Jason Georgopoulos Applicant - v. -, 2022 ABKB 633

Court of King’s Bench of Alberta Citation: Georgopoulos v Alberta (Workers’ Compensation Board, Appeals Commission), 2022 ABKB 633 Date: 20220921 Docket: 2103 09601 Registry: Edmonton Between: Jason Georgopoulos Applicant - and - The Appeals Commission for Alberta Workers' Compensation Board and the Workers' Compensation Board of Alberta Respondents _______________________________________________________ Reasons for Decision of the Honourable Justice Kevin Feth _______________________________________________________ Overview [ 1 ] Jason Georgopoulos suffers from a workplace injury (Post-Traumatic Stress Disorder) after witnessing a fatal motor vehicle accident involving a co-worker.

The Workers’ Compensation Board accepted coverage for the injury. [ 2 ] While administering Mr. Georgopoulos’ benefits claim, the WCB determined his appropriate compensation rate, permanent clinical impairment rating, and disability status.

[ 3 ] Mr. Georgopoulos disagreed with those determinations. He sought reviews by the WCB’s internal review body, the Dispute Resolution and Decision Review Body (DRDRB). [ 4 ] On November 7, 2018, the DRDRB decided that Mr. Georgopoulos’ compensation rate should be calculated based on annual earnings of $78,492.45. [ 5 ] On March 10, 2020, the DRDRB decided that Mr. Georgopoulos’ permanent clinical impairment rating was appropriately calculated at 40 percent for his non-economic loss payment (“Non-Economic Loss Payment”) and that the criteria for permanent total disability were not met. [ 6 ] Mr.

Georgopoulos appealed those decisions to the Appeals Commission for Alberta Workers’ Compensation, the external appeal body for decisions made by the DRDRB. [ 7 ] On January 19, 2021, the Appeals Commission issued its decision (the “Appeal Decision”) confirming the calculation of Mr. Georgopoulos’ regular and overtime hours and the assessment of his Non-Economic Loss Payment. The Appeals Commission varied and remitted the following DRDRB decisions to the WCB for additional investigation:

a) his safety bonus and vacation pay; and

b) his permanent total disability status. [ 8 ] Mr. Georgopoulos disagrees with the Appeals Commission’s finding that his permanent clinical impairment rating is only 40% and the resulting Non-Economic Loss Payment. He contends that the Appeals Commission erred when interpreting and applying the provisions in the Workers’ Compensation Act , RSA 2000, c W-15 and related WCB policies. He also asserts that the Appeals Commission failed to properly consider the medical evidence about the extent of his disability and his permanent clinical impairment.

He frames his legal challenge as either a statutory appeal in accordance with s 13.4 of the Act or a judicial review, or both. [ 9 ] Mr. Georgopoulos submits that the hearing before the Appeals Commission was procedurally unfair and that the substantive decision was both incorrect and unreasonable. [ 10 ] For the reasons to follow, the application is dismissed. A statutory appeal is available to address the concerns about procedural fairness, but Mr. Georgopoulos has not demonstrated that he was denied procedural fairness.

The Appeal Decision is subject to judicial review, but he has not shown that the decision is unreasonable. Issues [ 11 ] The following issues arise from Mr. Georgopoulos’ application:

a) Does the application concern a question of law or jurisdiction engaging the appeal provision under the Act ?

b) Was Mr. Georgopoulos denied procedural fairness?

c) What is the standard of review for the issues raised on judicial review?

d) Should the Court hear a new issue raised for the first time on judicial review?

e) Was the Appeal Decision unreasonable? Preliminary issue of standing [ 12 ] The Appeals Commission requested standing to address the Court’s questions about the Certified Record of Proceedings (the “Record”), the Appeals Commission’s procedures and processes, and the standard of review. [ 13 ] A tribunal’s standing to make submissions and the scope of those submissions are in the discretion of the reviewing Court: Ontario (Energy Board) v Ontario Power Generation Inc , 2015 SCC 44 at paras 41-59 [ Ontario Power ].

