Matys v Alberta (Appeals Commission for Alberta Workers’ Compensation), 2021 ABQB 542

Court of Queen’s Bench of Alberta Citation: Matys v Alberta (Appeals Commission for Alberta Workers’ Compensation), 2021 ABQB 542 Date: 20210714 Docket: 1903 10086 Registry: Edmonton Between: Irena Matys Applicant - and - Appeals Commission for Alberta Workers’ Compensation and the Workers’ Compensation Board of Alberta Respondents _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice M. Hayes-Richards _______________________________________________________ Introduction [ 1 ] Ms.

Matys [Applicant] applies for judicial review and/or appeals a decision by the Workers Compensation Board Appeals Commission [Appeals Commission] regarding its decision that she is not entitled to an unreduced Earnings Loss Supplement [ELS] beyond age 65 [Decision]. In particular, she argues the hearing was procedurally unfair and the Decision unreasonable. Background [ 2 ] The Applicant was injured on June 2, 1988 while working for Gainers Inc.

The Workers’ Compensation Board [WCB] accepted her claim for injuries under the Workers Compensation Act , RSA 2000, c W-15 [ WCA ] and issued her a pension as well as an ELS. The ELS is payable if the worker’s actual compensable loss of earning capacity exceeds the value of the pension. [ 3 ] Pursuant to WCB Policy 04-04 [Policy], the ELS benefit continues to be paid until the earnings loss ends or the worker

reaches retirement age, whichever happens first. The default age of retirement under the Policy is 65, unless there is “sufficient and satisfactory evidence to show that the worker would have continued to work past that age if the injury had not occurred.” [ 4 ] The Applicant turned 65 on September 6, 2017. On August 22, 2017, she was informed through a letter by a WCB Case Assistant that her monthly ELS benefit would end as of October 1, 2017, by operation of the Policy. The Applicant sought a review of this decision by the WCB’s internal review body, the Dispute Resolution and Decision Review Body [DRDRB].

The DRDRB upheld the Case Assistant’s decision to end the ELS when the Applicant turned 65. The Applicant appealed the DRDRB’s decision to the Appeals Commission, the external appeal body for WCB decisions. [ 5 ] The Appeals Commission held a hearing at which the Applicant appeared along with a Representative, who was there to assist her present her case. Following the hearing, the Appeals Commission issued a decision upholding the DRDRB’s decision. The Appeals Commission concluded that the Applicant did not meet the criteria outlined in the Policy for entitlement to an unreduced ELS past age 65.

The Applicant then filed this Originating Application challenging the Appeals Commission’s Decision. Issues [ 6 ] The Originating Application set out the Applicant’s claims in the following way: 1) The Appeals Commission for Alberta Workers’ Compensation Board erred in both the

interpretation and application of Section 24(1), Section 56(8) and Policy 03-01 of the Workers’ Compensation Act . The

interpretation of Section 24(1), Section 24(4), Section 56(8), and Policy 03-01 was neither correct nor reasonable. 2) The February 14, 2019 Decision of the Appeals Commission is contrary to the [principles] of natural justice. 3) The Appeals Commission hearing and resulting decision was procedurally unfair and did not comply with the rule of natural justice as the Appeals Commissions did not give proper weight to the medical evidence provided by the Applicant and completely ignored it against the principles of administrative law, equity and natural justice. [ 7 ] The Applicant’s written submissions did not include any argument with respect to natural or procedural justice.

The issue presented in the Applicant’s written submission was stated as follows: The issue of this Judicial Review Application is what is the appropriate standard of review and whether the matter should be sent back to the Appeals Commission for a redetermination of the issue of whether there was sufficient and satisfactory evidence including some independent evidence to support that the worker intended to work after age 65 and would have done so if not for the compensable injuries. [ 8 ] At the oral hearing of this matter, the Applicant raised issues of procedural fairness, arguing the hearing was procedurally unfair and flawed, not in line with statutory purpose, and that the Applicant did not have proper representation.

The Applicant also made various arguments about the

interpretation and application of the legislation and policies of the WCA to the evidence in this case, including that the Appeals Commission’s decision that there was no satisfactory independent evidence that she would have worked past 65 was unreasonable. [ 9 ] On the basis of the Originating Application, the written submissions and the oral submissions, I find that the issues before me in this appeal/judicial review can be distilled to the following two questions: 1. Were the principles of procedural fairness breached? 2. Was the Appeals Commission’s Decision unreasonable on its merits?

