Gohmann v Alberta (Workers’ Compensation Board Appeals Commission), 2021 ABQB 269

Court of Queen’s Bench of Alberta Citation: Gohmann v Alberta (Workers’ Compensation Board Appeals Commission), 2021 ABQB 269 Date: 20210409 Docket: 2001 09185 Registry: Calgary Between: Douglas Gohmann Applicant - and - Appeals Commission of the Workers’ Compensation Board Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice O.P. Malik _______________________________________________________ I. Introduction [ 1 ] Mr.

Gohmann applies to have this Court judicially review a decision of the Appeals Commission of the Workers’ Compensation Board dated February 13, 2020. [ 2 ] On February 5, 2015, Mr. Gohmann suffered serious personal injuries when he was rear-ended in a motor vehicle collision. He was self-employed and carried on business as a pressure valve inspector. He had just completed a job in Edson, Alberta, and was returning to his hotel in Killam, Alberta. At the time of the accident, both Mr. Gohmann and the driver of the motor vehicle who struck him had Workers’ Compensation Board coverage. II.

Background [ 3 ] The workers’ compensation system provides workers who are injured in a workplace accident with a complete framework for the provision of compensation independent of any assessment of fault for the accident and the ability of the employer to pay. In exchange for guaranteed security of benefits, the worker agrees to give up the common law right to sue and seek higher damages.

This represents the “historic trade-off” that precludes workers who have Workers’ Compensation Board (“WCB”) coverage from pursuing the full extent of their damages in tort ( Buckley v Entz Estate , 2007 ABCA 7 at para 52 ). [ 4 ] This trade-off is codified in the Workers’ Compensation Act , R.S.A. 2000 c. W-15 (the “ Act ”), at sections 24 and 23 .

Section 24 states that compensation is payable to a worker who suffers personal injuries “by an accident”. Section 24(4) creates a presumption that unless the contrary is shown, a worker’s injuries that arise out of employment are presumed to have occurred in the course of employment and vice versa .

Section 23 states that where an accident entitles a worker to compensation under the Act , the worker has no cause of action in respect of those injuries.

[ 5 ] In determining questions of coverage, the WCB is guided by its policies which provide

interpretation to questions about coverage. There are two key WCB policies that apply to the WCB’s determination of Mr. Gohmann’s coverage: ● Policy 02-01,

Part I, Policy and

Interpretation, issued April 1, 2014 ● Policy 02-01,

Part II, Application 3: Travel, issued April 6, 2010 [ 6 ] Relevant excerpts from Policy 02-01,

Part I, Policy and

Interpretation, state the following: To be considered compensable, an accident must meet two conditions: it must arise out of and occur in the course of employment. When the WCB is notified of an accident, it initiates inquiries to obtain all relevant evidence, and adjudicates the eligibility of the claim based on the weight of that evidence. If, after gathering all the available evidence, it is clear that one of the conditions is met but there is insufficient evidence on which to base a decision regarding the second condition, the statutory presumptions contained in s. 24 of the Act will apply.

Accident “Accident is used in the usual and ordinary sense, and means an unexpected mishap or event... The meaning of accident is satisfied when it can be shown that a worker’s employment has contributed to a personal injury... Arises out of Employment An accident arises out of employment when it is caused by some employment hazard... Occurs in the Course of Employment An accident occurs in the course of employment when it happens at a time and place consistent with the obligations and expectations of employment.

Time and place are not strictly limited to the normal hours of work or the employer’s premises, however, there must be a relationship between employment expectations and the time and place the accident occurs. Evidence Evidence includes accident reports, witness reports, medical information...as well as any other facts relevant to the accident.

Statutory Presumptions When determining eligibility of an injury, the WCB normally bases its decision on the weight of the evidence...The statutory presumptions of s. 24 of the Act are included so workers will be compensated in cases where one condition of compensability (either “arises out of” or “occurs in the course of” employment) is met, but there is insufficient evidence to determine the status of the second condition.

Section 24 of the Act contains the provision that when one of the conditions is met, the other is presumed, unless the contrary is shown. [ 7 ] Policy 02-01

Part II, Application 3: Travel, follows a question-and-answer format to explain when a worker is covered. Here are relevant excerpts: 1. Under what circumstances are workers covered while travelling? Accidents that happen during travel must arise out of and occur in the course of employment. Travel occurs in the course of employment when travel is under the direction of the employer either specifically or as an expected part of the work duties. 2. How does the WCB determine that travel is under the direction of the employer?