When exercising that discretion, the Court must “balance the need for fully informed adjudication against the importance of maintaining tribunal impartiality”: Ontario Power at para 57 . [ 14 ] After hearing from the parties, I was satisfied that the Appeals Commission could assist the adjudication without delving into the merits of its decision or compromising impartiality. I therefore granted standing for the limited purposes described above. A statutory appeal arises on the issue of procedural fairness [ 15 ]

Section 13.4 of the Act allows any person who has a direct interest in a decision of the Appeals Commission to appeal the decision to this Court on “a question of law or jurisdiction.” [ 16 ] Mr. Georgopoulos submits that the following issues are within the scope of the statutory right of appeal, failing which they are the subject of judicial review: a. The hearing was procedurally unfair; b. The Appeals Commission erred in the

interpretation and application of ss 24(1), 24(4) and 43 of the Act , WCB Policy 04- 04, and other relevant policies of the WCB; and

c.

In reaching the Appeal Decision, the Appeals Commission failed to comply with the rules of natural justice by not givingproper weight to the medical evidence presented. [17] At the outset, the issues must be distinguished as categories of either a statutory appeal on a question of law or jurisdiction, ora judicial review applying the appropriate standard of review: Zarooben v Workers’ Compensation Board, 2021 ABQB 232 at para 44[Zarooben QB], affirmed 2022 ABCA 50 [Zarooben CA]. [18] The reviewing court “must identify the true target of the applicant’s attack, determine if it raises a question of law orjurisdiction and gauge whether the issue is arguable”: Alberta (Workers’ Compensation Board) v Alberta (Workers’ CompensationBoard Appeals Commission), 2005 ABCA 276 at para 19 [Alberta WCB]. [19] After a question is characterized, “the judge must decide whether the review of that question will proceed as a statutoryappeal, under s. 13.4(1) (questions of law or jurisdiction) or by judicial review (other questions)”: Alberta WCB at para 17. [20] The Supreme Court of Canada described the different types of questions in Canada (Director of Investigation & Research) vSoutham Inc, [1997] 1 SCR 748, at para 35: ... questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took placebetween the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests... [21] A pure legal question may be extracted from what seems to be a question of mixed fact and law: Alberta WCB at paras 22, 27and 28; Valgardson v Valgardson, 2012 ABCA 124 at para 12. [22] When considering a statutory appeal, the reviewing Court should be cautious about questions of fact or mixed fact and lawthat have been dressed up as questions of law: Patrus v Alberta (Workers’ Compensation Board), 2014 ABCA 117 at para 26. [23] The first issue on appeal alleges the hearing was procedurally unfair, in particular because the Appeals Commission allegedly“ignored” relevant evidence. [24] Issues of procedural fairness, including an allegation that a party was not able to fully and fairly present their case, raise aquestion of law: Zarooben QB at para 60; Steele v Edmonton Police Service, 2016 ABCA 95 at para 8; Keefe v Clifton Corporation,2005 ABCA 144 at para 9. [25] The second issue on appeal alleges that the Appeals Commission erred when interpreting and applying ss 24(1), 24(4) and 43of the Act, WCB Policy 04-04, and other relevant WCB policies. [26] While the

interpretation of WCB policies is a question of law, how the Appeals Commission applied its

interpretation to thefacts of a particular case involves a question of mixed fact and law: Elgie v Alberta (Workers’ Compensation Board AppealsCommission), 2009 ABCA 277 at paras 27-28; Shuchuk v Alberta (Workers’ Compensation Board Appeals Commission), 2007 ABCA213 at paras 22 and 32; Alberta WCB at paras 21-22; Zarooben QB at para 56. [27] Mr. Georgopoulos does not identify a legal or jurisdictional error that the Appeals Commission is alleged to have made, suchas failing to correctly define a legal test or a legal principle.