Standard of Review Judicial Review versus Statutory Appeal [ 10 ] The presumptive standard of review for administrative decisions is reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 at para 23 [ Vavilov ]. The presumption can be rebutted in two types of situations, one of which is if there is a statutory appeal mechanism prescribed in the governing statute, which signals the legislature’s intent that appellate standards apply to the court’s review of the administrative decision.

Section 13.4 of the WCA provides for a statutory appeal but only on a question of law or jurisdiction. All other issues, such as those involving questions of facts or mixed facts and law, are pursued as a judicial review. Issue 1: Procedural Fairness [ 11 ] Whether there is a breach of procedural fairness is a question of law: Steele v Edmonton Police Service , 2016 ABCA 95 at para 8 .

Consequently, the first issue falls under the statutory appeal mechanism in s 13.4 of the WCA and the standard of review is correctness: Housen v Nikolaisen , 2002 SCC 33 at para 8 ; Thompson Brothers (Construction) Ltd v Alberta (Appeals Commission for Alberta Workers’ Compensation) , 2012 ABCA 78 at para 17 [ Thompson Brothers ]. [ 12 ] In determining whether there has been a breach of procedural fairness, the Alberta Court of Appeal has stated that where an act, like the WCA , contains detailed provisions regarding the form and content of hearings, it is not necessary to resort to the factors in Baker v Canada (Minister of Citizenship & Immigration) , 1999 SCC 699, to determine the appropriate standards of fairness required: Johnson v Alberta (Appeals Commission for Alberta Workers’ Compensation) , 2011 ABCA 345 at paras 12-15 ; Thompson Brothers

at para 17. Consequently, “[w]hether the overall conduct of the hearing met an acceptable standard of fairness is reviewed for correctness”: Thompson Brothers at para 17; Nortel Networks Inc v Calgary (City) , 2008 ABCA 370 at para 32 , 39; and Vavilov at para 23 . Issue 2: The Merits of the Decision [ 13 ] How the Appeals Commission applied its

interpretation of the WCA and its policies to the facts of this case and specifically to the termination of the Applicant’s ELS benefit raises a question of mixed fact and law: Elgie v Alberta (Workers’ Compensation Board Appeals Commission) , 2009 ABCA 227 at paras 27 and 28 ; Vallette Estate v Alberta (Appeals Commission for Alberta Workers’ Compensation) , 2012 ABCA 12 at paras 5 and 27 [ Vallette ]. This issue is therefore not a question of law or jurisdiction and does not fall under the statutory appeal provisions in s 13.4 of the WCA .

It falls under judicial review mechanism, the presumptive standard of review is reasonableness, and none of the exceptions apply: Vavilov at para 23 . [ 14 ] A reasonableness review, while still a robust form of review, has at its core judicial restraint and “respect for the distinct role of administrative decision makers”: Vavilov at para 13 . It considers the “justification, transparency and intelligibility” of a decision as well as “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Vavilov at para 86 .

Reviewing courts should respect administrative decision makers and their specialized expertise, should not ask how they themselves would have resolved an issue and should focus on whether the Applicant has demonstrated that the decision is unreasonable: Vavilov at paras 75, 83 . This means “the focus of reasonableness review must be on the decision actually made by the decision maker” and the “reviewing court must consider only whether the decision made by the administrative decision maker – including both the rationale for the decision and the outcome to which it led – was unreasonable”: Vavilov at para 83 .

In this context, reviewing courts “must refrain from ‘reweighing and reassessing the evidence considered by the decision maker’”: Vavilov at para 125 . Ultimately, “a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker”: Vavilov at para 85 . [ 15 ] If a reviewing court finds the decision of an administrative tribunal unreasonable, the remedy will most often be to set the decision aside and remit it back to the tribunal to conduct a new hearing: Vavilov at para 141 Analysis 1.

Were the principles of procedural fairness breached? [ 16 ] To the extent that the Applicant mentioned a breach of the principles of natural justice in her Originating Notice, she has not tied the breach to any specific allegation and therefore, I assume that the natural justice ground overlaps with the procedural fairness ground. [ 17 ] At the oral hearing, the Applicant argued that the hearing was procedurally unfair and flawed, not in line with statutory purpose, and that the Representative who assisted the Applicant during the hearing was really no assistance at all.

The Applicant submitted that a reading of the transcript of the hearing would illustrate that the hearing was utterly and completely flawed.