To determine whether travel is under the direction of the employer, the WCB looks at the purpose of the travel, whether the travel is part of the job requirement, and the degree of the employer’s control of the travel. .......... 4. Is payment for travel a factor? Payment for travel may in some circumstances be a factor in determining whether the travel is under the direction of the employer. However, although payment may be an indicator, the primary factor is the purpose of the trip. 5. Is travel to and from the worksite covered?

Travel is not considered to be at the direction of the employer simply because the worker is expected to be at work. Therefore, workers are not covered during routine travel to and from the worksite when there are no employment obligations or duties associated with the travel, regardless of any remuneration the worker may receive for the travel. Travel to and from the worksite is only covered when it is under the direction and control of the employer such as when:

........ ● workers are required to drive company vehicles to and from the worksite for a work-related purpose such as to protect the contents or be available for service calls, etc. ● workers are required to make an unexpected or special journey to the jobsite due to an emergency such as fire, flood or robber or some other unusual reason. In these situations, the workers are covered continuously from the time they leave their residences until, having dealt with the situation, they return home.

The only interruption to the continuous coverage is if the worker leaves employment by an activity that is distinctly personal. ........ 7. What is covered while a worker is travelling? Coverage begins when the worker begins the work-related travel and continues throughout the trip, unless the worker makes a distinctly personal departure that removes the worker from the course of employment. ........ 11. Are workers covered while travelling to take up employment at a distant location? Coverage is extended to workers while travelling to take up employment at a distant location when:

a) The worker has been assigned or has accepted an offer of employment and

b) The distance from the worker’s home to the job is such that the worker must temporarily reside at the job location; and

c) The employer has made a commitment to pay for the travel time or expenses. In these cases, the initial trip to begin the job and the return journey at the conclusion of the job are considered to be part of the employment contract and the worker will be covered while travelling directly to and from the distant worksite. ........ Once a worker establishes a temporary residence at the distant work location, that worker does not have coverage while occupying the temporary residence, nor for routinely commuting between the temporary residence and the worksite.

This applies regardless of the worker’s choice of a temporary residence (e.g. trailer, motor home, motel, hotel or private residence) and even if the worker is paid a living allowance, as the worker is not considered to be under the employer’s control while occupying the temporary residence. For example, a worker is living in Red Deer to travel to a rig site in Northern Alberta for a three-month stay. For the duration of the project, the worker temporarily lives at the job location. The worker may live in his own accommodation such as a trailer or a motor home, or the worker may choose to stay in a hotel.

In either case, the worker has temporarily relocated and is not considered to be under the direction of the employer while staying in the accommodation. III. Facts and Procedural History [ 8 ] The procedural history in this matter is somewhat lengthy. However, it can be summarized in the following way. a. The WCB Accepts Mr. Gohmann’s Claim: The WCB’s Acceptance Decision [ 9 ] Mr. Gohmann’s claim for WCB coverage was initially accepted by a WCB adjudicator on February 25, 2015 (the “Acceptance Decision”). In a letter to Mr. Gohmann, the WCB adjudicator referenced Policy 02-01,

Part I, Policy and

Interpretation, and explained that for a claim to be work-related, it must arise out of, and occur in the course of employment. The WCB adjudicator stated that in accepting Mr. Gohmann’s WCB claim, the adjudicator had reviewed medical documentation and information that Mr. Gohmann had provided about the circumstances of the accident: that the motor vehicle collision occurred while Mr. Gohmann had completed a work visit and was driving back from a job site to his hotel. b. Mr. Gohmann Asks the WCB’s Dispute Resolution and Decision Review Body to Review the Acceptance Decision [ 10 ] For Mr. Gohmann, the Acceptance Decision was consequential because

section 23 of the Act precluded him from pursuing a damages claim for his injuries. Consequently, on October 19, 2015, he requested that the WCB’s internal review body, the Dispute Resolution and Decision Review Body (“DRDRB”), review the Acceptance Decision. [ 11 ] Mr. Gohmann’s position was that contrary to Policy 02-01

Part I, Policy and

Interpretation, the accident had not arisen during or in the course of employment, nor had it occurred at a time and place consistent with the obligations and expectations of employment. Mr. Gohmann argued that in accordance with Policy 02-01,

Part II, Application 3: Travel, he was routinely commuting from Edson to Killam for which he was being paid to travel. Further, Mr. Gohmann removed himself from the course of employment on his drive back to Killam when he stopped for a nap and helped a motorist get out of the ditch. The accident therefore arose when Mr. Gohmann was on his personal time.

