Cordeiro v Alberta (Appeals Commission for Alberta Workers’ Compensation), 2017 ABQB 22

Court of Queen’s Bench of Alberta Citation: Cordeiro v Alberta (Appeals Commission for Alberta Workers’ Compensation), 2017 ABQB 22 Date: 20170113 Docket: 1503 05106 Registry: Edmonton Between: Jose Cordeiro Plaintiff - and - The Appeals Commission for Alberta Workers' Compensation, the Workers’ Compensation Board and the Canadian National Railway Company Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Peter B.

Michalyshyn _______________________________________________________ Introduction [ 1 ] This is an application to review a decision of the Appeals Commission for the Workers’ Compensation Board. For reasons which follow the application is dismissed. Background [ 2 ] The appellant, Jose Cordeiro, sustained workplace injuries in an accident October 3, 2004. His dealings with the WCB and related entities have been long and at times complicated, or at least made complicated. [ 3 ] It is enough to pick up the chronology with the first involvement of the Appeals Commission in a decision of September 20, 2010.

The Appeals Commission had two issues before it. The first was whether the employer offered Cordeiro suitable modified employment after August 22, 2008. That issue was withdrawn by Cordeiro at the hearing. The second was whether Cordeiro was fit for full-time employment after August 22, 2008 until his retirement on April 1, 2009. That issue was determined in Cordeiro’s favour. The Appeals Commission found that he was not fit for a return to work to full-time duties from August 22, 2008 to April 1, 2009.

[ 4 ] The September 20, 2010 Appeals Commission acknowledged that Cordeiro was free to pursue a finding from the WCB that he was entitled to compensation for an alleged chronic pain condition. The Appeals Commission itself made no findings in that regard. [ 5 ] The September 20, 2010 Appeals Commission decision was followed by a further WCB decision of April 29, 2011. The issue on April 29, 2011 appeared to be Cordeiro’s suitability for part-time employment.

The WCB found that he was suitable, albeit not in Cordeiro’s pre-accident job as a car mechanic for CN Railways. [ 6 ] Through his agent, John Williams, Cordeiro appealed the April 29, 2011 decision unsuccessfully to the Dispute Resolution and Decision Review Body (the “DRDRB”), then to another panel of the Appeals Commission. The appeal was filed May 27, 2012. The letter comprising the appeal is some 10 pages and raises a number of issues.

The appeal was adjourned sine die, at Cordeiro’s request, as confirmed in WCB correspondence of June 14, 2012. [ 7 ] At around the same time, Cordeiro, through Williams, corresponded with the WCB by letter of February 19, 2012, regarding Cordeiro’s request that certain allegedly compensable conditions, other than soft-tissue in nature, be accepted for compensation. In a letter of March 7, 2012 the WCB denied acceptance of the additional conditions. [ 8 ] On Cordeiro’s behalf, Williams sought review of the March 7, 2012 decision in a Request for Review of February 22, 2013.

The request for review is backed up by Williams’ letter of February 20, 2013, together with an addendum letter of April 1, 2013. Taken together, the letters exceed 30 pages and raise a great many issues, including concerns with regard to the administration of the claim file, amongst other things. [ 9 ] The WCB responded to the February 20/April 1, 2013 letters in correspondence of April 15 and 18, 2013. The WCB advised Cordeiro that only three of the issues raised in his February 22/April 1, 2013 letters would be forwarded to the DRDRB.

These three issues were WCB responsibility for Cordeiro’s chronic pain complaints, for his “nerve damage” complaints, and for his request for a Home Maintenance Allowance. The WCB concluded that the balance of the issues raised on Cordeiro’s behalf had been addressed before the Appeals Commission in September, 2010 or, in the case of the many complaints comprising ‘unfair and unjust treatment’, were indeterminate, or outside the scope of the review in question. [ 10 ] A great number of further letters were then exchanged between Williams and the WCB during the spring/summer of 2013.