He also does not describe a pure question of law to be extricated from aquestion of mixed fact and law. [28] Mr. Georgopoulos argues, in part, that the Appeals Commission failed to expressly mention the statutory provisions in theAppeal Decision.

On this basis, he alleges that the Appeals Commission neither considered nor applied the statutory provisions and theWCB policies in coming to its decision. [29] An allegation that the Appeals Commission either failed to consider relevant statutory provisions or did not reasonably applythem raises a question of mixed fact and law, not a question of law or jurisdiction. [30] In any event, the Appeals Commission is presumed to know the law applicable to its proceedings because of its specializedexpertise. Each relevant

section of the statute and WCB policies need not be expressly mentioned. Nevertheless, the AppealsCommission expressly mentioned s 43 of the Act and WCB Policy 04-04, including the essential components relevant to the appeal.Section 24 of the Act was not mentioned, but that

section addresses eligibility for compensation. The Appeal Decision did not find Mr.Georgopoulos to be ineligible. In sum, no genuine issue arises about the tribunal erring in its

interpretation and application of thestatutory provisions and the WCB policies. [31] The third issue is that the Appeals Commission allegedly failed to comply with the rules of natural justice by not givingproper weight to the medical evidence presented. Concerns about the weight given to any part of the evidence involve questions of factor mixed fact and law. No error of law or jurisdiction is engaged. [32] Accordingly, the only issue for appeal is whether Mr. Georgopoulos was denied procedural fairness. The remaining issues arethe subject of judicial review.

The hearing process was procedurally fair [33] Procedural fairness is generally assessed without deference to the decision maker: Baker v Canada (Minister of Citizenshipand Immigration), (SCC), [1999] 2 SCR 817. The standard may be characterized as correctness, but the inquiry isreally whether the required procedures were followed: Mission Institution v Khela, 2014 SCC 24 at para 79; Makivik Corporation vCanada (Attorney General), 2021 FCA 184at para 78.

[ 34 ] The Appeals Commission has created rules governing the practice and procedure applicable to proceedings before it. The standard of review for the Appeals Commission’s

interpretation of its procedural rules is reasonableness. Whether the overall conduct of the hearing satisfied an acceptable standard of fairness is reviewed for correctness. See: Thompson Brothers (Construction) Ltd v Alberta (Appeals Commission for Alberta Workers' Compensation) , 2012 ABCA 78 at para 17 ; Johnson v Alberta (Appeals Commission for Alberta Workers’ Compensation) , 2011 ABCA 345 at paras 12-15 . [ 35 ] Mr. Georgopoulos provides little detail about the alleged absence of procedural fairness.

He contends that the Appeals Commission failed to give proper weight to the medical evidence and “completely ignored it.” [ 36 ] The allegation about failing to properly weigh the evidence concerns the merits of the Appeal Decision. It does not bear on whether the hearing was procedurally fair. [ 37 ] The Record does not show that the Appeals Commission “ignored” any relevant medical evidence by improperly excluding it. To the contrary, the tribunal specifically referenced medical evidence from Mr. Georgopoulos’ family physician, treating psychologist and former treating psychiatrist in the Appeal Decision.

The tribunal was not required to mention every medical report reviewed by it. Mr. Georgopoulos’ allegation is really a complaint that the Appeals Commission did not give sufficient weight to evidence allegedly supporting his position. [ 38 ] Mr. Georgopoulos does not otherwise argue that the procedures used by the Appeals Commission were unfair. He does not assert, for example, that he was unaware of the case to be met or that he was not given the opportunity to be heard by an impartial tribunal.

The hearing proceeded without the benefit of an independent medical examination, but the WCB’s psychological consultant (Dr. Virginia Newton) opined that the permanent clinical impairment rating could be determined on the available clinical documentation alone. Mr. Georgopoulos agreed through his representative that the hearing could proceed based on a documentary review without an independent medical examination. He therefore waived that examination. [ 39 ] The burden of establishing procedural unfairness rests with Mr. Georgopoulos. On the Record, no procedural unfairness has been shown.