[ 12 ] On October 29, 2015, Mr. Gohmann was advised that the Acceptance Decision did not provide an “...explanation or evaluation of the WCB Policy used to accept the claim and reasons why. The details of the travel, employment circumstances and how it fit with Policy 02-01,

Part II, Application 3: Travel were not outlined or explained.” In the result, Mr. Gohmann’s file was referred back to WCB’s customer service department to “gather the relevant information about Mr. Gohmann’s job circumstances and his travel on the date of the accident”. c. The WCB Reverses the Acceptance Decision and Denies Mr. Gohmann’s Claim [ 13 ] On February 9, 2016, the WCB reversed the Acceptance Decision (the “Reversal Decision”) due to “administrative error”. The WCB found that Mr.

Gohmann’s hotel in Killam was a “temporary residence at a distant work location” and that travel to and from Killam to Edson should therefore be considered “routine commuting” which is not subject to WCB coverage. In its letter, the WCB cited question and answer #11 of Policy 02-01,

Part II, Application 3: Travel, to support its conclusion. [ 14 ] This was the decision Mr. Gohmann hoped for and he served a personal injury action on the driver who had collided with him. d. The Other Driver’s Insurer Asks the DRDRB to Review the Reversal Decision [ 15 ] Upon finding about Mr. Gohmann’s lawsuit, the other driver’s insurer asked the DRDRB to review the Reversal Decision. The WCB allowed the insurer’s request and invited the insurer to submit new evidence regarding the accident. The insurer submitted a recorded interview between Mr.

Gohmann and the insurer’s adjuster on March 20, 2015, which the insurer claimed was inconsistent with the information the WCB had before it when it rendered the Reversal Decision. e. The DRDRB Restores the Acceptance Decision [ 16 ] On March 6, 2018, the DRDRB rendered its decision. The DRDRB set aside the Reversal Decision and confirmed the Acceptance Decision. [ 17 ] The DRDRB found the following facts: • Mr. Gohmann was self-employed. He normally resided in Calgary. He worked as a pressure valve inspector and travelled extensively throughout Alberta to perform inspections of gas plants; • On February 3, Mr.

Gohmann checked into a hotel in Killam. He was booked to stay there for about two weeks so he could complete work in the Killam area. During his stay at the hotel, he received a rush order for a job near Edson on February 5. Originally, Mr. Gohmann had planned to spend time with his girlfriend on February 4 with Mr. Gohmann returning to work on Feb 7 until Feb 14. However, because of the Edson job, they agreed that they would spend time together when Mr. Gohmann returned to Killam on Feb 5 and would spend the next day together as well, with Mr. Gohmann returning to work on February 7; • The purpose of Mr.

Gohmann’s temporary residence in Killam was so that he would be closer to his work in the Killam area, given that Calgary is a three-hour drive from Killam; • It took Mr. Gohmann four and a half hours to travel from Killam to Edson on February 5. Mr. Gohmann’s temporary residence in Killam was not related to the Edson job as it would have been shorter for him to travel directly to Edson from Calgary; • While Mr. Gohmann’s deviations from his return from Edson to Killam removed him from the course of employment, he resumed his employment duties once those had occurred and he was driving back to Killam; • Mr.

Gohmann’s return trip from Killam to Edson was not routine commuting and was, other than the time taken during the deviations, work related; and • Since Mr. Gohmann’s travel was work related, the fact that he billed for his travel was not material. [ 18 ] The DRDRB did not consider that Mr. Gohmann’s interview on March 20, 2015, was new evidence that had any impact on its decision. [ 19 ] In its decision, the DRDRB provided a

summary of how it understood Policy 02-01,

Part II, Application 3: Travel, applied: “Policy 02-01 explains that a claim is acceptable when a worker suffers potential disablement while in the course of his or her employment and the injury or condition is a result of his or her employment.

