Michael Stephen Keough APPLICANT And: Workplace Health, Safety v. Compensation Review Division, 2018 NLSC 49

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Keough v. Workplace Health, Safety and Compensation Review Division 2018 NLSC 49 Date : March 7, 2018 Docket : 201504G0059 Between: Michael Stephen Keough APPLICANT And: Workplace Health, Safety and Compensation Review Division FIRST RESPONDENT And: Workplace Health, Safety and Compensation Commission SECOND RESPONDENT Before: Justice David F. Hurley Place of Hearing: Corner Brook, Newfoundland and Labrador

Summary: The Applicant made an application in the nature of certiorari to set aside a decision of the First Respondent which upheld a decision of the Second Respondent which denied the Applicant retroactive wage loss benefits. The Application was dismissed with no order as to costs. Appearances: Frederick R. Stagg, Q.C. Appearing on behalf of the Applicant Stephen J. Willar On behalf of the First Respondent by

written brief Rebecca C. Phillipps Appearing on behalf of the Second Respondent Authorities Cited: CASES CONSIDERED: Workplace Health, Safety and Compensation Commission v. Reid, 2015 NLCA 40; Dunsmuir v. NewBrunswick, 2008 SCC 9; Osmond v. Workers Compensation Commission, 2001 NFCA 21; Newfoundland (Workers' CompensationCommission) v. Breen (1997), (NL CA), 149 Nfld. & P.E.I.R. 335, 467 A.P.R. 335 (Nfld. (C.A.)) STATUTES CONSIDERED: Workplace Health, Safety and Compensation Act, R.S.N.L. 1990, c.

W-11 REASONS FOR JUDGMENT Hurley, J.: INTRODUCTION [1] In this application for an order in the nature of certiorari, the Applicant, Michael Stephen Keough seeks to set aside adecision of the First Respondent, Workplace Health, Safety and Compensation Review Division (“Review Division”) which upheld thedecision of the Second Respondent, Workplace Health, Safety and Compensation Commission (“the Commission”) of July 16, 2012. Mr. Keough maintains that the Review Commissioner erred in determining that he was not entitled to retroactive wage loss benefits. background [2] Mr.

Keough was injured in the course of his employment as a sawmill worker on July 29, 1980. He was struck in the face bya piece of wood which flew from the blade of the saw. Mr. Keough was diagnosed with a concussion, facial bone fractures and left eyedamage. [3] Mr. Keough was treated in hospital where he had several surgeries to repair his fractured facial bones. [4] Mr. Keough received wage replacement benefits until March 15, 1984 at which time the Commission closed Mr.

Keough’sclaim, finding that he had recovered to the point where he could return to some form of suitable employment notwithstanding the effectsof his work injuries. Temporary disability payments were subsequently extended to May 9, 1984, when the Commission then closed theclaim. [5] On March 24, 1986, Mr. Keough applied for and was granted a permanent partial disability (PPD) award. The Commissiondetermined that Mr. Keough had an 8% rating for the physical injury and a 2% rating for the cosmetic impairment. [6] On May 24, 1987, Mr.

Keough developed cerebral seizures and was diagnosed with meningitis with a cerebral spinal fluid(“CSF”) leak. He underwent surgery at the Health Sciences Center, in St. John’s, NL. [7] The Commission reinstated Mr. Keough’s temporary earning loss benefits effective May 24, 1987, which were terminatedSeptember 24, 1987. [8] Income Tax Records indicate that Mr. Keough received Employment Insurance (“EI”) benefits in 1987. This would be inaddition to the Temporary Disability payments from the Commission for the period of May 24 – September 24, 1987. [9] From 1988 – 1992, Mr.

Keough had employment income and received Employment Insurance on an annual basis. [10] In 1993, Mr. Keough began receiving Social Assistance. [11] On May 4, 2010, Counsel for Mr. Keough sent a fax to the Commission with the view to having his claim re-opened. Apparently at the same time, Mr. Keough applied for Canada Pension Plan (“CPP”) Disability Benefits. [12] On October 28, 2010, Mr. Keough completed a Form 6: Worker’s Report of Injury to reopen his claim. He indicated having

neck pain, headaches, dizziness and diplopia. [ 13 ] After receiving information from various sources, on January 18, 2012, the matter was referred to the Commission’s medical consultant, Dr. Stephen Walker, for an opinion as to whether Mr. Keough’s symptoms in October 2010 could be reasonably related to his initial head injury of 1980. [ 14 ] Dr. Walker replied on January 19, 2012 confirming that as of October 2010, Mr.