Amongst other things, Williams maintained that the WCB was improperly not forwarding his many outstanding complaints on Cordeiro’s behalf to the DRDRB. The WCB maintained that these outstanding complaints had either been addressed previously or, regarding Cordeiro’s many process issues (e.g., relating to fairness and timeliness, amongst other things) were beyond the DRDRB’s scope. By way of WCB correspondence in April/May, 2013 Cordeiro’s process concerns were forwarded to WCB management for review. [ 11 ] A date of June 10, 2013 was set to address the three substantive issues noted above.

In late May, 2013 Williams sought that date be postponed, in favour, he said, of an unfolding ‘administrative review’ which he hoped, on Cordeiro’s behalf, would resolve his many complaints about process. [ 12 ] Meantime, the Appeals Commission gave notice on July 9, 2013 of its concern for the passage of time of some six months since Cordeiro’s appeal of the issue of the calculation of a certain economic loss payment. It called on Williams to provide an explanation. That explanation came in Williams’ letter of July 25, 2013.

He sought a further delay in the appeal on the basis of the ongoing ‘administrative review’ and unresolved disagreement as to what additional issues were to be addressed by the DRDRB before then potentially coming before the Appeals Commission. The Appeals Commission agreed to abeyance the matter a further 6 months. [ 13 ] On January 22, 2014, following an in-person meeting on January 13, 2014, the DRDRB did issue a comprehensive 23-page decision arising from Cordeiro’s February 20/April 1, 2013 requests for review.

The DRDRB addressed Cordeiro’s “multiple issues and concerns” (summarized at pp 4-5), then limited its review to the three substantive issues of chronic pain, nerve damage, and the denial of a home maintenance allowance. The DRDRB upheld the WCB on the first two issues.

It reversed the WCB’s denial of a home maintenance allowance. [ 14 ] Cordeiro was content with the home maintenance allowance finding, but appealed the balance of the January 22, 2014 DRDRB decision to another panel of the Appeals Commission. [ 15 ] (Cordeiro also appealed what he says was a WCB decision made December 5, 2013; as will become apparent later in these reasons, I agree with the WCB that the December 5, 2013 letter was not in fact a ‘decision’ but rather was simply a letter providing information.) [ 16 ] The January 22, 2014 DRDRB had before it nine items for review, many of them stated in quite general terms. [ 17 ] The DRDRB noted, at page 4 of 23, that the WCB notified the applicant on April 18, 2013 that certain of his claims were outside the DRDRB’s scope because they had already been decided.

This is as more fully set out at pp 4-6 of the January 22, 2014 decision. As a result, the DRDRB concluded that it could decide only the issues of chronic pain, nerve damage, and home maintenance allowance. The impugned Appeals Commission decision [ 18 ] This most recent appeal to the Appeals Commission was first filed April 8, 2014, but was replaced five months later by a revised Notice of Appeal on September 10, 2014. The April 8, 2014 appeal documentation runs 87 pages, as does the September 10, 2014 revised Notice of Appeal.

Both are far-reaching, raising not fewer than 82 grounds of objection to actions taken by the DRDRB and others involved in or related to Cordeiro’s WCB claims.

[ 19 ] The appeal was heard October 21, 2014, and the Appeals Commission’s decision was given January 9, 2015.

A transcript of the October 21, 2014 proceedings reveals that in his many submissions before the Appeals Commission, Cordeiro’s agent, Williams, emphasized objections to the very constitution of the DRDRB, in support of his claims of bias and the like. [ 20 ] In its decision the Appeals Commission noted it is dealing with a preliminary matter arising from the appeal from the DRDRB decision a year earlier, on January 22, 2014. [ 21 ] The Appeals Commission noted that Cordeiro’s substantive appeal from the DRDRB decision regarding his alleged chronic pain and nerve damage remained adjourned sine die . [ 22 ] The January 9, 2015 Appeals Commission decision then dealt only with, at para 6: …the preliminary matter of the Appeals Commission’s jurisdiction to hear concerns raised by the worker that the DRDRB declined to address, any concerns regarding the constitution of the DRDRB, the processes, procedures and conduct of the WCB and DRDRB, the jurisdiction of the DRDRB, violations of provisions of the [ Workers’ Compensation] Act and the DRDRB decision of December 5, 2013. [ 23 ] The Appeals Commission quite fairly set out, at pp 3-5, Cordeiro’s position as advanced by his agent Williams.