The Appeal Decision on its face illustrates that the tribunal considered the evidence, gave Mr. Georgopoulos and his representative a full opportunity to be heard, and fully considered their arguments. The standard of review is reasonableness for the issues raised on judicial review [ 40 ] The standard of review for a decision of an administrative tribunal is presumptively reasonableness unless:

a) the Legislature dictates that a different standard applies, either by prescribing the applicable standard of review or providing a statutory appeal mechanism signaling the legislature’s intention that appellate standards apply; or

b) the presumption is rebutted because the rule of law requires that the standard of correctness be applied, as with constitutional questions, general questions of law of central importance to the legal system as a whole, and questions related to jurisdictional boundaries between two or more administrative bodies.

See: Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 at paras 16-17 , 3, 36-37 [ Vavilov ]. [ 41 ] Here, the presumption of reasonableness is not displaced by either of the exceptions. [ 42 ] Even before the Supreme Court of Canada’s direction in Vavilov , the application of WCB policies to the facts of a worker’s case attracted the standard of reasonableness: Gezehegn v Alberta (Appeals Commission of the Workers’ Compensation Board) , 2021 ABCA 93 at paras 10 , 17, 19 . [ 43 ] Reasonableness, therefore, is the standard of review for the Appeal Decision.

The Court declines to hear the issue that was not raised before the Appeal Commission [ 44 ] At the hearing of this application, Mr. Georgopoulos alleged for the first time that the WCB tendered opinions to the Appeals Commission about his permanent clinical impairment from a physician (Dr. David Ng) who was unqualified for that task. Dr. Ng is described in the Record as a “physician” and a “WCB medical consultant.” The Appeals Commission relied on Dr.

Ng’s opinions in arriving at the Appeal Decision. [ 45 ] Section 43(1) of the Act directs: If permanent disability results from an accident, the evaluation of the worker’s disability shall be made on behalf of the Board by one physician and one claims adjudicator employed by the Board. [ 46 ]

Section 1(

v) of the Act defines “physician” to mean “a person licensed or authorized under the Health Professions Act to practise any of the healing arts in Alberta.” [ 47 ] In accordance with WCB Policy 04-04, a permanent clinical impairment rating is determined by a physician using the WCB’s approved rating schedule: WCB Policy 04-04,

Part II, Application 2. The rating

schedule is found in the Alberta Permanent Clinical

Impairment Guide (the PCI Guide ). For mental impairment,

section II.B of the PCI Guide states, in part, at page 66: “Consultants appropriate to the type of impairment are employed to assess the severity of dysfunction.” [ 48 ] Mr. Georgopoulos complains that Dr. Ng was not a “consultant appropriate to the type of impairment” because he is not a psychiatrist. On this basis, the Appeals Commission allegedly erred by accepting Dr.

Ng’s evidence about mental impairment and the applicable permanent clinical impairment rating (the “New Issue”). [ 49 ] The New Issue was not raised before the Appeals Commission, so the tribunal did not have the opportunity to address the concern. [ 50 ] The argument involves the application of the language in the PCI Guide , rather than a question of law or jurisdiction, so judicial review applies rather than an appeal. [ 51 ] The Court has the discretion “not to consider an issue raised for the first time on judicial review where it would be inappropriate to do so.” Generally, this discretion “will not be exercised in favour of an applicant on judicial review where the issue could have been but was not raised before the tribunal ”: Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association , 2011 SCC 61 at paras 22-23 [ ATA ] ; Edmonton Police Service v Alberta (Information and Privacy Commissioner) , 2021 ABCA 428 at para 19 . [ 52 ] Raising an issue for the first time on judicial review may unfairly prejudice the opposing party and may deprive the hearing judge of adequate evidentiary records on which to decide the matter.

Allowing the applicant to introduce the issue on judicial review can “gut the deference owed to a tribunal by failing to raise the issue before the tribunal”: ATA at para 54 .