Part II, Application 3 of Policy 02-01 states travel occurs in the course of employment when it is under the direction of the employer either specifically or as an expected part of the work duties. To determine this, WCB looks at the purpose of the travel and the degree of the employer’s control over the travel. Ownership of the vehicle or payments for travel is not generally relevant...Policy also specifies that workers are generally not covered for personal travel or travel during a time a worker makes a substantial deviation from the most direct business route.

Workers are covered for their initial trip and return journey (from home to work location) when they have to establish a temporary residence at a distant work location. Routine commuting from temporary residence to the worksite is not covered. In situations where the worker has to make a special or unexpected journey to worksite due to an emergency such as fire, flood or robbery, or some other unusual reason, the Policy allows for coverage from time workers leave their residences until, having dealt with the situation, they return home.” f. Mr. Gohmann Asks the DRDRB to Re-consider Its Decision

[ 20 ] On March 5, 2019, Mr. Gohmann asked the DRDRB to re-consider its March 6, 2018, decision on the basis that he had new evidence the DRDRB should consider. Mr. Gohmann’s new evidence consisted of a statement from his girlfriend which stated that she had travelled from Killam (not Calgary, as previously reported) to the Drayton Valley Hospital where Mr. Gohmann was recovering following the accident. In his view, this demonstrated that his return trip to Killam was of a personal nature, to spend with his girlfriend, and not in the course of his employment duties. [ 21 ] Mr.

Gohmann stated that his work required him to travel several hours per day either from a temporary residence or from his home. The distance of the return trip from Killam to Edson was not excessive given that he travelled an average of 5,000.00 kilometres per month. He submitted a travel map from February 3 to show that his commute for that day alone was 377 kilometres each way. [ 22 ] Mr. Gohmann’s employer provided a statement to show that while Mr. Gohmann had previously characterized the Edson job as a “rush job”, it was a routinely occurring service call that Mr.

Gohmann wanted to complete prior to commencing his parenting time in the last two weeks of the month. [ 23 ] Finally, Mr. Gohmann argued that the transcript of his interview on March 20, 2015, should be removed from the WCB record as it was taken shortly after the accident when Mr. Gohmann was cognitively impaired. [ 24 ] On June 20, 2019, the DRDRB denied Mr. Gohmann’s request for reconsideration of its March 6, 2018, decision. The DRDRB found that the information Mr.

Gohmann wished to submit did not meet the WCB’s requirements for new evidence as the information was neither material not substantive: • The girlfriend’s statement was not substantive because Mr. Gohmann had already indicated that his plan was to spend February 5 with her; • As for Mr. Gohmann’s mis-characterization of the “rush job” in Edson, the DRDB disagreed that while the Edson job was a normally occurring service, it could also not be described as a rushed or emergency activity.

The Edson trip was, as the DRDRB concluded, “an extra, unplanned service which came up unexpectedly and needed to be completed on a priority basis”; and • While the DRDRB acknowledged that Mr. Gohmann’s job required him to travel around Alberta for work, it concluded that his temporary residence in Killam was for the purpose of conducting jobs in the Killam area. g. Mr. Gohmann Appeals the DRDRB’s Decision to the Appeals Commission [ 25 ] Mr.

Gohmann appealed the DRDRB’s decision to the Appeals Commission. [ 26 ] Pursuant to section 17(1) of the Act , the WCB possesses the sole authority to determine all questions and matters that arise under the Act subject only to the jurisdiction of the Appeals Commission to hear appeals. The Appeals Commission is the final level of appeal for matters related to the WCB. It functions separately from the WCB and it reviews decisions made by the DRDRB. [ 27 ] The appeal proceeded on a documents-only basis. The appeal was heard on January 29, 2020. The Appeals Commission considered submissions made by Mr.

Gohmann, his representative and the other driver’s insurer. The Appeals Commission rendered its decision on February 13, 2020. [ 28 ] The central issue before the Appeals Commission was whether Mr. Gohmann was in the course of employment at the time of the accident. [ 29 ] Mr. Gohmann and his employer (Mr. Gohmann as he was self-employed) argued that: • at the time of the accident, Mr. Gohmann was routinely commuting. It was not unusual for Mr. Gohmann to travel long distances for work.

