Miller v Alberta (Appeals Commission for Alberta Workers’ Compensation), 2016 ABQB 79

Court of Queen ’ s Bench of Alberta Citation: Miller v Alberta (Appeals Commission for Alberta Workers’ Compensation), 2016 ABQB 79 Date: 20160208 Docket: 1501 04189 Registry: Calgary Between: Milton G. Miller Appellant - and - Appeals Commission WCB Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice K.D. Yamauchi _______________________________________________________ I.

Introduction [ 1 ] On October 16, 2013, a judge of this court (the “Reviewing Judge”) directed the Respondent Appeals Commission to reconsider one of its earlier decisions and provided directions on what it was to reconsider. Pursuant to the Reviewing Judge’s order, the Appeals Commission proceeded with a new Appeals Commission reconsideration threshold hearing. In Reconsideration Decision No 2014-0832 (the “2014 Decision”), the new Appeals Commission reconsideration threshold panel (the “New Threshold Panel”) that heard the matter found that the Appellant Milton G.

Miller had not established obvious and important errors of law that would have affected the Appeals Commission’s earlier decision so as to warrant reconsideration. Accordingly, the New Threshold Panel denied Mr. Miller’s application for reconsideration. Mr. Miller asks this Court to judicially review the 2014 Decision and direct that the Appeals Commission further reconsider its decision. II. Background [ 2 ] Mr. Miller suffered a back strain on February 8, 2007. In May of 2007, the Workers’ Compensation Board (“WCB”) decided that Mr.

Miller was fit for work because he had returned to his pre-accident level of employment. The WCB denied Mr. Miller's request for total temporary disability (“TTD”) benefits from February 9, 2007, to May 30, 2007, because he had refused the employer’s offer of suitable modified work. [ 3 ] A further hearing was held on the merits which dealt with the issue of whether Mr. Miller was entitled to receive TTD benefits. On November 20, 2009, the Appeals Commission issued Decision No 2009-1059, in which Mr.

Miller was awarded TTD benefits from February 9, 2007, to March 9, 2007, which the Appeals Commission found was the period when he was capable of modified work, but the employer had not offered same. The Appeals Commission determined that entitlement to TTD benefits ended when WCB advised Mr. Miller that the employer was prepared to offer him modified work. [ 4 ] Another hearing was held to deal with Mr. Miller's request for total partial disability (“TPD”) benefits and entitlement to

vocational services benefits. On December 22, 2011, the Appeals Commission issued its Decision No 2011-1160. The Appeals Commission determined that Mr. Miller was capable of full-time employment and, therefore, he was not entitled to receive TPD benefits. It held further that for Mr. Miller to be entitled to vocational services benefits, a worker must be entitled to benefits under

section 56 of the Workers’ Compensation Act , RSA 2000, c W - 15 [ WCA ], which included total or partial wage replacement benefits, such as TTD or TPD benefits. Because the Appeals Commission had determined that Mr. Miller was not entitled to those benefits, he could not be entitled to vocational services benefits. [ 5 ] Mr. Miller took no further action regarding any of the above decisions until he filed an application for reconsideration with the Appeals Commission in February 2012. [ 6 ] On August 23, 2012, the Appeals Commission issued its Decision No 2012-761.

In it, an Appeals Commission threshold panel denied Mr. Miller's application for reconsideration because it found no error of law, fact, or any unjust process in any of the previous decisions under review. [ 7 ] Mr. Miller applied for judicial review of Decision No. 2012-761, based primarily on his argument that the employer was not prepared to offer him modified work. In an oral decision issued on October 16, 2013, the Reviewing Judge said the following: With respect, this appears to be the flimsiest of evidence with respect to the offer of modified work. When confronted with Mr.

Miller's repeated denials that no modified work had been offered, and no written documentation had been produced, the decision of the Appeal [ sic ] Commission in this regard is under review, which will be respected if it is reasonable. In my view, it was not reasonable. The case notes of the WCB caseworker on one first conversation is barely worthy of note and amounts to an absence of evidence. To suggest that the Appeals Commission needs more evidence by suggesting Mr. Miller had the opportunity to ask the employer's representative has some merit.

However, as noted by the applicant, this is an inquiry system, not an adversarial system. The Appeals Commission should be requiring further confirmation by way of the forms that are part of the WCB procedures to confirm an offer of employment. I am not saying that they are required in all cases to require this level of information, however given the conflicting evidence before them, some inquiry along these lines should have been made. In the result, I find the approach of the Appeals Commission was not reasonable.

It is for the Appeals Commission to determine if they will require some written confirmation of the offer of modified work or in its absence, subpoena the employer with a notice to attend to confirm the offer of modified employment . That question should be referred back to the Appeals Commission for a reconsideration with a new panel. Transcript of Proceedings, October 16, 2013, p 33, ll 37-41, p 34, ll 1-14. [Emphasis added]. [ 8 ] As well, the Reviewing Judge ordered costs in favour of Mr. Miller.