When specifics were requested, the Applicant submitted that the Representative did not put forward any position of the worker, only said what the requirements of the WCA were respecting an intention to work after 65, and did not explain why there was no independent evidence of an intention to continue working past 65. [ 18 ] In Buryn v Alberta (Minister of Municipal Affairs) , 2017 ABQB 613 at para 31 , Pentelechuk J, as she then was, wrote that: Procedural fairness ensures that administrative decisions are made using a fair, impartial, open, and transparent process that provides those affected by the decision an opportunity to know the case against them and to fully put forth their views and the evidence they wish the decision-making body to consider.

The duty of fairness is flexible, variable, and contextual in nature, and accordingly, the level of procedural fairness owed will vary depending, in part, on purpose and intent of the applicable legislation and the process for decision making outlined in the legislation. [ 19 ] At para 17 of Thompson Brothers , the Alberta Court of Appeal held that it is not necessary to resort to the Baker factors in order to determine the appropriate standards of fairness required, given that the WCA and its Appeal Rules contain detailed provisions regarding the form and content of hearings before the Appeals Commission.

The Appeals Commission is bound by s 13.2 of the WCA in conducting appeals and has the express authority under the WCA to make rules governing the practice and procedure applicable to the proceedings before it. The Appeals Commission has enacted a set of Appeal Rules which incorporate the requirements set out in s 13.2 of the WCA and add requirements respecting the hearing/consideration of relevant evidence, the ability to question witnesses at a hearing, and the requirement to give participants the opportunity to make a full argument.

The appropriate analysis is therefore based on those rules and an examination of whether the Appeals Commission’s

interpretation and application of them as well as the overall conduct of the hearing met an acceptable standard of fairness. [ 20 ] The Appeals Commission had before it a full and comprehensive record of relevant documents. At the commencement of the hearing all parties were introduced, the panel explained the procedure for the hearing, the Applicant had the opportunity to present evidence and make submissions, the panel spoke to her directly, asked her questions and clarified her answers and her evidence.

Her written submissions were made an exhibit. [ 21 ] The Applicant is correct that her Representative explained the requirements of the WCA and confirmed that the Applicant had no independent evidence of an intention to work past 65. Her position was simply that she disagreed with the decision to terminate her ELS at age 65. One of the specific complaints made by the Applicant is that there was no explanation by the Representative as to why there was a lack of independent evidence from her employer showing she would have worked past 65, but the Applicant personally

explained the situation to the panel, and they clearly understood because they addressed it in their Decision at paras 19.2 and 20.7. [ 22 ] After reviewing the Record and the transcript of the Appeals Commission hearing, I find the Applicant had the opportunity to fully and fairly present her case. The Appeals Commission had a full Record of relevant documents before it, including the Applicant’s own letter and submissions explaining her situation. She had the opportunity to present evidence and make submissions. She had the assistance of a Representative at the hearing.

The panel interacted with her, asked questions, clarified evidence and gave her the opportunity to fully present her case. The burden of proving procedural unfairness rests with the Applicant and in my view, she has not discharged this burden on the correctness standard. This ground of appeal is dismissed. 2. Was the Appeals Commission’s Decision unreasonable on its merits?

a) Relevant Legislation [ 23 ]

Section 13.1(1) of the WCA establishes the exclusive jurisdiction of the Appeals Commission to hear appeals and to examine, inquire into, and determine all matters as well as questions arising under the WCA and the regulations in respect of appeals from decisions made by the DRDRB. [ 24 ] The Appeals Commission, in hearing an appeal under the WCA , is bound by relevant legislation and WCB policy, pursuant to s 13.2(6)(

b) of the WCA . [ 25 ] For accidents occurring before January 1, 1995, and resulting in permanent clinical impairment, WCB policy provides for two types of benefits: 1) a permanent disability pension, and 2) an ELS in the event the pension does not fully compensate the worker for the worker’s actual loss of earning capacity: Policy 04-04

Part I. [ 26 ] The ELS is payable until the compensable earnings loss ends, or the worker reaches the presumed retirement age of 65, whichever happens first. The ELS ends when the worker reaches age 65 unless there is sufficient and satisfactory evidence to show that the worker would have continued to work past that age if the injury had not occurred: WCP Policy 04-04,

Part II, Application 5, Questions 4 and 5. [ 27 ] The presumed retirement age can be rebutted by adducing independent evidence that the worker intended to work past age 65. The decision is made on the balance of probabilities and while workers are not required to provide absolute proof, there must be some independent evidence that the worker intended to work after age 65, and would have done so if not for the compensable injury.