Keough’s medical problems were more likely than not, primarily as a result of the 1980 head injury, confirming his current issues to be the result of a compensable injury. [ 15 ] The Commission reopened Mr. Keough’s claim, finding that there had been a reoccurrence of the 1980 compensable injury. In her report of January 25, 2012, the Intake Adjudicator concluded: … Therefore, based on all available medical evidence and taking into consideration the comments from the Commission’s Medical Consultant your recurrence of Oct 2010 has been accepted for health care costs only.

There is no entitlement to wage loss benefits, as you have not worked in many years. [ 16 ] Mr. Keough requested an Internal Review of this decision on February 17, 2012. [ 17 ] On April 9, 2012, the Commission by way of Internal Review denied the review. The Internal Review Specialist confirmed that while the worker was again experiencing the effects of the 1980 injury, there could not be a claim for wage loss by virtue of s. 77 of the Workplace Health, Safety and Compensation Act , R.S.N.L. 1990, c.

W-11 (“the Act ”), which states: Recurrence. 77 Where an injured worker suffers a recurrence of an injury, the compensation payable to him or her shall be based on the average weekly earnings at the time of his or her loss of earnings resulting from the recurrence of the injury, less compensation he or she is already receiving in respect of that injury. [ 18 ] The Review Commissioner agreed with the Commission that as Mr. Keough had no earnings to replace, there was no loss.

This was said to be consistent with Policy EN-03: Recurrences; A recurrence is a return to disabling symptoms directly related to an original work injury which results in loss of earning opportunity … [ 19 ] However, in the April 9th, 2012 Internal Review decision, it was noted that Mr. Keough indicated that he was unable to return to work as the result of his injury and therefore should be entitled to retroactive wage loss entitlement.

As this was a separate issue, the Internal Review Specialist referred the matter back to the Adjudicator to review the merits of this contention. [ 20 ] On May 3, 2012, the Adjudicator advised Mr. Keough that she had requested and reviewed all medical records as well as documentation from Revenue Canada. The medical records did not indicate that Mr. Keough was taken off work after 1992 due to his compensable work injury. [ 21 ] On May 24, 2012, Mr.

Keough initiated a further review of the decisions of the Adjudicator, which denied the request for retroactive wage loss entitlement. [ 22 ] On July 16, 2012, Mr, Keough was advised by the Internal Review Specialist in a written decision that the evidence does not support an inability to return to employment as a result of the July 29, 1980 work injury. Therefore, Mr. Keough would not be entitled to retroactive benefits. [ 23 ] On a review before the Review Division, Review Commissioner Piercey rejected the arguments put forward by Mr. Keough.

In his decision of August 13, 2013, the Review Commissioner confirmed the decision of the Commission dated July 16, 2012. [ 24 ] The decision sets out the Review Commissioner’s conclusion at paragraph 40: 40 In my review of the file, in its entirety, I find that the evidence supports the Commission’s position that there is a lack of medical evidence to support that the worker’s inability to work is directly related to the1980 injury. In conclusion, I cannot find that the Commission has erred in awarding health care benefits only. [ 25 ] Mr. Keough requested a reconsideration of the August 13, 2013 decision.

On April 7, 2014 the Chief Review Commissioner refused to set aside the Review Commissioner’s decision and stated: My review of Review Commissioner Piercey’s Decision does not disclose an error that would affect the integrity of the Decision. The Review Commissioner followed the Act , regulations and policies pertinent to the issue under review. issue [ 26 ] Subject to the applicable standard of review, should the decision of the Review Commissioner dated August 13, 2013 upholding the Commission’s decision that Mr. Keough’s entitlement to health care benefits only be set aside? THE STANDARD OF REVIEW [ 27 ] Mr.

Keough requests review of the decision of Review Commissioner Piercey and asks the Court to reinstate wage loss benefits with retroactive effect. Mr. Keough is claiming that the decision of the Review Commissioner was contrary to medical evidence relating to his injuries. While the Review Commissioner disputed Mr. Keough’s assessment of the evidence, his decision also engages the application and

interpretation of the Act . Mr. Keough has not alleged any jurisdictional errors made by the Review Commissioner or the Chief Review Commissioner.