The order arising from Reviewing Judge’s decision was filed on December 5, 2013 and stated: The Appeals Commission is directed to rehear the application for reconsideration of Decision 2009-1059 on the issue of whether or not modified work was offered to the Applicant. [ 9 ] Pursuant to the Reviewing Judge’s order, the New Threshold Panel conducted a reconsideration threshold hearing. On November 25, 2014, the New Threshold Panel issued Decision No 2014-0832. It found that Mr.

Miller had not established obvious and important errors of law that would have affected its Decision No 2009-1059, so as to warrant reconsideration. Accordingly, the application for reconsideration was denied. [ 10 ] Mr. Miller seeks judicial review of that decision. III. Discussion A. Legislation [ 11 ] Certain sections of the WCA will guide this Court in its analysis. For ease of reference, this Court has attached portions of those sections to its decision as Appendix A.

As well, WCA s 13.1(3) permits the Appeals Commission to “make rules governing the practice and procedure applicable to proceedings before it.” The Appeals Commission has made those rules in the form of Appeal Rules. This Court has attached the rules that are germane to the issues before it as Appendix B. [ 12 ] The Appeal Rules set out the procedure and requirements for parties requesting reconsiderations of Appeals Commission decisions. The Appeal Rules, among other things, provide for the following: (

a) on the application of a person with a direct interest in a decision made by the Appeals Commission, the Appeals Commission may reconsider a matter it has dealt with; (

b) a reconsideration application must first be referred to a "reconsideration threshold panel," which will consider whether the threshold test for reconsideration has been met; (

c) the threshold requirements for 2 types of reconsideration requests. The first is based on an alleged error (of fact, law, mixed fact and law, or jurisdiction) or unfair/unjust process. The second is based on new evidence; and (

d) if the threshold test is met, the reconsideration threshold panel refers the matter for a new hearing on the merits.

B. Nature of a Reconsideration Decision [ 13 ] A reconsideration threshold proceeding is not an appeal. Instead, it is a further review of a decision, in which the Appeals Commission considers whether the original decision reveals errors that warrant reconsideration. The threshold that the applicant must meet is a high one. The Appeals Commission must be satisfied that an otherwise final decision should be reopened due to an error that is sufficiently significant to outweigh the importance of decisions being final and the prejudice to any party of the decision being reopened. C.

The Reviewing Judge’s Decision [ 14 ] Mr. Miller argues that the Appeals Commission overruled and did not comply with the Reviewing Judge’s order, and questions whether this Court may render a decision that is contrary to what the Reviewing Judge ordered. [ 15 ] The argument that Mr. Miller presents is not so simple. This Court is provided guidance on how it should approach applications for judicial review of decisions that the Appeals Commissions render.

Rule 3.24 of the Alberta Rules of Court Alta Reg 124/2010 provides as follows: 3.24(1) If an originating applicant is entitled to a declaration that a decision or act of a person or body is unauthorized or invalid, the Court may, instead of making a declaration, set aside the decision or act.

(2) The Court may (

a) direct a person or body to reconsider the whole or any part of a matter, (

b) direct a person or body to reconsider the whole or any part of a decision if the Court has set aside the decision under subrule (1), and (

c) give any other directions it considers necessary.

(3) If the sole ground for a remedy is a defect in form or a technical irregularity, the Court may, if the Court finds that no substantial wrong or miscarriage of justice has occurred, despite the defect, (

a) refuse a remedy, or (

b) validate the decision made to have effect from a date and subject to any terms and conditions that the Court considers appropriate. [ 16 ] As well, WCA s 13.4 allows the court, on judicial appeal, the power to set aside the decision of the Appeals Commission, or any part of it, and refer the matter back for reconsideration in accordance with any directions it considers appropriate. [ 17 ] In Corlac Inc v Weatherford Canada Ltd , 2012 FCA 261 at para 18 , 440 NR 113, Dawson JA for the court said the following: The principle of stare decisis requires lower courts to follow the law as interpreted by a higher coordinate court.

In Canada (Commissioner of Competition) v. Superior Propane Inc. , 2003 FCA 53 , [2003] 3 F.C. 529 (Fed. C.A.), at paragraph 54 , this Court confirmed the perhaps obvious point that this principle applies equally to tribunals which must follow the directions given by a reviewing court.

On a redetermination, the duty of a tribunal, or a lower court, is to follow the directions of the reviewing court. [ 18 ] In Canada (Commissioner of Competition) v Superior Propane Inc. , 2003 FCA 53 , [2003] 3 FC 529, Rothstein JA, as he then was, for the majority, said the following: In order to determine whether the Tribunal, in its redetermination decision, failed to follow the directions of the Federal Court of Appeal, it is necessary to consider: 1. the relevant legislative scheme; 2. the relevant findings of the Tribunal in its original decision; 3. what the Court found to be in error in the Tribunal's original decision; 4. what the Court concluded and directed the Tribunal to do; and 5. whether the Tribunal, in its redetermination decision, did what it was directed to do by the Court. [ 19 ] It might be worthwhile to review the 2014 Decision in the light of Rothstein JA’s exhortation.