It set out at para 10 those matters that the DRDRB “declined to address”, and why. At paras 12-14 it dealt with certain matters that on review, it concluded were outside its scope as having been decided, or were about to be decided by other Appeals Commission panels.

At paras 15- 17, it summarized Cordeiro’s 82 “matters” raised in objection to the DRDRB and WCB’s process, and thereafter dealt with its jurisdiction to address many of those matters. [ 24 ] At paras 21-22 the Appeals Commission stated that its jurisdiction was limited to what the January 22, 2014 DRDRB actually decided: The January 22, 2014 decision… does not include decisions on the alleged procedural errors, failings and omissions of the WCB and DRDRB as identified by the worker’s representative.

Therefore in accordance with the statutory requirement, the Appeals Commission does not have the jurisdiction to consider those matters on which the DRDRB did not render a decision. (para 22) [ 25 ] What’s more, at para 31 of its decision the Appeals Commission declined jurisdiction to rule on the alleged procedural errors, failings and omissions because they were not “compensation matters” under the legislation. [ 26 ] It is this preliminary decision which is the subject of this court’s review. Positions of the parties [ 27 ] The issues now to be decided were stated quite differently by Cordeiro’s agent Mr.

Williams when he appeared before the Appeals Commission itself. This was particularly so with regard to the since-abandoned challenge to the very constitution of the DRDRB. The issues now to be decided are summarized at paras 22 and 40 of Cordeiro’s brief filed by counsel May 6, 2016. They are: i. That the Appeals Commission held it did not have jurisdiction to consider procedural fairness issues in the face of contrary case authority; ii.

That the Appeals Commission held that a de novo hearing would cure any procedural flaws in previous decisions, regardless of the impact those procedural errors had on the substance of the appeal; iii. That the Appeals Commission declined to assert jurisdiction over the suitability of Cordeiro’s modified work (decided by the Appeals Commission of September 20, 2010) without considering whether they could consider any new evidence in that regard; iv.

And that the Appeals Commission declined to assume jurisdiction over all but two issues put before it on the basis that the DRDRB had declined to consider those issues, which was precisely the error that Cordeiro was asking to be reviewed by the Appeals Commission. [ 28 ] The WCB responded by arguing that Cordeiro’s request for review – whether an appeal or judicial review – is moot given the availability of a de novo hearing before the Appeals Commission.

The WCB relies not only on Martinson v Alberta (Workers’ Compensation Board, Appeals Commission) , 2005 ABQB 545 , [2006] WWR 450, and Lee v Alberta (Workers’ Compensation Board, Appeals Commission) , 2007 ABCA 225 , 417 AR 370, but as well on Brown’s text Judicial Review of Administrative Action in Canada (at 3:2370) and on McBride v Canada (Minister of Defence) 2012 FCA 181 , at para 45 , [2012] FCJ 747. [ 29 ] The Appeals Commission appeared largely to provide background and to address standard of review issues.

Standard of review [ 30 ] Cordeiro calls this application an appeal under s. 13.4 of the Workers’ Compensation Act RSA 2000 c W-15 (“the WCA”) or alternatively an application for judicial review, and in any event argues for a correctness standard of review based on what he says are questions of law. [ 31 ] To the extent this is an appeal, Cordeiro refers to ss 13.1 to 13.4 of the WCA , the material sections of which are potentially as follows:

Power of Appeals Commission 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. …

(7) The Appeals Commissi o n, 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. … RSA 2000 c W - 15 s12; 2002 c27 s7 Appeals 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. …

(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. … RSA 2000 c W - 15 s13; 2002 c27 s7 ; 2009 c53 s189 ; 2014 c18 s4 Appeal 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. …

