff injury. [ 110 ] A final example concerns the Appeal Commission’s focus on the word “vocation” in Dr. Giantomaso’s report. Dr Giantomaso said her chronic right shoulder impingement syndrome is more likely due to the nature of her work and repetitive activities rather than the stated or alleged congenital condition.

He said: In my opinion, based on the worker’s noted vocation which required repetitive use of the right arm and shoulder that she would have been at increased risk for repetitive sprain injuries such as impingement and rotator cuff tendon no path he with or without her os acromiale. [emphasis added] [ 111 ] The Appeals Commission accepted part of his opinion on no congenital condition and discounted his opinion on causation about because they did not know what “vocation” was referred to. They reasoned that she had not been working since the date of the accident in 1998 and Ms.

Yuill gave oral evidence that she was unable to do activities such as cleaning floors, vacuuming, washing toilets, general housework, yardwork childcare and errands. Ms. Yuill stated that she had altered her activities and now relied on her partner and son and housekeeper to perform activities for her.

The Appeal Commission therefore found that there was “no compelling evidence to show the worker engages in repetitive activities that has resulted in injury to her right shoulder and neck.” [ 112 ] During the hearing, the Appeal Commission questioned counsel about why Dr Giantomaso used the term “vocation” when Ms Yuill had not been working. Counsel replied that he did not know why this term was used but that Ms Yuill was a home maker and mother during this time. Counsel also stated that Dr Giantomaso, as a treating physician, knew that Ms Yuill had not been in the paid labour force.

He thought the term vocation may simply be a reference to her unpaid labour as a homemaker and mother and argued that the evidence of the treating physician should not be discredited on the basis that he misunderstood the patient’s activities.

In my view the Appeal Commission over-emphasized this one word and exaggerated its ability to undermine his medical opinion. [ 113 ] Despite these examples of problematic findings, the Appeals Commission was entitled to receive reach the decision it did if Ms.Yuill failed to establish any one of the three necessary requirements to have her present injuries recognized as compensable.

In my view, their finding that there was an absence of causation can be supported by the evidence, even if they did not discount Dr Giantomaso’s opinion on the basis of his use of the term “vocation.” The Appeals Commission is permitted to choose between experts, especially when no one could assert a direct connection between the prior accident and her new symptoms. Some suggested the interposition of other conditions, such as a complex chronic pain syndrome, but a finding that causation was lacking was reasonable in the circumstances and on this record.

[ 114 ] Even on this basis alone, the decision of the Appeals Commission withstands judicial review on the reasonableness standard. iii. The Appeals Commission failed to consider Policy 04-03 and only focussed on Policy 03-01 [ 115 ] The Appeals Commission expressly noted that the DRDRB decided the matter under both Policies. At para 9.4, they acknowledge that counsel for Ms.

Yuill submitted that “the correct Policy is 04 – 03 as this is a recurrence of disability and the DRDRB should have considered this.” Further, the Appeals Commission questioned counsel at the hearing on this point and counsel made it clear that both Policies should be considered and both were in his materials. [ 116 ] The Appeals Commission only considered Ms. Yuill’s appeal using Policy 03-01, which states: WCB will determine whether an injury has occurred as a result of a compensable accident, and will adjudicate appropriate compensation and services from the date of the accident.

WCB may also consider a second injury compensable if it is the direct result of the original compensable injury. When determining its responsibility, WCB will evaluate the relationship between the injury and the compensable accident.

In second injury cases, WCB will evaluate the relationship between the original compensable injury in the second injury. [ 117 ] Second injury is defined as” a new and distinct impairment or disease occurring as a consequence of complication of a compensable injury.” [ 118 ] Second injuries may be compensable if they occur as a direct result of WCB approved medical rehabilitation treatment for a compensable injury or as a result of a weakened limb or failure of a prosthesis or appliance related to a compensable injury. [ 119 ] In interpreting Policy 03-01 the relationship between the injury and the compensable accident is further defined in 4.0.

It states that there are certain injuries, because of their progressive nature or less obvious relationship to employment, that require consideration of relevant factors both in and outside employment which may have contributed to her cause the injury. [ 120 ] Policy 04-03 states: The WCB will pay compensation when there is a recurrence of temporary disability due to a previous compensable disability from which a worker has apparently recovered. [ 121 ] Recurrence is defined as a clinically demonstrated increase in physical impairment or disability, resulting in temporary disability, which can be directly related to a previously stabilized compensable condition. [ 122 ] The Appeals Commission ought to have separately addressed this and advanced an alternative Policy or explained why they were not required to address it. [ 123 ] However, their findings of fact indicate that even had this alternative Policy been considered, they would have still found an absence of medical evidence establishing the necessary relationship between her right shoulder and neck pain and the initial compensable accident.

They found as a fact that her shoulder pain was caused by the rotator cuff injury when she lifted her child. Further, they found that her neck injury was not related to the original accident, but was the product of degenerative conditions. [ 124 ] Both Policies required proof of causation between the current problems and the compensable accident. A recurrence under Policy 04-03 needs to be due to a previous compensable injury and the second injury under Policy 03-01 needs to be as a consequence of complication of a compensable injury.

The finding of the Appeals Commission that there was no such causation answered the question under both Policies and ends the application. VI. Conclusion [ 125 ] In the result, the application is dismissed. Heard on the 7 th day of April and the 15 th day of June, 2016. Dated at Red Deer, Alberta this 30 th day of June, 2016. S.L. Martin J.C.Q.B.A.

Appearances: RaeAnn L. Yuill for Herself Chantal K. Cabaj for the Workers’ Compensation Board Dale P. Wispinski for the Appeals Commission of the Workers’ Compensation Board