The Policy sets out a non-exhaustive list of examples of satisfactory independent evidence capable of meeting this threshold, including: • Confirmation from the worker’s accident employer, union, or other independent employment source that the worker had planned to continue after age 65 and employment was available • Continued employment post-age 65 at the same level and earnings as pre-age 65 • Continued employment post-age 65 at reduced earnings, when it is clear the reduction in earnings is caused by a deterioration of the compensable work restrictions, rather than a personal choice of semi-retirement Policy 04-04

Part II, Application 5, Questions 4 and 5

b) The Appeals Commission’s Decision [ 28 ] The issue before the Appeals Commission was whether the Applicant was entitled to an unreduced ELS beyond age 65.

Based on a review of the relevant legislation and Policy 04-04, the panel held that in order to decide this issue, they must answer the following question: Is there sufficient and satisfactory evidence, including some independent evidence, to establish that the worker intended to work after age 65 and would have done so if not for the compensable injuries? [ 29 ] The Appeals Commission heard evidence and submissions from the Applicant and her Representative including: • the Applicant’s home is paid off and she has no large debts; • the Applicant and her husband have very little money left over after meeting their monthly expenses; • the Applicant remains totally disabled due to psychological conditions and medical reporting confirms her inability to work; • the Applicant wrongly presumed that WCB was making CPP contributions on her behalf; • the Applicant stated that if she had not been hurt she would probably have worked beyond age 65, but it was acknowledged that there was no independent evidence to support that claim; • the Applicant’s employer no longer operates in Alberta, and therefore she has had no contact with her former employer; • WCB pays for the medication needed for the Applicant’s compensable injuries, and she pays for medication for non-compensable health conditions and her husband’s expensive medication.

[ 30 ] Based on the evidence before it, the Appeals Commission found there was not sufficient and satisfactory evidence to establish that the worker intended to work past age 65 and would have done so if not for her compensable injury. It interpreted the examples in the Policy of what may constitute independent evidence of a plan to continue working beyond age 65 as descriptive, not prescriptive and noted that the Alberta Court of Appeal in Vallette upheld the WCB’s deemed retirement at age 65 policy as reasonable.

It found that the Applicant’s testimony alone, that she would have worked beyond age 65, was insufficient, and that it must base its decision on some independent evidence. [ 31 ] The Appeals Commission held that while the Applicant’s submissions and budget showed that it may be financially in her best interests to receive an ELS past age 65, this is not independent evidence of her pre-injury intention that she would have continued to work past 65.

The Appeals Commission noted that the WCB repeatedly notified the Applicant by letter between 2005 and 2017 that her ELS would be reduced at age 65 unless she was able to produce independent evidence of a pre-injury intention to work past 65, and notwithstanding this advance notice, she produced no independent evidence to the WCB, the DRDRB, or the Appeals Commission panel.

The Appeals Commission acknowledged that the worker could not obtain any information from her former employer and that she was not employed at the time she turned age 65 because she had not been able to return to work since first receiving her ELS on October 1, 1996. However, the Appeals Commission noted that the Applicant did not provide any other corroborating information either, such as documentation or statements from a financial planner or institution to show a financial/retirement plan established prior to the injury supporting the intent to work past age 65.

She also provided no evidence of a debt incurred prior to the injury with a pre-payment plan that showed an intention to work beyond age 65. [ 32 ] The Appeals Commission also noted that the Applicant’s stated intention to work beyond age 65 did not align with her argument that she presumed WCB contributed to her CPP so that she would have sufficient CPP benefits once she reached age 65.

Further, it considered her evidence of an intention to work past 65 contradictory because of the answers she gave on WCB forms on June 27, 2017, which stated she did not plan to go to work after age 65. [ 33 ] The Appeals Commission acknowledged the argument of financial hardship, but held it was bound by WCB policy and the requirements of the Policy were clear that there must be some independent evidence of an intention at the time of the injury to work past age 65.

Having found no independent evidence of this intention, the panel concluded that the Applicant did not meet the criteria in the Policy for entitlement to an unreduced ELS past age 65. The panel concluded there was not sufficient and satisfactory evidence, including some independent evidence, to support that the Applicant intended to work after age 65 and would have done so if not for the compensable injuries.

c) Was the Decision unreasonable? [ 34 ] The Applicant submits that the Appeal Commission’s Decision is unreasonable for several reasons. [ 35 ] First, she submits that the Decision fails to address that her workplace, Gainers, closed 25 years ago and therefore there is no information available from her employer or her union regarding her intent to continue to work after age 65. This submission fails because the Appeals Commission specifically addressed this fact in its Decision, acknowledging the Applicant’s inability to obtain information from her employer and the reason why it was not possible.