Further, the Court is disadvantaged by not having the tribunal’s specialized expertise in interpreting its internal policies and home legislation: Alberta Health Services v Information and Privacy Commissioner of Alberta , 2018 ABQB 467 at para 55 . [ 53 ] In this instance, I decline to exercise my discretion to hear the New Issue given the Appeals Commission’s recognized level of expertise, the real potential for prejudice in responding to Mr. Georgopoulos’ concerns, and the inadequate evidentiary record. More specifically, I note the following:

a) The Appeals Commission has specialized expertise in interpreting and applying the Act , WCB policies, and the PCI Guide . This expertise would have been utilized in assessing the New Issue, including the application of the words “consultant appropriate to the type of impairment.” A decision by the Appeals Commission would have been owed deference on judicial review.

b) The WCB is potentially prejudiced. The WCB submits that had it known Mr. Georgopoulos was contesting Dr. Ng’s qualifications, additional evidence and arguments would have been offered to the Appeals Commission about Dr. Ng’s background, including: i. the training Dr. Ng received in applying and interpreting the PCI Guide ; ii. Dr. Ng’s qualifications to provide a permanent clinical impairment rating for mental impairment; iii. the proper

interpretation of the PCI Guide ; and iv. an explanation about the permanent clinical impairment rating process.

c) As no specific evidence was before the Appeals Commission about Dr. Ng’s qualifications (other than being a physician and a WCB Medical Consultant), the Court does not have the benefit of an appropriate evidentiary foundation on which to assess the reasonableness of the New Issue. The burden of demonstrating unreasonableness rests with Mr. Georgopoulos, which burden cannot be met absent sufficient evidence. [ 54 ] In Mr. Georgopoulos’ written response to the WCB’s supplemental submissions, he argued that the New Issue was not new at all.

He tried to characterize the issue as a variation on the theme that the Appeals Commission failed to conduct a “proper” review of the evidence and should have observed that Dr. Ng was only a general physician. [ 55 ] I disagree. Dr. Ng was presented to the Appeals Commission as a person qualified to provide a permanent clinical impairment rating. His evidence was received on that basis without objection from Mr. Georgopoulos. His report indicated that he was a physician and a WCB Medical Consultant, implying that he had the necessary expertise and knowledge to offer the opinion to the WCB.

The report demonstrates his medical knowledge, that he is aware of the PCI Guide , and how he applied the guidelines in providing a rating. [ 56 ] Nothing before me suggests that Dr. Ng was required to be a psychiatrist before offering a permanent clinical impairment opinion. His function was to conduct a documentary review of the medical information gathered from multiple sources, synthesize that information, and utilize the data in applying the PCI Guide . The Appeals Commission specifically accorded significant weight to his evidence, in part, because of his “knowledge of and reference to the [PCI Guide]”.

Given the tribunal’s own expertise, that acknowledgement suggests they were aware of and had confidence in Dr. Ng’s qualifications. Nothing suggests Dr. Ng’s medical training and experience were inadequate to undertake the task at hand or that he needed to be a psychiatrist to understand the medical reports he reviewed. [ 57 ] Mr. Georgopoulos argued before the Appeals Commission that the medical opinions offered by his treating physicians differ from the conclusions reached by Dr. Ng. However, that argument did not put Dr.

Ng’s qualifications into issue before the tribunal. [ 58 ] The New Issue is discrete from the balance of the issues under review. The issue should have been raised before the Appeals Commission if it was to be advanced at all.

The Appeal Decision is reasonable [ 59 ] When conducting a reasonableness review, the Court must consider: ... the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified.

What distinguishes reasonableness review from correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place. See Vavilov at para 15 . [ 60 ] 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 .