[ 28 ] The parties have not disputed that the Review Commissioner’s decision should be reviewed on a standard of reasonableness. The appropriate standard of review was determined by our Court of Appeal in Workplace Health, Safety and Compensation Commission v. Reid , 2015 NLCA 40 . This decision follows the general principles set out in Dunsmuir v. New Brunswick , 2008 SCC 9 and subsequent decisions from the Supreme Court of Canada. [ 29 ] To be successful in these proceedings, Mr. Keough must establish that the decision of the Review Commissioner was unreasonable.

In Dunsmuir , the Court emphasized that the dominant principle underlying the reasonableness standard is one of deference, as stated at paragraph 47: 47 Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions.

A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. NATURE OF THE REVIEW [ 30 ] Mr.

Keough’s argument reflects his disagreement with the Review Commissioner’s weighing of the evidence. In his application he seeks to have the decision of the Review Commissioner set aside on the basis of three grounds all related to the assessment of the evidence. It is alleged that: 1. The Respondents herein committed reviewable error, in assessing all of the evidence that was within its purview, and failed to take into account the complete picture with regard to the Applicant’s involvement with the Second Respondent. 2.

The Respondents jointly incorrectly interpreted and applied the information that was available to them through their investigations. 3. The Review Commissioner committed reviewable error by making findings not reasonably supported by the evidence. The Respondents committed reviewable error by failing to take into account relevant considerations and/or taking into account irrelevant considerations and the Respondents made other reviewable errors as may appear on the hearing of the matter.

And the Applicant further seeks an order of this Honourable Court to reinstate the Workers Compensation claims made by the Applicant, and that these claims be retroactive to the time of his original injury and in particular to 1987. [ 31 ] The Review Commissioner pointed out the following aspects of the evidence which Mr. Keough alleges to be improperly assessed or weighed: 1. The impact of the CPP approval. 2. Placing of too much weight on the report of Dr. Faridi. 3. Placing of insufficient weight on the evidence of Dr. Parsons. 4. Placing insufficient weight on the evidence of Dr.

Farrell in 1985 and 1987. [ 32 ] In addition to these evidentiary matters Mr. Keough maintains that the Review Commissioner erred in his

interpretation of the decision Osmond v. Workers Compensation Commission , 2001 NFCA 21 . He also alleges that the Review Commissioner failed to address the principles of natural justice. [ 33 ] Before reviewing Mr.

Keough’s objections to the manner in which certain evidence was assessed, it must be recognized that decisions made by the Commission involving issues of a worker's compensation are subject to the standard of proof in s. 60 of the Act : Proof required. 60(1) An issue related to a worker's entitlement to compensation shall be decided on a balance of probabilities and where the evidence on each side of an issue is equally balanced the issue shall be decided in favour of the worker. [ 34 ] The Commission’s Board of Directors has the authority under ss. 5(1) of the Act to establish policies and programs which are consistent with the Act and regulations which are binding on the Commission and on Review Commissioners pursuant to s. 26.1 of the Act . [ 35 ] Policy EN-20: Weighing Evidence, a policy approved pursuant to the authority of ss. 5(1) of the Act gives direction on the manner in which conflicting medical evidence is to be addressed.

It states: When addressing conflicting medical evidence, decision makers will not automatically prefer the medical evidence of one category of physicians or practitioners over that of another. Decision makers shall consider the following criteria in deciding what weight to give to such evidence:

a) the expertise of the individual providing the opinion.

b) the correctness of the facts relied upon by the provider of the opinion,

c) any issues of bias or objectivity with the opinion,

d) subjective versus objective medical evidence, and

e) the findings of any relevant scientific studies referenced by a qualified medical practitioner. 3) where the weight to give conflicting medical evidence cannot readily be determined by applying the above criteria, the decision maker may consult with a Commission medical officer to: a. determine whether all appropriate medical evidence has been obtained; b. determine if further investigations and/or medical examinations are required; or, c. obtain an opinion regarding the weight of medical evidence. [ 36 ] Mr.