Appendices A and B provide the relevant legislative scheme. It is important to note that the Appeals Commission has exclusive jurisdiction to hear appeals involving decisions of the WCB, and to make its own rules, and reconsider its decisions. The Appeal Rules provide the framework within which the Appeals Commission must make its decision. [ 20 ] The original decision that was before the Reviewing Judge dealt with whether there were sufficient grounds to grant reconsideration of the Appeals Commission’s findings that Mr.

Miller was entitled to TTD benefits from February 9, 2007, to March 9, 2007, but not afterwards, and that he was not entitled to TPD benefits from March 9, 2007, to May 30, 2007 or vocational benefits. The Appeals Commission found insufficient grounds to grant reconsideration. Before the panel that made that decision, Mr. Miller submitted that the employer never offered modified work, and there was no documentary evidence that modified work was offered. In the decision

before the Reviewing Judge, the Appeals Commission found as follows: The worker representative argued forcibly that a modified work offer had never been made, supported primarily by his telephone conversation with the employer representative on November 29, 2011.

If we were to consider that telephone conversation new evidence, which we do not, it would not compel us to decide that the threshold test for new evidence had been met, for the following reasons: The information could have been obtained and presented at the original November 12, 2009 hearing, as the same employer representative participated in that hearing. The argument was presented to the second panel at the December 13, 2011 hearing, even though they declined to consider the argument on the basis of no jurisdiction.

Under the Appeal Rules 5.5(3) the telephone conversation would not be new evidence as it could have been presented at the first hearing, and in any event would not have been likely to have had an impact on the first panel's decision. The question of the offer of modified work was considered by the earlier panel which concluded the employer had made a satisfactory modified work offer as of March 9, 2007. That panel was satisfied that the requirements of policy and legislation had been met.

We can find no basis to support the assertion that the panel committed an error of law, error of fact, followed a process that was unfair or acted outside their jurisdiction. Therefore the threshold requirements as set out in Appeal Rule 5.5 have not been met. Decision No 2011-1160, paras 43-44. [ 21 ] Again, the issue before the New Threshold Panel that issued the 2014 Decision was not whether suitable modified work was offered and whether that would have an impact on the benefits to which Mr. Miller might be entitled.

The issue was whether the earlier Appeals Commission decision that engaged the question of an offer of suitable modified work contained errors sufficient to satisfy the threshold test for reconsideration established under the Appeal Rules. [ 22 ] The Reviewing Judge found that the evidence regarding the offer of modified work to be an error in the tribunal's original decision, and accepted the suggestion that more evidence on this point was needed. [ 23 ] The Reviewing Judge directed that it was for the New Threshold Panel “ to determine ” whether additional evidence would be required.

The Reviewing Judge’s order directed the Appeals Commission to rehear the application for reconsideration of its decision where it found that Mr. Miller was entitled to TTD benefits from February 9, 2007, to March 9, 2007, but not afterwards, on the issue of whether modified work was offered to Mr. Miller. [ 24 ] In its decision, as directed by the Reviewing Judge, the New Threshold Panel considered whether there were sufficient grounds to grant reconsideration of its previous decision on the issue of whether modified work was offered to Mr. Miller.

The New Threshold Panel followed the directions set out in the Reviewing Judge’s order. Further, in the context of the Appeal Rules relating to reconsiderations, that New Threshold Panel considered and commented on the Reviewing Judge’s statements regarding the evidence of modified work. [ 25 ] The principle of stare decisis requires that a tribunal follow the law as interpreted by a higher court. It is important to note that the majority of Reviewing Judge’s directive comments were focused on the evidence or lack of it, available to the threshold panel that issued original decision.

The Reviewing Judge did not touch on the statutory scheme for reconsiderations, how the applicable Appeal Rules ought to be interpreted, or how the threshold panel that issued the original decision was unreasonable when it interpreted and applied the Appeal Rules.

Therefore, very few of Reviewing Judge’s comments attracted the requirement of stare decisis . [ 26 ] Although this Court will discuss the standard of review later in its reasons, it is worthwhile to note that had the Reviewing Judge had before him the recent decision of the Alberta Court of Appeal in Boyd v JBS Foods Canada Inc , 2015 ABCA 380 [ Boyd ] he might not have directed a reconsideration to the New Threshold Panel. The Alberta Court of Appeal said that “It is not the role of the reviewing judge to reweigh the evidence for the Appeals Commission.

We agree that in so doing, it misapplied the requisite reasonableness standard”: Boyd at para 40 . [ 27 ] Accordingly, despite what Mr. Miller says, this Court finds that the New Threshold Panel, rightly or wrongly, followed the directions of the Reviewing Judge. D. Standard of Review [ 28 ] On a judicial review application, the reviewing court must determine the standard of review it must apply to the decision under review, relative to the issues involved in that decision.

In Dunsmuir v New Brunswick , 2008 SCC 9 at para 45 , [2008] 1 SCR 190 [ Dunsmuir ], the Supreme Court of Canada revised the standards of judicial review, which now comprise two standards, being correctness and reasonableness. The process of judicial review involves two steps. First, the court must ascertain whether the jurisprudence has already determined, in a satisfactory manner, the degree of deference it must accord the decision maker, having regard to a particular category of question.