The reasonableness standard demands that a reviewing judge defer to such a decision. [ 61 ] Mr. Georgopoulos argues that his permanent clinical impairment under the PCI Guide should be rated as a “Class V – Severe Impairment” (meaning 51% to 75% impairment). The PCI Guide defines a severe impairment as circumstances in which the worker:

a) exhibits a chronic and severe inability to function both in and out of the home;

b) exhibits evidence of major forgetfulness, lack of concentration and a neglect of personal hygiene, or suffers obvious loss of interest in the environment, extreme emotional irritability, emotional lability and uncontrolled outburst of temper, or experiences mood changes with psychotic levels of depression, severe motor retardation and psychological regression; and

c) requires constant supervision and/or confinement as well as major vocational adjustment. [ 62 ] Much of Mr. Georgopoulos’ argument is focused on reweighing the medical evidence before the Appeals Commission.

However, that approach misapprehends the role of judicial review. [ 63 ] The Supreme Court of Canada explained, in Vavilov at paras 125-26 , the limited role of judicial review in examining the evidence before the administrative decision maker: It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings. The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker” ...

That being said, a reasonable decision is one that is justified in light of the facts ... The decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them ... The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it. [ 64 ]

Section 13.2(6)(

b) of the Act directs that the Appeals Commission is “bound by the board of directors’ policy relating to the matter under appeal.” The Appeals Commission correctly observed that a permanent clinical impairment rating is determined by a physician using the WCB’s approved rating schedule. The only medical evidence from a physician using the approved rating

schedule was that of Dr. Ng. The reports from Mr. Georgopoulos’ treating physicians, psychologist, and psychiatrist did not reference WCB Policy 04-04, the PCI Guide , or the rating schedule. [ 65 ] Dr. Ng specifically considered whether Mr. Georgopoulos’ permanent clinical impairment should be rated as a Class V – Severe Impairment. The Appeals Commission noted Dr. Ng’s conclusion that Mr. Georgopoulos does not fit within that impairment class because: A class V individual would require constant supervision and/or confinement (in a psychiatric facility), which does not describe [the worker’s] level of function. See: Appeal Decision at page 21. [ 66 ] I find that a reasonable

interpretation of the medical evidence in the Record is that Mr. Georgopoulos does not require constant supervision and/or confinement in a psychiatric facility. [ 67 ] The tribunal accorded Dr. Ng’s opinion significant weight for the following reasons: • Due to his knowledge of and reference to the [ PCI Guide ], which is the approved WCB rating

schedule in this case pursuant to WCB Policy 04-04; • Because of his detailed, thorough, and reasoned review of the file, including extensive references to reports/assessments from the worker’s medical history, including reports from treating psychiatrists, psychologists, and other specialists who had treated the worker more recently, including a psychiatrist; and • Due to his ability to provide a persuasive and transparent rationale for his opinion that the worker was best classified in Class IV, and at a 40 percent [permanent clinical impairment], in light of the worker’s medical history, and the criteria in the [ PCI Guide ]. See: Appeal Decision at page 21.

[ 68 ] Dr. Ng concluded that Mr.

Georgopoulos’ presentation was best classified under Class IV – Moderate Impairment (31 – 50% impairment) of the PCI Guide , which describes the impairment as follows: The worker: i. suffers definite deterioration of familial adjustment and incipient breakdown of social integration; ii. experiences long episodes of depression evidenced by a withdrawal from family and society and significant intolerance of noise and stress, or in the case of conversion reactions, exhibits bizarre behavior and a tendency to avoid anxiety creating situations to the point of significant restriction of everyday activities; and iii. may require periodic confinement to the home or a treatment facility and will need significant vocational adjustment. [ 69 ] The Appeals Commission accepted Dr.

Ng’s reasoning for his opinion, which included the following (Appeal Decision at page 19): • There was definite deterioration of familial adjustment and incipient breakdown in social integration as evidenced by the worker’s current social circle, which was basically restricted to his Mother; • The worker was estranged from all of his siblings due to arguments and disagreements with them.

The worker also did not have regular contact with friends or individuals outside of his Mother; • It was also the consultant’s understanding that the worker was not able to look after his own needs at home independently, with his Mother cooking for him and providing him with a home; • The consultant noted that the worker still reported significant symptoms of PTSD according to the last report of a then treating psychiatrist.