(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. 2002 c27 s7 ; 2009 c53 s189 [ 32 ] The WCB makes no submissions on the question of standard of review. [ 33 ] The Appeals Commission acknowledges a correctness standard of review for “true jurisdictional issues”, but says the decision at issue, at least to the extent I am dealing with judicial review: …required the consideration of a complex factual situation, an

interpretation of the Appeals Commission’s powers under its home statute, and an application of the law to the facts. Accordingly, the Appeals Commission suggests that the appropriate standard of review is reasonableness. [ 34 ] Unquestionably the application before the court is rooted in the context of a long and complex series of decisions and objections to decisions since the 2004 workplace accident and the earliest 2010 Appeals Commission decision. On the other hand the

2014 application before the Appeals Commission is arguably quite narrow. To the extent it raises solely jurisdictional, and thus legalissues, the standard of review is correctness in the appeal or, alternatively, on judicial review. To the extent it raises issues of fact ormixed fact and law, the standard of review is reasonableness on judicial review, and reasonableness on the appeal: Alberta (Workers’ Compensation Board) v Buckley, 2007 ABCA 7 at para 33, 277 DLR (4th) 1.

Analysis Issues i, ii and iv [35] Of the four issues raised by Cordeiro and mentioned above, these three can be dealt with collectively in what follows. [36] The statutory powers of the Appeals Commission were interpreted in Martinson v Alberta, mentioned earlier. The core issuein Martinson was whether the then-initial review body (the CSRC) exceeded its jurisdiction by answering a question that was not beforeit. Macklin J concluded that it did exceed its jurisdiction, and that the Appeals Commission had the power to say so.

Martinson alsoconcluded however that the impugned CSRC decision could be addressed and potentially cured by an appeal to the AppealsCommission, which is a de novo proceeding. [37] Cordeiro agrees that a hearing before an appeal commission is a hearing de novo. [38] Cordeiro disagrees however with the limitation expressed in Martinson – and adopted by the Appeals Commission in thedecision under review – that, at least in the circumstances of Cordeiro’s case, the alleged issues of procedural fairness can be addressedin a de novo hearing. [39] Again, Cordeiro maintains that the Appeals Commission erred in refusing to consider anything not considered by the DRDRBitself.

He objects to the Appeals Commission’s finding, at para 31, that the many alleged procedural errors, failings, and omissions arenot compensation matters that a claims adjudicator may decide, and as such are not subject to review under s. 46 by a review bodyappointed under s. 45, of the WCA. [40] Compared to the broad sweep of Cordeiro’s objections, the breach of natural justice in Martinson was specific and quitelimited: again, the discrete issue in that case was whether the review body exceeded its jurisdiction by answering a question that was notbefore it. [41] One of the questions before me is whether Martinson opens the door to a broader, full-out review by the AppealsCommission of the many alleged procedural errors, failings and omissions of the DRDRB in this particular case. [42] These many alleged shortcomings are set out, ‘mostly’ – to paraphrase Cordeiro’s submission before the Appeals Commission– at his Appendix II, comprised of not fewer than 82 objections to process and merits of earlier proceedings before the WCB, theDRDRB, Millard Health, and the employer.

They are also summarized, accurately, at para 39 of the Appeal Commission’s decision, asbeing allegations of impartiality, conflict of interest, prejudice, bias, failure to apply WCB principles and policies, and failure to weighevidence properly. [43] Neither the WCA provisions nor authorities cited by Cordeiro, nor anything argued on his behalf, persuades me that theAppeals Commission erred in concluding it lacked jurisdiction to intervene ‘at large’ in the DRDRB’s process. I am not persuaded thatMartinson opens the door that wide.