Keough is maintaining that initially the Commission, and now the Review Commissioner erred in giving insufficient weight to some medical evidence, while placing too much weight on certain other evidence. Nevertheless, s. 60 does not prevent the decision-maker from weighing and assessing conflicting medical opinions and to come to a conclusion based on the full record. The legislation does not entitle a claimant to compensation by simply providing some evidence, medical and otherwise, favoring his position.

A decision-maker is not precluded from accepting other evidence which supports a contrary opinion. [ 37 ] As well, s. 60, it is important to keep in mind, gives the claimant an evidentiary advantage. While the claimant has the burden of proof, he may be able to substantiate his claim even if some evidence is weak as s. 60 directs the decision-maker to draw “reasonable inferences in favor of the worker”. evidence [ 38 ] While these proceedings are essentially a review rather than an appeal, a consideration of some of the evidence is necessary in view of the issues raised.

CPP Disability Benefits [ 39 ] At the hearing before the Review Commissioner on May 15, 2013, Counsel advised that Mr. Keough was awarded CPP Disability Benefits and that it would be reasonable to expect the Review Commissioner to arrive at a similar decision. The Review Commissioner responded by indicating that the CPP report and documentation had not been excluded from the evidence. However, he noted that CPP operates as a separate entity, with different eligibility criteria in a different jurisdiction.

The information provided to CPP by the worker may be relevant; however approval for CPP Disability Benefits will not automatically determine or bind the decision of the Commission or the Review Commissioner. Dr. Faridi’s Report [ 40 ] Dr. Faridi is a Neurosurgeon at the Health Sciences Centre, St. John’s. He performed an operation on Mr. Keough to repair a CSF leak, a complication of the 1980 injury. Mr. Keough was admitted to the Health Sciences Centre on June 5, 1987 and discharged on June 23, 1987 and followed for a time in the Outpatient Clinic. [ 41 ] Dr.

Faridi provided a written opinion dated Oct. 1, 1987 wherein he stated that he had seen Mr. Keough on September 21, 1987 and concluded: The patient is doing very well. He has no headaches, no CSF leaks and the wound healed very well. I believe this patient is completely recovered now and he may slowly resume normal activities. [ 42 ] The report of Dr. Faridi was first referred to in correspondence from Ms. Doyle, the Intake Adjudicator who was following up on Mr.

Keough’s contention set out in Internal Review decision of April 9, 2012 that he was unable to return to work as a result of his injury and therefore should be entitled to retroactive wage loss entitlement. [ 43 ] In response, Ms. Doyle referred to the opinion of Dr. Faridi and the records from Revenue Canada which indicated that from 1988 until 1992 Mr. Keough was in receipt of T4 earnings and EI Benefits. In 1993, Mr. Keough quit working and commenced receiving social assistance and continued to do so up to the hearing before the Review Commissioner. As well, the medical records do not confirm that Mr.

Keough received social assistance because of his inability to work. Dr. Parsons’ Report [ 44 ] Dr. Parsons has been Mr. Keough’s family doctor since 1991. He provided a medical opinion July 6, 2010 which, it appears, was also used by Mr. Keough in his application for CPP Disability Benefits. In his written argument in these proceedings, Mr. Keough says that: “The report of Dr. Edwin Parsons is quite detailed and, essentially is the medical information on which this Application is based.” Reliance is strongly placed on the last statement in Dr.

Parsons’ report which states: “This man has been essentially disabled since his head injury in 1980.” [ 45 ] The Review Commissioner indicated that while he placed “great value” on the report of Mr. Keough’s family physician, he, as did the Commission, must review this opinion in the context of all the evidence. His decision considered that following Mr. Keough receiving temporary wage loss benefits for approximately 5 months in 1987 he was cleared to return to work by Dr. Faridi and the Commission. In fact, Mr. Keough returned to work for a five year period from 1988-1992 according to Revenue Canada records.

As well, medical records, including the report from Dr. Parsons, do not support that Mr. Keough discontinued work because of a disability. Medical Consultant

[ 46 ] Mr. Keough contends that the Commission and now the Review Commissioner placed insufficient weight on the evidence of the Commission’s Medical Consultant, Dr. Stephen Walker. He provided a report which provided, in part, the following conclusion: “Thus, based on the information, I am of the opinion that, as of October 2010, (as per your query), Mr. Keough’s medical problems were more likely than not, primarily as a result of the 1980 head injury”. [ 47 ] The Review Commissioner indicated that the source of Mr.