While he had established a temporary residence in Killam for the purpose of conducting work in the Killam area, the Edson job was routine as his employment often required him to attend to a customer’s request to perform a one-off job; • his trip back from Edson to Killam was not in the course of employment but was for personal reasons, to spend time with his girlfriend; and • the Edson job was not for an emergency or other unusual reason. Mr. Gohmann was in charge of his own

schedule and chose to complete the Edson job when he did. Most of Mr. Gohmann’s work comes from a single client and it was routine for him to attend to the client’s one-off requests ahead of long-term work. [ 30 ] The insurer’s submissions were: • As Mr. Gohmann was both worker and employer, Mr.

Gohmann was under the employer’s direction when the accident occurred as it was a requirement of his job that he travel and attend worksites at the customer’s request; • The four-and-a-half-hour trip to Edson from Killam does not constitute routine commuting and was not for personal reasons; and • The Edson job was a rush job which Mr. Gohmann had not anticipated when he established his temporary residence in Killam. [ 31 ] In arriving at its decision, the Appeals Commission considered question and answer #1 of Policy 02-01,

Part II, Application 3: Travel, which addresses WCB coverage during a worker’s travel: Accidents that happen during travel must arise out of and occur in the course of employment. Travel occurs in the course of employment when travel is under the direction of the employer either specifically or as an expected part of the work duties.

[ 32 ] The Appeals Commission found that Mr. Gohmann was in the course of employment at the time of the motor vehicle accident: • The reason Mr. Gohmann established a temporary residence in Killam was to carry out work in the Killam area; • Mr. Gohmann was under his employer’s direction when he travelled from Killam to Edson. He had no other reason to make the trip to Edson but for the employer’s direction that he go there to complete the specific job at the client’s request; • Mr.

Gohmann’s one-off trip from Killam to Edson was not routine commuting given it would have taken him less time to travel to Edson directly from Calgary; • The job in Edson was not for an emergency or some other unusual reason but was done at the direction of his employer in response to the client’s specific request; • Mr. Gohmann’s return trip to Killam was not for purely personal reasons. While he had planned to spend some time with his girlfriend upon his return, he was intending to resume his work in the Killam area on February 7; and • Mr.

Gohmann’s deviations on his travel back to Killam did not remove him from his course of employment and in any event, transpired prior to the accident. [ 33 ] With respect to Mr. Gohmann’s application to exclude the transcript of the March 20, 2015, interview, the Appeals Commission found that it did not have the statutory authority under the Act to exclude information or evidence from the WCB claims record. In any event, the Appeals Commission stated that it did not place substantive weight on the transcript and that it focused instead on the parties’ submissions. IV. Issues [ 34 ] Mr.

Gohmann argues that the Appeal Commission’s decision is unreasonable in two respects: 1) The Appeals Commission failed to properly consider the circumstances of Mr. Gohmann’s employment when it concluded that he was not routinely commuting at the time of the accident; and 2) The Appeals Commission unreasonably refused to exclude Mr. Gohmann’s March 20, 2015, interview. V. Standard of Review [ 35 ] The parties agree that Mr. Gohmann’s application for judicial review does not involve a statutory appeal concerning a question of law or jurisdiction pursuant to

section 13.4(1) of the Act and that the applicable standard of review is reasonableness, as articulated by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 . [ 36 ] In conducting a reasonableness review, Vavilov requires a court to exercise judicial restraint and to recognize the “distinct role” of the administrative decision maker ( Vavilov at para 75 ). The reviewing court must focus “on the decision actually made...including both the decision maker’s reasoning process and the outcome” ( Vavilov at para 83 ).

Reasonableness, “...is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” ( Vavilov at para 86 ). A reviewing court “must begin its inquiry into the reasonableness of a decision by examining the reasons provided with “respectful attention” and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion” ( Vavilov at para 84 ). [ 37 ] The reviewing court’s task is not to reweigh and reassess the evidence ( Vavilov at para 125 ).

The reviewing court should not “ask what decision it would have made in place of that of the decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct solution to the problem” ( Vavilov at para 83 ). [ 38 ] A decision that is reasonable is “based on reasoning that is both rational and logical ( Vavilov at para 102 ).

The reasonableness review is not concerned with a “line-by-line treasure hunt for error” but rather, “must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic and it must be satisfied that there is [a] line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived” ( Vavilov at para 102 ). [ 39 ] A decision is reasonable when it accords with the applicable law and facts.