Second, where the first inquiry proves unfruitful, the court must proceed to analyze the factors that make it possible to identify the proper standard of review: Dunsmuir at para 62 . [ 29 ] The Supreme Court of Canada stated that reviewing judges can usefully begin their analysis by determining whether the subject-matter of the decision before them for review falls within one of the non-exhaustive categories that Dunsmuir identified: Smith v Alliance Pipeline Ltd , 2011 SCC 7 at paras 24-26 .

In this case, Fish J said that: Under Dunsmuir, the identified categories are subject to review for either correctness or reasonableness. The standard of correctness

governs: (1) a constitutional issue; (2) a question of “general law ‘that is both of central importance to the legal system as a whole andoutside the adjudicator’s specialized area of expertise’” (Dunsmuir, at para. 60 citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63,[2003] 3 S.C.R. 77, at para. 62); (3) the drawing of jurisdictional lines between two or more competing specialized tribunals; and (4) a“true question of jurisdiction or vires” (paras. 58-61). On the other hand, reasonableness is normally the governing standard where thequestion: (1) relates to the

interpretation of the tribunal’s enabling (or “home”) statute or “statutes closely connected to its function, withwhich it will have particular familiarity” (para. 54); (2) raises issues of fact, discretion or policy; or (3) involves inextricably intertwinedlegal and factual issues (paras. 51 and 53-54). [30] The issues before this Court deal with none of the issues that Fish J identified as being subject to a standard of correctness.Accordingly, the issues before this Court attract a standard of reasonableness.

More particularly, in Gahir v Alberta (Workers'Compensation Board Appeals Commission), 2009 ABCA 59 at para 13, 1 Alta LR (5th) 290, 448 AR 135, the Alberta Court of Appealsaid the following concerning the standard of review of the Appeal Commission’s decisions: ... [T]he case law discloses that the following standards of review have been identified for reviewing decisions of the AppealsCommission: a. Findings of fact, credibility and mixed fact and law are reviewed for reasonableness: Alberta (Workers' Compensation Board) v.Alberta (Workers' Compensation Board Appeals Commission), 2005 ABCA 276, 51 Alta.

L.R. (4th) 237, 371 A.R. 318 (Alta. C.A.), (the"Davick" decision), at paras. 72-3; Chauvet v. Alberta (Workers' Compensation Board Appeals Commission), 2007 ABCA 155, 76 Alta.L.R. (4th) 242, 409 A.R. 17 (Alta. C.A.) at para. 20. b.

Interpretation of workers' compensation policies, and the application of policies to particular fact situations are reviewed forreasonableness: Buckley v. Entz Estate, 2007 ABCA 7, 71 Alta. L.R. (4th) 25, 401 A.R. 231 (Alta. C.A.) at para. 22. Whether a particularemployee is entitled to compensation, and the level of that compensation, generally falls into this category: Alberta (Workers'Compensation Board) v. Alberta (Workers' Compensation Board Appeals Commission), 2005 ABCA 235, 44 Alta. L.R. (4th) 13, 371A.R. 62 (Alta. C.A.) (the "Schumaker" decision) at paras. 25-27; Chauvet at paras. 20, 28. c. The

interpretation of sections of the Act lying within the expertise of the Board or the Appeals Commission are reviewed forreasonableness, as is the application of that law to particular fact situations: Pasiechnyk v. Saskatchewan (Workers' CompensationBoard), (SCC), [1997] 2 S.C.R. 890 (S.C.C.); Buckley at para. 33. d. True jurisdictional issues are reviewed for correctness: Lee v. Alberta (Workers' Compensation Board Appeals Commission), 2007ABCA 225, 79 Alta. L.R. (4th) 298, 417 A.R. 370 (Alta.

C.A.) at para. 18. [31] In Belkadi v Alberta (Appeals Commission for the Alberta Workers’ Compensation, 2013 ABQB 124, 555 AR 395[Belkadi], Moen J was dealing with a decision of a reconsideration threshold panel of the Appeals Commission.

Because, as here, shewas not dealing with any of the questions that would attract a correctness standard, she applied a reasonableness standard: Belkadi atpara 35. [32] The Supreme Court of Canada described “reasonableness” as follows: Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards ofreasonableness: 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 ofacceptable and rational solutions. A court conducting a review for reasonableness inquiries into the qualities that make a decisionreasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concernedmostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concernedwith whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

Dunsmuir at para 47. [33] Where the question is one of fact, discretion or policy, deference will usually apply automatically: Dunsmuir at para 51;Canada (Attorney General) v Mossop, (SCC), [1993] 1 SCR 554 at 599-600; Dr Q v College of Physicians andSurgeons of British Columbia, 2003 SCC 19, [2003] 1 SCR 226 [Dr Q] at para 29; Suresh v Canada (Minister of Citizenship andImmigration), 2002 SCC 1, [2002] 1 SCR 3 at paras 29-30.

Thus, questions of fact, discretion and policy, as well as questions where thelegal issues cannot be easily separated from the factual issues, generally attract a standard of reasonableness, while many legal issuesattract a standard of correctness: Dunsmuir at para 51. [34] In Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras12-16, [2011] 3 SCR 708, Abella J for the court said the following: ... [T]he notion of deference to administrative tribunal decision-making requires "a respectful attention to the reasons offered or whichcould be offered in support of a decision". ...