Information from her former employer was not a requirement, it was simply an example of one type of independent evidence that a worker might be able produce. [ 36 ] Second, she argues that more and more people are working past the age of 65 and provides statistics in support. These statistics were not before the Appeals Commission and no application has been made to adduce fresh evidence. In addition, no challenge has been made to Policy 04-04, and specifically, to the presumed retirement age of 65.

A similar WCB policy with a presumed retirement age of 65 was upheld as intra vires and reasonable by the Alberta Court of Appeal in Valette . [ 37 ] Third, she argues that the Decision fails to engage the governing statutory scheme and the principles of statutory

interpretation. She argues that one of the purposes of the WCA is to enable workers to receive compensation without having to resort to legal proceedings and that the WCA is to be given a broad and liberal

interpretation which will allow compensation to be provided to as many workers in as many circumstances as the legislative scheme will reasonably permit. She cites Shuchuk v Alberta (Workers’ Compensation Board) , 2007 ABCA 213 , for the principle that the purpose of the WCA is to provide workers with a broad range of compensation. [ 38 ] The Applicant argued that notwithstanding the Policy’s requirement to show independent evidence, s 56(12) of the WCA says a worker gets disability as long as an injury lasts. However, as the WCB Respondent pointed out, s 56(12) deals with temporary total and partial disability and is not the

section that applies to the permanent disability pension, which is what the Applicant receives. The correct

section is s 56(11) which says that for permanent total and partial disability, compensation is payable during the worker’s lifetime. The Applicant is still receiving her disability pension from WCB, what she is no longer receiving is the discretionary ELS.

As counsel for WCB Respondent explained, the policy reason why the ELS will eventually end is because eventually the loss of earning capacity is not going to arise from the injury, it is going to arise from the fact that the worker would eventually retire, or due to age, can no longer work. [ 39 ] Lastly, the Applicant argues that the Decision fails to correctly analyze the evidence before it, ignores the worker’s submissions, and the quality of the justification does not reflect the gravity of the impact on the Applicant, who is finding it difficult to live without the ELS that was terminated in 2017. [ 40 ] The Respondent WCB [Respondent] submits the Applicant is simply asking the court to re-weigh the evidence to come to a different conclusion.

The Respondent submits the Appeals Commission’s reasoning is clear as to how it applied the facts and law to arrive at its conclusion, and that it is transparent and justifiable with each element of its Decision explained and understandable.

The Respondent argues the decision to uphold the termination of the ELS benefit fell within a range of possible conclusions that were open to the panel and is ultimately reasonable. [ 41 ] I agree that the reasoning of the Appeals Commission is clear as to how it applied the facts and law to arrive at is conclusion and transparent and justifiable with each element of its Decision explained and understandable. The Policy has a rebuttable retirement

age of 65. To rebut the presumption the Policy requires independent evidence. The Applicant was unable to provide any independent evidence of a pre-injury intention to continue working past the age of 65 and consequently, the finding that she had not rebutted the presumption was reasonable. [ 42 ] There is one aspect of the Appeals Commission’s reasons that I disagree with, however it makes no difference to the outcome of the judicial review.

The Appeals Commission found that the Applicant’s answers on her July 27, 2017 questionnaire, that she did not intend to work past 65, were inconsistent with her hearing evidence that she intended to work past 65. However, when her answers on the questionnaire are considered in context, there is no inconsistency. The Applicant was answering the questions on the questionnaire in real time. She had not worked since her injury and was not going to be able to work at anytime in the future, including after age 65.

Therefore, when she was asked if she intended to work past 65 she said no, knowing that she would not be able to work because of her injury. At the hearing, she gave evidence that she did intend to work past age 65, but that was in relation to what her intention was before she was injured. Her two answers related to her intentions at different points in her life, pre and post injury.

There is no inconsistency in her answers, however, this finding by the Appeals Commission did not affect its ultimate conclusion that there was not sufficient and satisfactory evidence, including some independent evidence, to support that the Applicant intended to work after age 65. [ 43 ] The Appeals Commission’s Decision was intelligible, transparent and justifiable, and the conclusion reached fell within a range of possible, acceptable outcomes defensible in respect of the facts and law: Vavilov at para 86 . [ 44 ] For the above reasons, the appeal/judicial review is dismissed.

Heard on the 12 th day of May, 2021. Dated at the City of Edmonton, Alberta this 14 th day of July, 2021. M. Hayes-Richards J.C.Q.B.A. Appearances: Viqar Quraishi, QC for the Applicant Jason J.J. Bodnar for the Respondent, Workers’ Compensation Board Jay Williamson For the Appeals Commission