These include “...the governing statutory scheme; other relevant statutory or common law; the principles of statutory

interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the submissions of the parties; the past practises and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies” ( Vavilov at para 106 ). [ 40 ] A reviewing court should assess the decision maker’s written reasons in the light of the history and context and proceedings, considering the decision maker’s specialized knowledge, institutional expertise and experience ( Vavilov at para 93 ).

In that regard, a review should not assess the decision maker’s reasons against a standard of perfection and must be sensitive to the fact that the reasons may not “include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred” ( Vavilov at para 91 ). [ 41 ] This does not simply mean that a reviewing court should simply accept the decision that is being challenged. Rather, the reviewing court must engage in a “sensitive and respectful, but robust evaluation of administrative decision” ( Vavilov at para 12 ) which

is intended to ensure “that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process ( Vavilov at para 13 ). A reviewing court may set aside a decision where “there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency” ( Vavilov at para 99 ). [ 42 ] Mr.

Gohmann bears the burden of proving that the decision of the Appeals Commission is unreasonable ( Vavilov at para 100 ). [ 43 ] I now turn to the grounds on which Mr. Gohmann advances his application for judicial review. VI. Analysis 1. Did the Appeals Commission Fail to Properly Consider the Circumstances of Mr. Gohmann’s Employment When it Concluded that He was Not Routinely Commuting at the Time of the Accident? [ 44 ] While the parties did not submit an Agreed Statement of Facts for the Appeals Commission to consider, it does not appear that the facts in issue are disputed. [ 45 ] On February 3, Mr.

Gohmann left his home in Calgary and checked into a hotel in Killam. His reason for doing so was to be closer to the work that he had scheduled in the Killam area given that the drive from Calgary to Killam is three hours. [ 46 ] On February 4, Mr. Gohmann’s employer received a call from a client for a job that the client wanted completed in Edson on February 5. According to Mr. Gohmann, the job was a routine inspection and did not involve an emergency or other unusual reason. Mr. Gohmann’s employer accepted the job. Mr.

Gohmann originally characterized the Edson job as a “rush job” but that was because he wanted to get the work done so that he could spend some time with his girlfriend who was driving up to join him in Killam from Calgary. Mr. Gohmann’s plan was to spend the afternoon of February 5 and the next day with his girlfriend before returning to work on February 7. The accident occurred during Mr. Gohmann’s drive back from Edson to Killam. [ 47 ] Question-and-answer #5 of Policy 02-01,

Part II, Application 3: Travel, states: Is travel to and from the worksite covered? Travel is not considered to be at the direction of the employer simply because the worker is expected to be at work . Therefore, workers are not covered during routine travel to and from the worksite when there are no employment obligations or duties associated with the travel , regardless of any remuneration the worker may receive for the travel.

Travel to and from the worksite is only covered when it is under the direction and control of the employer such as when : ........ ● workers are required to drive company vehicles to and from the worksite for a work-related purpose such as to protect the contents or be available for service calls, etc. ● workers are required to make an unexpected or special journey to the jobsite due to an emergency such as fire, flood or robber or some other unusual reason. In these situations, the workers are covered continuously from the time they leave their residences until, having dealt with the situation, they return home.

The only interruption to the continuous coverage is if the worker leaves employment by an activity that is distinctly personal. (emphasis is mine) [ 48 ] Question-and-answer #5 addresses whether a worker’s travel to a worksite is under the employer’s direction and control such that it is covered by the WCB. Routine travel to a worksite is not considered to be under the employer’s direction when there are no employment obligations that arise out of the travel.

Travel to and from the worksite is only covered when it is under the direction and control of the employer. [ 49 ] Question-and-answer #5 provides examples such as when a worker’s travel to a worksite is considered to be under the employer’s direction: a worker who takes an employer-provided or operated bus to the worksite; a worker who can only reasonably access the worksite by travelling on a road that the employer owns, leases, or has permission for workers to use; a worker who is required to drive company a vehicle for a work-related purpose such as carrying out a service call; or a worker who must attend the worksite for an unexpected or special reason such as an emergency, fire, flood or robbery or for some unusual reason.