This, I think, is the context for understanding what the Court meant in Dunsmuir when it called for "justification, transparency andintelligibility". To me, it represents a respectful appreciation that a wide range of specialized decision-makers routinely render decisionsin their respective spheres of expertise, using concepts and language often unique to their areas and rendering decisions that are oftencounterintuitive to a generalist. That was the basis for this Court's new direction in C.U.P.E., Local 963 v.

New Brunswick Liquor Corp., (SCC), [1979] 2 S.C.R. 227 (S.C.C.), where Dickson J. urged restraint in assessing the decisions of specializedadministrative tribunals. This decision oriented the Court towards granting greater deference to tribunals, shown in Dunsmuir'sconclusion that tribunals should "have a margin of appreciation within the range of acceptable and rational solutions" (para. 47).

Read as a whole, I do not see Dunsmuir as standing for the proposition that the "adequacy" of reasons is a stand-alone basis for quashinga decision, or as advocating that a reviewing court undertake two discrete analyses — one for the reasons and a separate one for the

result ... It is a more organic exercise — the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes. This, it seems to me, is what the Court was saying in Dunsmuir when it told reviewing courts to look at "the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes" (para. 47).

In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show "respect for the decision- making process of adjudicative bodies with regard to both the facts and the law" ( Dunsmuir , at para. 48 ). This means that 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.

Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion ...

In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. [ 35 ] In other words, this Court must examine the Appeals Commission’s decision holistically and not try to parse portions of it to see if the outcome is reasonable: Construction Labour Relations v Driver Iron Inc , 2012 SCC 65 at para 3 , [2012] 3 SCR 405; Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp and Paper Ltd , 2013 SCC 34 at para 54 , [2013] SCR 458.

If the decision falls within the range of reasonable outcomes, this Court should not disturb it: ibid . [ 36 ] In the case at bar, the range of possible outcomes is narrow. The New Reconsideration Panel could either deny Mr. Miller’s application on the basis that the original decision did not meet the reconsideration threshold criteria set forth in the Appeal Rules, or send it for a rehearing on the basis that it did. They did the former, so its decision would fall within the range of possible outcomes. E.

The New Reconsideration Panel’s Decision [ 37 ] It might be worthwhile, at this stage to discuss the New Reconsideration Panel’s decision in some detail. Mr. Miller made the same arguments before the New Reconsideration Panel that he raised before the Reviewing Judge concerning the offer of modified work. He then made the same arguments before this Court. The New Reconsideration Panel outlined these arguments in the 2014 Decision at paras [14.1]-[14.15]. It then repeated the nature of a reconsideration threshold proceeding and its authority: 2014 Decision at para [16].

In particular, it said that it must consider “whether the decision reveals errors that warrant reconsideration of the original decision”: ibid . [ 38 ] It then outlined what the hearing panel had found, and the direction that the Reviewing Judge gave to it, when it said the following: The hearing panel approached the worker’s entitlement to the TTD benefit in two stages: First, the hearing panel determined the weight of medical evidence supported that the worker remained capable of performing suitable modified work notwithstanding the restrictions imposed by his compensable work injuries of back strain, neck strain and left index finger contusion.

Second, the hearing panel concluded the modified work offered by the employer as of March 9, 2007 was suitable, that is, it was consistent with the physical requirements and the worker’s physical and medical restrictions. As noted above, it is this second determination for which the Court directed a rehearing of the application for reconsideration. The Court’s Order of October 16, 2013 limits the present reconsideration threshold panel to that matter alone.

The decision in regards to the worker’s fitness for employment, as set out in paragraph 17 of Appeals Commission decision 2009-1059, is not open to review by this reconsideration threshold panel. 2014 Decision at paras [18]-[19]. [ 39 ] The New Reconsideration Panel then provided details of the evidentiary foundation upon which the Appeals Commission relied in the original decision, and how it fits within the WCB policies. It particular, it dealt with the conflicting testimony and the findings of the Appeals Commission.

It specifically dealt with the Reviewing Judge’s concerns that there was no written offer of modified employment and noted that the Appeals Commission had before it a letter in which the WCB advised Mr. Miller of the availability and nature of the modified work with the employer and found the following: As there is no requirement under the governing policy, Policy 04-05,

Part I and

Part II, Application 2, for the employer to provide a written offer directly to the worker, the absence of such documentation does not constitute an error that would affect the decision. 2014 Decision at para [22.4]. [ 40 ] The Reviewing Judge was also concerned that the Appeals Commission or WCB did not further investigate the nature and source of the employer’s offer.

To that, the New Reconsideration Panel responded by saying, “the presence of both the employer and the applicant at the hearing allowed the hearing panel the opportunity to fully understand the position of each, to confirm the information on file and to fill in any gaps in the evidence”: 2014 Decision at para [23]. [ 41 ] Mr. Miller also argues that the Appeals Commission failed to give sufficient weight and did not seek clarification from his physician.