Keough’s 2010 medical problems was not disputed, as the Commission accepted there was a recurrence or a return of disabling symptoms, and reopened his claim for medical aid. Mr. Keough was denied wage loss compensation based on s. 77 of the Act , not on the cause of the recurrence. Dr. Farrell’s Reports [ 48 ] Mr. Keough says that the Commission placed insufficient weight on the evidence of Dr. Farrell in 1985 and 1987. Dr. Farrell was a medical officer with the Commission. In his medical memo (No. 38) of October 11, 1987 Dr. Farrell refers to the nature and effects of his injuries sustained in July 1980.

He stated in part: … His physical disability as such should not prevent him from working at a lower skills level. I would add the proof that this should not be at a position requiring climbing or working on scaffolding, etc. He apparently has worked with a Canada Works Program for two months without any complaints. [ 49 ] Dr. Farrell provided a further medical memo July 28, 1987 (No. 48), relating to Mr. Keough’s incident of having a CSF leak with meningitis. Dr. Farrell recommended that the Commission accept the claim as a complication of the original injury. Again, Dr.

Farrell did not provide an opinion relating to Mr.Keough being totally disabled. Permanent Functional Impairment (“PFI”) Award [ 50 ] In his submission for reconsideration by the Chief Review Commissioner Marlene Hickey, Mr. Keough raised for the first time that the Review Commissioner placed insufficient weight on the amount of his PFI award. It appears that it was not an issue in any of the decisions of the Commission or in the decision of Review Commissioner. As well, it was not relied upon in these proceedings. In any event, the Chief Review Commissioner dealt with the matter in her report and Mr.

Keough has not responded further. Natural Justice [ 51 ] In correspondence and submissions, Mr. Keough alleges that there has been a denial of natural justice in the Commission’s failure to provide wage loss benefits. More specifically, in the Application, Mr.

Keough alleges that he was denied natural justice in that he had an injury in 1980 and despite his efforts to return to work he was unable to do so and was forced to obtain social assistance and CPP Disability Benefits. [ 52 ] A further denial of natural justice is alleged in that the Commission did not follow the CPP in providing compensation to him. [ 53 ] There is no evidence or even an allegation that Mr. Keough’s treatment by the Commission or the Review Commissioner has been tainted by bias or by the refusal to grant him a hearing, or otherwise to treat him fairly.

However, the matters raised in the context of natural justice are otherwise dealt with as part of other issues put forward by Mr. Keough. [ 54 ] The record indicates that Mr. Keough was represented by Counsel in 1985 and again commencing 2010. Reference To The Osmond Decision [ 55 ] In the concluding part of his decision, the Review Commissioner confirmed that the approval of CPP Disability Benefits would not automatically determine the outcome of the Commission’s decision.

Reference is then made to the Court of Appeal decision, Osmond , wherein the Court directed that where there is conflicting evidence which could give rise to the drawing of more than one reasonable inference, there is no automatic presumption in favor of a claimant simply because some evidence supports his or her claim. The excerpt from Osmond goes on to state that in such cases, the decision-maker must view the evidence as a whole. [ 56 ] Mr. Keough, in his Application to the Court, maintains that the Review Commissioner’s

interpretation of this aspect of that decision which gives the Commission the latitude to reject his claim is contrary to natural justice. weighing the evidence [ 57 ] The main argument put forward by Mr. Keough is the contention that the Review Commissioner improperly weighed and considered the evidence by placing insufficient weight on some evidence and placing excessive weight on other evidence. [ 58 ] Mr. Keough submits the Review Commissioner erred in not totally accepting the medical opinion of Dr.

Parsons to the exclusion of other evidence which called into question the physician’s conclusion that he was essentially completely disabled since his head injury in 1980. In his written submission, Mr. Keough stated: “… this Court has only to read the report of Dr. Parsons to get the true story”. [ 59 ] The Review Commissioner in assessing the evidence took into consideration Dr. Faridi’s opinion that in September 1987, Mr. Keough was able to return to work following the meningitis incident. In fact, Mr. Keough did return to work for a period of 5 years from 1988 – 1992. As well, Mr.