The list of examples is not closed. Each case will depend on its unique set of facts. There will be other cases where a worker’s travel to a worksite may not fit neatly into any of these examples but that would, when viewed contextually, fall under the employer’s direction and control. [ 50 ] In my view, the Appeals Commission’s decision that Mr. Gohmann’s return trip from Killam to Edson was at the employer’s direction and control is reasonable in the circumstances. The employer’s acceptance of the client’s request required Mr.

Gohmann to make several changes to his plans: first, to adjust the personal time he had planned to spend with his girlfriend, and second, to make the unplanned trip to Edson on February 5, a considerable distance from his temporary residence and work in Killam and the Killam-area. [ 51 ] Mr. Gohmann’s argues that as a self-employed worker he made his own decisions about whether to accept the Edson job and that he was at liberty to decline the the customer’s request that he attend to the Edson job on February 5. But I agree with the Appeals Commission’s conclusions that it was not up to Mr.

Gohmann to decide when to do the work or what work needed to be done at the Edson worksite as these were aspects of Mr. Gohmann’s employment obligations that were given at the employer’s direction in fulfillment of a client’s specific request.

[ 52 ] Other than the two deviations Mr. Gohmann took on his return drive from Edson to Killam, it was reasonable for the Appeals Commission to conclude, based on its assessment of the evidence, that his travel to and from the Edson worksite was undertaken to fulfill the client’s job request and therefore, that Mr. Gohmann’s trip and the inspection which he carried out were under the employer’s direction and control. To paraphrase the Appeal Commission’s discussion at paragraph 23 of its decision, why else did Mr.

Gohmann change his plans to make the four-and-a-half drive to Edson, a place he had not intended to travel to, during his two-weeks stay in Killam? [ 53 ] In my view, the Appeals Commission reasonably concluded that Mr. Gohmann did not provide any evidence to contradict the fact that he was travelling to the Edson worksite under his employer’s direction and control as per question-and-answers #2 and #5 of Policy 02-01,

Part II, Application 3: Travel, and that as the travel was in furtherance of his fulfillment of the obligations and expectations of his employment, Mr. Gohmann was, at the time of the accident, in the course of his employment, in accordance with the definition of “occurs in the course of employment” set out in Policy 02-01,

Part I, Policy and

Interpretation. [ 54 ] Mr. Gohmann argues that in reaching its decision, the Appeals Commission failed to properly explain why his travel to Edson was not routine travel and in so doing, failed to clarify whether a worker’s travel from a temporary residence to a worksite is inconsistent with routine commuting; whether long travel, such as Mr. Gohmann’s four-and-a-half drive from Killam to Edson constitutes routine commuting; what the “upper bound” on the distance involved in routine commuting might be; and whether routine commuting requires regular travel from the same locations (Mr.

Gohmann’s brief at paras 37-40). [ 55 ] While there may be aspects of the WCB’s policy in respect of routine travel that Mr. Gohmann may have wanted the Appeals Commission to clarify, requiring the Appeals Commission to do so in the course of rendering its decision confuses the role that a reviewing court plays on an application for judicial review. As discussed above, it is not appropriate for a court to assess the administrative decision maker’s reasoning against a standard of perfection or to expect that the decision maker will answer all possible arguments and questions.

That would place expectations on an administrative decision maker that Vavilov quite explicitly tells us is inappropriate.

The question on judicial review is not whether the decision maker could have made a conceivably better decision or could have approached the analysis differently, but whether its decision is good enough to satisfy the reasonableness standard. [ 56 ] The Appeals Commission had sufficient facts before it on which to make a reasonable determination without having to engage in a further analysis regarding routine travel that was, at least in my view, both unnecessary and immaterial to the central question it was required to answer. In other words, while Mr.

Gohmann may have wanted the Appeals Commission to provide greater clarity with respect to the WCB’s rules around routine commuting, that did not preclude the Appeals Commission from reasonably concluding, based upon all of the circumstances and its understanding of the applicable WCB policies, including Policy 02-01,

Part I, Policy and

Interpretation and Policy 02-01,

Part II, Application 3: Travel, that Mr. Gohmann was acting under his employer’s direction and control during his return trip from Killam to Edson. [ 57 ] Mr. Gohmann’s WCB file has been the subject of extensive consideration at various levels of review. Mr. Gohmann has been provided with the opportunity to continually assess his case, raise fresh arguments, and seek to introduce new evidence. The Appeals Commission had the benefit of reviewing a file that had already been thoroughly vetted and argued at various different levels of the WCB’s review process.