More persuasive is the argument of counsel for the Appeals Commission, at paras 9-19, in supportof the conclusion reached by the Appeal Commission itself, that the WCA “…does not empower the Appeals Commission to supervisethe operational procedures and practices of the WCB”. [44] If I am wrong on the reach of the decision in Martinson, I am also not persuaded that the Appeals Commission erred when itconcluded that the alleged process faults may be addressed in a de novo hearing before another panel of the Appeals Commission. [45] In reaching its decision on this point, the Appeals Commission reasoned, correctly, that …the matters which [Cordeiro] alleges to be procedurally flawed are the substantive matters of acceptance of chronic pain syndrome andnerve damage… (at para 39) [46] This finding is a full answer to Cordeiro’s submission (at paras 33-38 of his Brief filed May 6, 2016) rooted in the decision inLee v Alberta, mentioned earlier.

Cordeiro relies on the following paragraph from Lee: [19] It may be that a de novo hearing by the AC can cure procedural problems resulting from a CSRC decision. See for exampleGramaglia v. Sunlife Trust Co. (1996), 1996 ABCA 222 , 187 A.R. 31 (C.A.), leave to appeal dismissed [1996] S.C.C.A. No.360, where this Court concluded that a judge hearing a de novo appeal from a master may correct oversights in the master’s judgment;and R. v. Dennis, (SCC), [1960] S.C.R. 286 at 290 which reached a similar result in a criminal law context and was citedwith approval in Galaxy Sports Inc. (Re.), 2004 BCCA 284 at para. 40.

This can only be accomplished, however, if the sameissue was heard on the merits by the AC. Put another way, a hearing is only de novo and capable of being curative if it adjudicates thematters alleged to be procedurally flawed. [47] Cordeiro argues that it was the procedural fairness failures in the DRDRB decision that resulted in only three of his manyissues being accepted for review. On the voluminous record before it, I am not persuaded that the Appeals Commission erred by findingotherwise.

Clearly, the Appeals Commission found as a fact that the context of the alleged procedural shortcomings is the still-adjournedtwo matters of substance – chronic pain and nerve damage. As such, I am not persuaded by the record and submissions before me that apanel of the Appeals Commission cannot or will not address the matters Cordeiro alleges to procedurally flawed.

[ 48 ] Finally, as alluded to earlier, I agree with the respondents’ submissions that what Cordeiro argues was a WCB decision made December 5, 2013 is in fact simply a letter providing information, and that the Appeals Commission was correct in reaching that conclusion at para 40 of its decision. Issue iii [ 49 ] It remains to deal with the third of the four issues raised in Cordeiro’s May 6, 2016 brief.

Again, it is that: the Appeals Commission declined to assert jurisdiction over the suitability of Cordeiro’s modified work (decided by the Appeals Commission of September 20, 2010) without considering whether they could consider any new evidence in that regard. [ 50 ] The objection is phrased somewhat differently elsewhere, where the Appeals Commission is faulted for: …not address[ing] the impact that any new evidence introduced by Cordeiro would have on whether those issues could be reviewed by the DRDRB and the Appeals Commission. [ 51 ] The question of the Appeals Commission’s obligation to consider new evidence is central to this ground for review.

It is relevant then to question what request was made of the Appeals Commission to consider new evidence, if any. I agree with the submissions of both respondents’ counsel who properly note that the Appeals Commission’s decision makes no reference to new evidence. Nor on a review of the transcript of the proceedings, is there any obvious reference to new evidence. Nor likewise is there any obvious such reference in the voluminous record. Nor finally is there any specific reference in Cordeiro’s May 6, 2016 brief filed in support of this application.

It is difficult therefore to sustain Cordeiro’s objection around ‘new evidence’ relating to his suitability for modified work when he apparently failed to express such concerns earlier in the proceedings. Conclusion [ 52 ] For these reasons, Cordeiro’s application is dismissed. If necessary, costs may be spoken to. Heard on the 27 th day of May, 2016. Dated at the City of Edmonton, Alberta this 11 th day of January, 2017. Peter B. Michalyshyn J.C.Q.B.A. Appearances: Edward R. Feehan & Erin Burton Duncan Craig LLP for the Plaintiff Jason J.J.

Bodnar Legal Services, Workers' Compensation Board of Alberta for the Defendant Dale P. Wispinski & Jay Williamson Appeals Commission, Workers' Compensation Board of Alberta For the Defendant