The consultant also referenced the psychiatrist’s reporting that the worker “tends to be tearful and hopeless,” and “has withdrawn and has avoided many aspects of his life”; • The consultant also noted that, when the worker saw a physiatrist on February 1, 2019, he was still reported to have difficulties with PTSD symptoms with “aggravation post injury ... high scores in tests for anxiety and depression today”; • The consultant noted that, in keeping with impairment class IV, the degree of the worker’s emotional dysregulation and paranoia can reach near psychotic levels, which the consultant advised the treating psychiatrist opined was partly from the PTSD and partly from his personality profile; • Consistent with impairment class IV, the worker also required periodic admission to a psychiatric facility ... and did not appear to leave the house much except for short walks with his Mother and for appointments; and • The consultant also noted that, consistent with impairment class IV, the worker was assessed by his psychiatrist to be unable to work permanently.

The consultant concluded that: “In my medical judgment, [the worker] is at midrange of impairment class IV, which is 40% whole person impairment.” [ 70 ] Dr. Ng also considered class III, mild impairment (11 – 30% impairment), but rejected that rating for not reflecting the gravity of Mr. Georgopoulos’ impairment. [ 71 ] Dr. Ng’s opinion was detailed, supported by the medical evidence, rational, and aligned with the PCI Guide . He identified specific factors supporting his medical judgment that Mr.

Georgopoulos’ permanent clinical impairment was at the midrange of impairment class IV, being “40% whole person impairment”: David Ng Medical Report dated December 3, 2019 at page 16. The Appeal Commission’s adoption of his reasoning was transparent, intelligible, and justified by the surrounding evidence. The Appeal Decision was internally coherent and rational. [ 72 ] Mr.

Georgopoulos argues that the Appeals Commission failed to adequately consider all the medical evidence, especially the opinions from his family physician, former treating psychiatrist and treating psychologist suggesting that he was not fit for any employment.

He asks that these opinions about the nature and extent of his disability be given substantial weight in demonstrating a severe permanent clinical impairment. [ 73 ] The Appeals Commission properly noted that the PCI Guide distinguishes between “impairment” and “disability.” An impairment is: The loss of use of, or derangement of any body part, system or function. The presence and extent of impairment is determined by medical means. [ 74 ] A disability is: The decreased capacity or loss of ability of an individual to meet occupational demands , measured as loss of earning capacity.

The presence and extent of disability is determined by non-medical means, but requires knowledge of the extent of impairment. [ emphasis added ] [ 75 ] The Appeals Commission observed that a worker’s loss of earning capacity is distinct from their non-economic impairment. As explained in the PCI Guide , in most cases, impairment precedes disability, but an impaired individual may or may not be disabled from working; similarly, a worker who suffers from a disability may or may not experience an impairment: Appeal Decision at 22.

[ 76 ] In short, the concepts are distinct. A loss of earning capacity is not necessarily correlated with or predictive of the worker’s clinical impairment. The worker’s ability to function outside of the workplace may be more or less compromised than their capacity or loss of ability to perform occupational demands. [ 77 ] The distinction is reflected in the way the worker is compensated for the consequences of the injury. Loss of earning capacity is compensated through an economic loss payment. The intent of the Non-Economic Loss Payment is to “compensate the worker for the impact the injury has on the worker’s life outside of the workplace”: WCB Policy 04-04,

Part II, App 2. The latter is based on measurable clinical impairment, not loss of earning capacity: Appeal Decision at page 22, referring to the PCI Guide . [ 78 ] In canvassing the medical reports from Mr. Georgopoulos’ family physician and former treating psychiatrist, the Appeals Commission noted that those practitioners relied on Mr. Georgopoulos’ disability from work and functional limitations in the context of work to reach their conclusions about his “impairment”. The tribunal’s assessment of that evidence was reasonable.