To this, the New Reconsideration said the following: As shown in paragraphs 18, 19 and 20 of the November 20, 2009 Appeals Commission decision, the hearing panel’s consideration of the

family physician’s reporting was detailed and thorough as was its reasoning on the weight afforded the physician’s reporting.

Further,the family physician’s knowledge of the modified work offer is described in paragraph 28 of the decision. 2014 Decision at para [24]. [42] In other words, not only did the New Reconsideration Panel follow the Reviewing Judge’s direction, it went beyond andaddressed the very issues that were argued before the Reviewing Judge, and that were again argued before this Court. [43] In Belkadi at para 29, Moen J said the following: In 2001, Watson J. (as he then was) also considered this issue in a scenario that parallels Mr. Belkadi’s judicial review.

He concluded, onthe basis of Justice Veit’s analysis in Johannesson, that both an appeal and reconsideration application before the Appeals Commissionare final, rather than interim proceedings. That meant that a reconsideration decision does not ‘revive’ earlier decisions: paras 50, 58-59.Subsequent Alberta Court of Queen’s Bench decisions have followed this approach: Dilcox v. Alberta (Workers’ Compensation Board),2006 ABQB 596 , 2006 ABQB 596 at para 27; Nguyen v.

Alberta (Alberta Workers’ Compensation Appeals Commission), 2008ABQB 624 , 2008 ABQB 624 at para 30. [44] Moen J went on to say that permitting a reconsideration request to open up the merits of the original decision that was notchallenged on judicial review within the 6-month limitation period would defeat the purpose of limitation periods: Belkadi at para 28. [45] Similarly, in Flint Field Services v Alberta (Appeals Commission for Alberta Workers' Compensation), 2014 ABQB 382 atpara 32, 242 ACWS (3d) 757, Schutz J, as she then was, said the following: I am reviewing the Reconsideration Panel's Decision, only, not the Original Panel's decision which upheld the DRDB decision.

TheReconsideration Panel's Decision does not revive earlier decisions of the Appeals Commission… [46] The effect of the foregoing is that on judicial review of a reconsideration threshold decision, the most a reviewing court cando (if it finds the decision to be unreasonable) is to return it to the Appeals Commission to re-hear the reconsideration threshold issue.The court cannot say how the original panel should have decided the original decision and it cannot tell the reconsideration thresholdpanel that it should grant a re-hearing of the original panel's decision. [47] With the greatest of respect to the Reviewing Judge, this is exactly what he did by sending it back the New ReconsiderationPanel.

The Supreme Court of Canada said the following: The danger of labeling the most "deferential" standard as "reasonableness" is that it may be taken (wrongly) as an invitation to reviewingjudges not simply to identify the usual issues, such as whether irrelevant matters were taken into consideration, or relevant matters werenot taken into consideration, but to reweigh the input that resulted in the administrator's decision as if it were the judge's view of"reasonableness" that counts.

At this point, the judge's role is to identify the outer boundaries of reasonable outcomes within which theadministrative decision maker is free to choose. Dunsmuir at para 141. See also Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59, [2009] 1 SCR 339; Dr Q at para 16. [48] This Court earlier mentioned that had Boyd been decided when the case at bar was before the Reviewing Judge, he mighthave come to a different conclusion.

In Boyd, the reviewing court set aside the decision of the Appeals Commission and remitted it backfor reconsideration with the direction that it consider the worker's job demands during winter conditions in determining whether theworker's employment caused or contributed to his personal injury.

To the extent that expert medical opinion was required to perform thisanalysis, the reviewing court directed that the Appeals Commission seek updated medical opinions from the worker's treating physicians. [49] After reviewing the principles that this Court has outlined, the Alberta Court of Appeal said that the reviewing court “was defacto applying a correctness standard of review when it overtly examined and reweighed the factual evidence before the AppealsCommission”: Boyd at para 39. This is precisely what the Reviewing Judge did in this case.

The Alberta Court of Appeal went on to saythat “It is not the role of the reviewing court to reweigh the evidence for the Appeals Commission. We agree that in so doing, itmisapplied the requisite reasonableness standard” Boyd at para 40. The Alberta Court of Appeal concluded this portion of its discussionby saying the following: The reviewing court erred by reweighing and extrapolating evidence, failing to afford deference to the Appeals Commission on matterswithin its expertise, misapprehending the role of the Appeals Commission, and thereby failing to apply the reasonableness standard ofreview. Boyd at para 50.

IV. Conclusion [50] This Court finds that the New Reconsideration Panel provided a thorough analysis of the relevant Appeal Rules, the WCA,policy, evidence and arguments before it in determining whether the reconsideration threshold test was met. It reviewed the ReviewingJudge’s oral reasons for his decision and his directions, and followed them. The New Reconsideration Panel’s reasons in the 2014Decision shows a clearly visible line of analysis that reasonably leads to its conclusions and the conclusions fell within a range ofpossible, acceptable outcomes which were available to the panel.