Keough and his family physician were unable to produce any medical evidence for his discontinuing working and accessing social assistance. [ 60 ] It is unnecessary to view all aspects of the evidence before the Review Commissioner, who was aware of his role under s. 60 of the Act . He reviewed all the evidence in detail putting forward Mr. Keough’s views that he made with respect to this evidence. [ 61 ] After considering the evidence and the arguments put forward, the Review Commissioner came to the conclusion that there

was a lack of medical evidence to support Mr. Keough’s inability to work was directly related to the 1980 injury. [62] The Review Commissioner summarized the following factors which gave rise to his decision: 1. Mr. Keough did return to work for approximately 5 years following the 1987 menengitis incident. 2. Dr. Faridi, a Neurosurgeon, in September 21, 1987 provided a written opinion confirming Mr. Keough’s ability to return to work. 3. Mr. Keough has received social assistance since 1993 and there is no medical evidence to support that this is the result of adisability. 4. Mr.

Keough’s file does not contain any medical reports between Dr. Faridi’s September 21, 1987 report and the report submitted byDr. Parsons on July 6, 2010. 5. Dr. Parsons’ report does not provide medical evidence to support Mr. Keough’s claim that he has been totally disabled since the1980 injury. [63] Aside from the report of Dr. Parsons, Mr. Keough referred to other evidence on the issue of his continuing disability to supporthis position. Dr. Farrell’s reports were clearly not helpful on this issue, while Dr. Walker’s report was not relevant.

As well, CPPDisability Benefits approval while relevant could not be a determining factor. reasonableness of the decision of the review commissionER [64] The jurisdiction of the Review Division and its Review Commissioners is confirmed in ss. 26(1) of the Act, which provides thata Review Commissioner may review a decision of the Commission to determine if the Commission acted in accordance with the Act, theregulations and policies established by the Commission’s Board of Directors. Our Court of Appeal held that the role of ReviewCommissioner is that of review, and not of appeal.

Newfoundland (Workers' Compensation Commission) v. Breen (1997), (NL CA), 149 Nfld. & P.E.I.R. 335, 467 A.P.R. 335 (Nfld. (C.A.)). [65] Therefore, in these proceedings it must be decided whether Review Commissioner Piercey’s decision was rendered inaccordance with the Act and applicable policies, and fulfills the requirements of the reasonableness standard as set out previously in thisdecision. [66] The decision of the Review Commissioner demonstrates that he was aware of the restrictions imposed by s. 77 of the Act andPolicy EN-03; Recurrences. While Mr.

Keough’s claim for recurrence was accepted by the Commission, his entitlement was limited tohealth care benefits as he did not qualify for wage loss benefits. The Act and the Policy would not entitle him to wage loss benefits as hewas not working at the time of the recurrence and had not worked since 1993 at which time he commenced to collect social assistancebenefits. [67] Mr. Keough did not refer to s. 74 and s. 77 of the Act or to Policy EN-03; Recurrences.

In his request for internal review datedMay 24, 2012, his claim for compensation was summarized as: There will be an evolution of payments to which he would be entitled which would take into account inflation and the cost of living, suchthat the amount of money that he was entitled to in 1980 would have risen demonstrably since that time. [68] Mr.

Keough did not refer to any provisions in the Act, its regulations or any Policy of the Commission to justify this type ofcompensation. [69] The Review Commissioner clearly considered all the evidence in accordance with s. 60 of the Act as well as with Policy EN-20:Weighing Evidence. In considering the evidence, he assigned the weight he considered to be appropriate and found that the decision ofthe Commission was made in accordance with the Act, regulations and policies. [70] In determining that Mr.

Keough was not entitled to wage loss benefits, the Review Commissioner referred to and correctlyapplied judicial precedent on the issue of weighing conflicting evidence, a major issue in these proceedings. Osmond confirmed that adecision-maker, when weighing conflicting opinions and after considering all the evidence is permitted to reject the opinions in favor ofa claimant, if the evidence considered in it entirety supports that result. [71] In

summary, the Review Commissioner concluded that Mr. Keough, while entitled to receive health care benefits with respectto the recurrence of his injury, was not entitled to wage loss benefits. This issue is within its core function and expertise, and involves aninterpretation of the Act and policies established in accordance with the Act. The conclusion reached by the Review Commissioner isreasonable and falls within a range of acceptable results that are defensible on the facts and law. DISPOSITION [72] This application for certiorari is dismissed. There is no order as to costs. _____________________________ David F. Hurley Justice