Moreover, I agree with the tribunal that the treating practitioners did not reference or appear to apply the rating analysis required under the PCI Guide . [ 79 ] Mr. Georgopoulos’ treating psychologist made specific reference to “measurable clinical impairment” in a March 15, 2019 report, but the Appeals Commission did not afford that opinion significant weight for the following reasons:

a) the opinion appeared to be grounded in the context of returning to work, not the questions in the PCI Guide for a permanent clinical impairment;

b) the opinion pre-dated any permanent clinical impairment assessment by the WCB (the implication being that the treating psychologist did not have the benefit of reviewing or responding to that kind of analysis); and

c) no analysis was offered under either WCB Policy 04-04 or the PCI Guide . [ 80 ] I find that the tribunal’s reasoning for giving limited weight to that evidence was reasonable. The treating psychologist referenced a diagnosis of permanent disability “due to measurable clinical impairment” but offered no opinion about the degree of impairment: Eileen Ailon Psychological Report dated March 15, 2019. The analysis was focused on occupational capacity, not the whole person. The psychologist did not have the benefit of the opinion from Dr. Ng and provided no analysis under the prescribed rating framework. [ 81 ] Mr.

Georgopoulos also submits that his former treating psychiatrist and his psychologist were “likely” unaware of WCB Policy 04-04 and that the tribunal should have conducted a “proper analysis” of the medical evidence, perhaps by constituting a medical panel pursuant to s 46.3 of the Act .

Section 46.3(2) directs that the Appeals Commission “shall request that a medical panel be established to deal with the matter” where in “the Appeals Commission’s opinion, a difference of medical opinion arises in the course of the ... evaluation of a claim for compensation.” [ 82 ] That submission, however, misapprehends the contest before the Appeals Commission. The WCB offered a medical opinion about the measure of permanent clinical impairment that complied with WCB Policy 04-04 and utilized the PCI Guide . Mr. Georgopoulos did not. Consequently, no “difference” of medical opinion arose. As Mr.

Georgopoulos was the appellant, he carried the burden of introducing or identifying evidence that challenged Dr. Ng’s opinion about the degree of permanent clinical impairment and the proper rating. He failed to do so. The Appeals Commission was not required to constitute a medical panel to create the contest. [ 83 ] Mr. Georgopoulos also contends that the Appeal Decision was unreasonable because the tribunal did not expressly acknowledge that its decision must reflect “the expressed, implied spirit and intention of the legislation.” This contention is meritless.

While the Appeals Commission must respect the statutory language and interpret that language in its grammatical and ordinary sense harmoniously with the scheme and objects of the legislation and the intention of the legislature, no obligation is imposed to make such a declaration in every decision. The reasons need not mention every statutory provision: Vavilov at para 91 . [ 84 ] In

summary, the Appeals Commission expressly identified the applicable legislation and policy, described the questions to be answered, summarized the key submissions of Mr. Georgopoulos and his representative, and comprehensively set out its evidentiary findings and reasons. The tribunal explained how it weighed the evidence, why it relied on Dr. Ng’s opinion, and distinguished the opinions of Mr. Georgopoulos’ healthcare providers. [ 85 ] The tribunal’s analysis is internally coherent and rational.

The Appeal Decision demonstrates the requisite degree of justification, intelligibility, and transparency in relation to the facts and law that constrained the Appeals Commission. The outcome of the Appeal Decision is reasonable in light of its underlying rationale. Conclusion [ 86 ] Mr. Georgopoulos’ application seeking an appeal and judicial review is dismissed. [ 87 ] If the parties cannot resolve the issue of costs, they may approach me within 21 days. Heard on the 21 st day of April, 2022. Supplemental written submissions received April 29, May 3, 9, 12, 17 and 24, 2022.

Dated at the City of Edmonton, Alberta this 21 st day of September, 2022.

Kevin Feth J.C.K.B.A. Appearances: Viqar A. Quraishi, Q.C. for Jason Georgopoulos Bryanna J. White for the Workers’ Compensation Board of Alberta Peter Moreland-Giraldeau for the Appeals Commission for the Alberta Workers’ Compensation Board