Thus, its conclusions were reasonable and the decision-making processit took to reach its conclusions showed justification, transparency and intelligibility. [51] The 2014 falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

[ 52 ] Accordingly, this Court dismisses Mr. Miller’s application. Heard on the 26 th day of January, 2016. Dated at the City of Calgary, Alberta this 8 th day of February, 2016. K.D. Yamauchi J.C.Q.B.A. Appearances: Milton G. Miller Self-Represented Litigant Dale P. Wispinski Appeals Commission for the Respondent “Appendix A” 13.1(1) Subject to sections 13.2(11) and 13.4, the Appeals Commission has exclusive jurisdiction to examine, inquire into, hear and determine all matters and questions arising under this Act and the regulations in respect of (

a) appeals from decisions under

section 46 made by a review body appointed under

section 45, (

b) appeals from decisions under

section 120 made by a review body appointed under

section 119, (

c) appeals from determinations of the Board under section 21(3), and (

d) any other matters assigned to it under this or any other Act or the regulations under this or any other Act, and the decision of the Appeals Commission on the appeal or other matter is final and conclusive and is not open to question or review in any court.

(2) The chief appeals commissioner may authorize a panel of 2 or more appeals commissioners to act on behalf of the Appeals Commission under subsection (1) and that panel may exercise the powers of the Appeals Commission for that purpose.

(3) The Appeals Commission may make rules governing the practice and procedure applicable to proceedings before it.

(4) The Regulations Act does not apply to rules made under subsection (3).

(5) The Appeals Commission has the same powers as the Court of Queen’s Bench for compelling the attendance of witnesses and

examining them under oath and for compelling the production and inspection of books, papers, documents and things.

(6) The Appeals Commission may cause depositions of witnesses residing in or outside Alberta to be taken before any person appointed by the Appeals Commission in a manner similar to that prescribed by the Alberta Rules of Court .

(7) The Appeals Commission, at its discretion on the application of a person with a direct interest in the matter, or on its own motion, may reconsider any matter that it has dealt with and may confirm, rescind or amend any decision or order previously made by it.

(8) The Appeals Commission, at its discretion on the application of a person with a direct interest, may reconsider any appeal decision that was made by the members of the board prior to November 1, 1988 and may confirm, rescind or vary the decision.

(9) No proceedings by or before the Appeals Commission shall be restrained by injunction, prohibition or other process or proceedings in any court or are removable by certiorari or otherwise into any court, nor shall any action be maintained or brought against the Appeals Commission or any member of the Appeals Commission in respect of any act done or decision made in the honest belief that it was within the jurisdiction of the Appeals Commission. 13.2(1) A person who has a direct interest in and is dissatisfied with (

a) a decision under

section 46 made by a review body appointed under

section 45, (

b) a decision under

section 120 made by a review body appointed under

section 119, or (

c) a determination of the Board under section 21(3) may, in accordance with this section, the regulations and the Appeals Commission’s rules, appeal the decision or determination to the Appeals Commission.

(2) In considering an appeal from a decision under

section 46, the Appeals Commission shall consider the records of the claims adjudicator and the review body relating to the claim.

(3) In considering an appeal from a decision under

section 120, the Appeals Commission shall consider the records and information available to the review body relating to the matter under consideration.

(4) In considering an appeal from a determination of the Board under section 21(3), the Appeals Commission shall consider the records and information available to the Board relating to the matter under consideration.

(5) Where a decision or determination is appealed, the Board shall provide to the Appeals Commission (

a) the records and information, including personal information, relating to the claim or matter that is under appeal that are in the possession of the Board or the review body, and (

b) the written reasons for the decision or determination.

(5.1) For the purpose of subsection (5), the Appeals Commission is authorized to collect and use the records and information referred to in subsection (5).

(5.2) The Board may enter into an agreement with the Appeals Commission respecting the manner in which the records, information and reasons required to be provided under subsection (5) are to be provided to the Appeals Commission, including by electronic means.

(6) In the hearing of an appeal under this section, the Appeals Commission (

a) shall give all persons with a direct interest in the matter under appeal an opportunity to be heard and to present any new or additional evidence, (

b) is bound by the board of directors’ policy relating to the matter under appeal, (

c) shall permit the Board to make representations, in the form and manner that the Appeals Commission directs, as to the proper application of policy determined by the board of directors or of the provisions of this Act or the regulations that are applicable to the matter under appeal, (

d) may confirm, reverse or vary the decision or determination appealed, (

e) may direct that its decision be implemented within a specified time period, and (

f) may refer any matter back to the review body or the Board, as the case may be, for further action or decision, with or without directions.

(7) At the request of an affected person or the Board, the Appeals Commission may clarify any directions given in respect of a decision.

(8) The Appeals Commission shall not accept an appeal from a decision under

section 46 or 120 unless a written notice of appeal that complies with the regulations is received within one year from the date that the appropriate review body made its decision.

(9) Notwithstanding subsection (8), if the chief appeals commissioner, or the appeals commissioner to whom the chief appeals

commissioner delegates the chief appeals commissioner’s duties, considers there is a justifiable reason for a delay, that commissioner may extend, with or without conditions, the deadline set out in subsection (8).

(10) There is no appeal from a decision made under subsection (9).