In keeping with Vavilov ’s admonitions that a reviewing court should acknowledge with proper respect the administrative decision-maker’s expertise, I must recognize that the Appeals Commission has the requisite specialized knowledge and experience to interpret and apply WCB policies consistently and rationally. [ 58 ] That Mr. Gohmann’s trip to Edson was carried out under the direction and control of his employer is a logical conclusion for the Appeals Commission to reach given the factual context and I cannot identify any fatal flaws inherent in its reasoning and ultimate conclusion.

Nor do I see any absence of justification, intelligibility and transparency in the Appeals Commission’s decision that would justify a finding of unreasonableness. 2. Did the Appeals Commission Unreasonably Refuse to Exclude Mr. Gohmann’s March 20, 2015, Interview? [ 59 ] The Appeals Commission’s decision not to exclude the interview transcript from the WCB claims record is reasonable. [ 60 ] The interview transcript became part of the WCB claims record when it was provided to the WCB.

Section 13.2(2) of the Act deals with appeals that are brought from the DRDRB to the Appeals Commission under

section 46 of the Act and specifies that, “...the Appeals Commission shall consider the records of the claims adjudicator and the review body relating to the claim” (emphasis is mine). [ 61 ] Further, Appeal Rule 4.6(1)(

a) of the Appeals Commission requires the Appeal Commission to consider that when an appeal is brought under

section 46 of the Act , “the Appeals Commission must consider the records of the claim adjudicator and the review body relating to the claim” (emphasis is mine). [ 62 ] The interview transcript forms part of the WCB’s claims record which, pursuant to the Act and its own appeal Rules, the Appeals Commission must consider. This is acknowledged by the Appeals Commission at paragraph 39 of its decision. [ 63 ] In any event, the Appeals Commission does not appear to have placed substantial weight on Mr.

Gohmann’s March 20, 2015, interview and at paragraph 39 of its decision, it states: “...That said, we focused on the representations made by the three parties and the evidence and applicable policy provisions that apply to those representations in reaching our decision. For example, we did not place substantial weight on the workers’ statements about the rush job captured in the third party’s recorded interview...” (emphasis is mine)

[ 64 ] During oral submissions, I asked Mr. Gohmann’s counsel whether he could identify anything in the interview that the Appeals Commission relied on that impacted its decision or was otherwise detrimental to Mr. Gohmann’s position. Mr. Gohmann’s counsel fairly conceded that he could not. [ 65 ] In the result, the Appeals Commission’s refusal to exclude Mr. Gohmann’s March 20, 2015, interview from the claims record is in all respects proper and reasonable in light of its statutory authority under the Act and its Appeal Rules. VII. Conclusion [ 66 ] Having reviewed the history of Mr.

Gohmann’s file as it wound its way up through the WCB to the Appeals Commission, having assessed the Appeals Commission’s findings of fact, its decision as per Vavilov and having considered the parties’ oral arguments and written submissions, I do not find that Mr. Gohmann has discharged his onus of showing that the Appeals Commission’s February 13, 2020, decision is unreasonable. [ 67 ] I reach this conclusion with some angst as the impact of this decision will weigh heavily on Mr. Gohmann. For that, I am truly sorry. But this court, like Mr.

Gohmann, must recognize the “historic trade-off” that brought the WCB regime into being, however unfair the outcome of that bargain might now appear to be. [ 68 ] Accordingly, I must dismiss Mr. Gohmann’s application. [ 69 ] If the parties cannot agree on costs, they may each submit submissions, not exceeding 3 pages each, within 30 days of this decision. Heard on the 11 th day of March, 2021. Dated at the City of Calgary, Alberta this 9 th day of April, 2021. O.P. Malik J.C.Q.B.A. Appearances: Taylor Hudson and Patrick Clark for the Applicant, Mr. Gohmann Samantha M.

Rabatich for the Respondent, the Workers’ Compensation Board Jay Williamson and Peter Giraldeau for the Respondent, Appeals Commission of the Workers’ Compensation Board Thomas W. Percy for Intact Insurance Company and A&B Concrete Plumbing

(2007) Ltd.