(11) At any stage of the proceedings before it, the Appeals Commission may by application state in the form of a special case for the opinion of the Court of Queen’s Bench any question of law or jurisdiction arising in the course of the proceedings, and may adjourn the proceedings for that purpose. 13.4(1) The Board and any person who has a direct interest in a decision of the Appeals Commission made pursuant to

section 13.2 may appeal the decision to the Court of Queen’s Bench on a question of law or jurisdiction.

(2) An appeal must be commenced by application.

(3) An application must include a concise statement of (

a) the grounds on which the decision is being appealed, and (

b) the nature of the relief claimed.

(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).

(6) Where the appellant is a person other than the Board, the appellant must also serve a copy of the application on the Board.

(7) On being served with an application the Appeals Commission shall forthwith forward to the clerk of the Court (

a) the record of the proceedings before the Appeals Commission, which consists of (

i) the notice of appeal or other document that initiated the appeal before the Appeals Commission, (ii) all documents forwarded to the Appeals Commission under

section 13.2(5) that were considered by the Appeals Commission in reaching its decision, (iii) the evidence and all exhibits and other documents received by the Appeals Commission, and (iv) the decision of the Appeals Commission, with reasons, and (

b) a certificate stating that the record is true and complete.

(8) The Court may receive any further evidence that the Court considers is necessary in order to determine a question of law or jurisdiction.

(9) The Court may stay the operation of the decision being appealed until final disposition of the appeal.

(10) The Court may direct that any person be added or struck as a party and that the application be served on any other person that the Court considers appropriate.

(11) On the hearing of the appeal the Court may (

a) confirm or set aside the decision of the Appeals Commission or any part of it, and (

b) where it sets aside the decision, refer the matter back to the Appeals Commission for reconsideration in accordance with any directions the Court considers appropriate.

(12) If the Court finds that the only ground for appeal that is proven is a defect in form or a technical irregularity, and that no substantial wrong or miscarriage of justice has occurred, it may deny the appeal and confirm the decision of the Appeals Commission notwithstanding the defect or irregularity, and may order that the decision takes effect from the time and on the terms that the Court considers proper.

(13) The Court may make any award as to the costs of the appeal that it considers appropriate.

(14) An appeal from a decision of the Court under this

section lies to the Court of Appeal. “Appendix B” 5.1(1) In accordance with

section 13.1(7) and (8) of the Act, on application by a person with a direct interest in a decision made by the Appeals Commission, the Appeals Commission may reconsider a matter it has dealt with, including a question, issue, order, direction or

determination that the Appeals Commission has dealt with in a decision.

(2) The application must be made on the prescribed form and meet the time limitations of rule 5.2. [ Conditions on reconsideration applications ]

(3) The Appeals Commission may decide to reconsider a matter it has dealt with on its own motion. 5.2(1) Except when an application for reconsideration is made on the basis of new or unavailable evidence described in rule 5.5(4) [ Criteria for reconsideration ], a person may make an application under rule 5.1(1) [ Application for reconsideration ] only once in respect of a matter the Appeals Commission has dealt with.

(2) An application for reconsideration must be made to the Appeals Commission under rule 5.1 [ Application for reconsideration ] (

a) within 6 months of the date that the matter the subject of the application was decided, or (

b) in the case of an application based on new or unavailable evidence described in rule 5.5(3) [ Criteria for reconsideration ], within 6 months of the date the evidence was discovered or became available.

(3) The Appeals Commission will not accept applications to reconsider a decision made by a Reconsideration threshold panel (as defined in Rule 5.3). 5.3 An application for reconsideration under rule 5.1(1) [ Application for reconsideration ] by a person with a direct interest, or if the Appeals Commission wishes to reconsider, acting on its own initiative, involves two steps: (

a) First, the application or motion to exercise its own initiative must be referred to a panel of the Appeals Commission called the Reconsideration Threshold Panel to determine whether the threshold requirements are met; (

b) Second, if the threshold requirements are met, the Appeals Commission must

schedule a hearing on the merits of the appeal and the hearing is to be conducted afresh, as if no previous hearing had been held or decision made. 5.4 Before the Reconsideration Threshold Panel considers an application or motion every party, and the Board, must be given an opportunity to make representations on whether the threshold for reconsideration of an Appeals Commission decision has been met. 5.5(1) The Reconsideration Threshold Panel must review an application or motion for reconsideration and (

a) in the case of an application, decide whether the application is made in time, and (

b) decide whether the application or motion contains all of the information required by the prescribed form.

(2) The Reconsideration Threshold Panel will determine whether the threshold requirements for reconsideration under subrule (3) are met or subrule (4) applies.

(3) The threshold requirements for reconsideration are that the decision: (

a) Shows an error of jurisdiction; (

b) Shows an obvious and important error of law; (

c) Is based on a process that was obviously unfair or unjust.

(4) A decision may also be reconsidered if the Reconsideration Threshold Panel is satisfied that new evidence is now available or that evidence, not available on reasonable and justifiable grounds at the hearing, is now available, and that the evidence

(

a) is relevant to the decision, and (

b) is likely to have had an impact on the decision.