2013 NBCA 32, 2013 NBCA 32

COURT OF APPEAL OF NEW BRUNSWICK 91-11-CA PAUL WILLIAMS APPELLANT PAUL WILLIAMS APPELANT - and - - et - WORKPLACE HEALTH, SAFETY ANDCOMPENSATION COMMISSION RESPONDENT COMMISSION DE LA SANTÉ, DE LA SÉCURITÉET DE L’INDEMNISATION DES ACCIDENTS AUTRAVAIL INTIMÉE Williams v. Workplace Health, Safety andCompensation Commission, 2013 NBCA 32 Williams c.

Commission de la santé, de la sécurité etde l’indemnisation des accidents au travail,2013 NBCA 32 CORAM: The Honourable Justice Robertson The Honourable Justice Bell The Honourable Justice Green CORAM : L’honorable juge Robertson L’honorable juge Bell L’honorable juge Green Appeals Tribunal established under the WorkplaceHealth, Safety and Compensation Commission Act: February 17, 2011 Tribunal d’appel établi en vertu de la

Loi sur laCommission de la santé, de la sécurité et del’indemnisation des accidents au travail : Le 17 février 2011 History of case: Decision under appeal: 20105825 (Re), (NB WHSCC) Preliminary or incidental proceedings: N/A Historique de la cause : Décision frappée d’appel : 20105825 (Re), (CSSIAT N.-B.) Procédures préliminaires ou accessoires : S.O. Appeal heard: June 12, 2012 Appel entendu : Le 12 juin 2012 Judgment rendered: May 2, 2013 Jugement rendu : Le 2 mai 2013

Reasons for judgment: The Honourable Justice Green Motifs de jugement : L’honorable juge Green Concurred in by: The Honourable Justice Robertson The Honourable Justice Bell Souscrivent aux motifs : L’honorable juge Robertson L’honorable juge Bell Counsel at hearing: For the appellant: Peter H. MacPhail For the respondent: Charles A. LeBlond, Q.C. Avocats à l’audience : Pour l’appelant : Peter H. MacPhail Pour l’intimée : Charles A. LeBlond, c.r. THE COURT The appeal is dismissed. The judgment of the Court was delivered by GREEN J.A. I.

Introduction [ 1 ] The Appeals Tribunal established under the Workplace Health, Safety and Compensation Commission Act , S.N.B. 1994, c. W-14, upheld the Commission’s decision to suspend the appellant’s compensation benefits. The Appeals Tribunal cited as its reason the appellant’s “continued lack of participation in his recovery/personal wellness program and the medical opinions of the cadre physician and the case management team”. Mr. Williams now appeals that decision. For the reasons which follow, I would dismiss the appeal. II.

Factual Background [ 2 ] The appellant, a scaffolder, sustained a lower back injury while working on September 6, 2006. He subsequently filed a “Report of Accident or Occupational Disease” with the Commission. In a letter dated September 11, 2006, the appellant was notified, “[…] that your claim for compensation benefits as a result of your low back injury on September 06, 2006 has been accepted. Approved medical costs related to this injury will be paid”. The appellant received weekly benefits from October 20, 2006, to June 14, 2007.

No one has contested that the appellant sustained an injury, nor has anyone challenged that it arose out of and in the course of his employment.

[3] In a letter dated June 5, 2007, the Commission advised the appellant as follows: […] the Case Management Team has determined that you have had full access to the necessary medical aid to recover from yourcompensable back strain and this back strain is not the limiting factor for your return to work. In contrast, it is determined that yourparticipation level and pre-existing health conditions may be the main barrier for return to work. Therefore, your case will beclosed for compensation benefits effective June 13, 2007. [Appeals Tribunal decision, p. 3] [4] The decision was appealed.

At an Appeals Tribunal hearing held on October 29, 2008, theappellant was successful. The Panel concluded, “ […] the Commission has erred in closing the claim rather than diminishing orsuspending benefits as entitled by virtue of subsection 41(16) of the Act”.

Thereafter, the appellant received compensation benefits fromJanuary 1, 2008 to August 17, 2008, and from August 19, 2008, to March 28, 2009. [5] The appellant received a subsequent letter from the Commission, dated March 9, 2009, on thisoccasion advising his benefits were to be suspended (I will delve briefly into the findings and conclusions underpinning this decision insubsequent paragraphs). This was also taken to the Appeals Tribunal, which denied the appeal in a decision dated February 17, 2011. III. Issue [6] The sole issue to be determined is whether or not the appellant’s benefits should be reinstated.

In support of his position, the appellant contends the Appeals Tribunal erred in its application of s. 41(16) of the Workers CompensationAct, R.S.N.B. 1973, c. W-13. More particularly, the appellant contends there was evidence before the Appeals Tribunal that his “pre-existing condition did not inhibit his ability to work and the obstacles relied upon by the commission directly result from the workrelated injury”. IV. Law and Analysis A.

Standard of Review [7] The appropriate starting point is to set out the standard of review applicable to appeals fromdecisions of the Tribunal, as articulated on behalf of the Court by Robertson J.A. in The City of Saint John v. The Workplace Health,Safety and Compensation Commission of New Brunswick and Rowe, 2008 NBCA 83, 338 N.B.R. (2d) 213: I begin my analysis with a brief discussion of the relevant principles surrounding the standard of review to be applied to decisions of theAppeals Tribunal.

For purposes of deciding this appeal, the significance of the Supreme Court's recent decision in Dunsmuir v.New Brunswick, [2008] S.C.J. No. 9 (QL), 2008 SCC 9, may be restricted to the reality that there are only two review standards:correctness and reasonableness. The third review standard of patent unreasonableness has been eliminated and, hence, in cases wheredeference is owed, the review standard must be reasonableness. Applying Dunsmuir, the jurisprudence of this Court is consistentwith the following general framework.

With respect to pure questions of law or jurisdiction, decisions of the Appeals Tribunals are owedno deference and, hence, correctness is the applicable review standard. When it comes to allegations of breaches of the fairness duty, thegeneral rule is that no deference is owed the tribunal's ruling. The standard of review with respect to questions of fact remains "palpableand overriding". This applies equally to findings of credibility. Questions of mixed fact and law are owed deference on the reviewstandard of reasonableness.

In my opinion, the Appeals Tribunal did not breach the fairness duty, nor did it commit a palpable andoverriding error in deciding as it did. With respect to the relevant jurisprudence: see Gallant v. Workplace Health, Safety andCompensation Commission (N.B.) (2000), (NB CA), 228 N.B.R. (2d) 98 (C.A.); Keddy v. Workplace Health, Safetyand Compensation Commission (N.B.) et al. (2002), 247 N.B.R. (2d) 284, [2002] N.B.J. No. 91 (QL), 2002 NBCA 24, D.W. v.Workplace Health, Safety and Compensation Commission (N.B.) et al. (2005), 288 N.B.R. (2d) 26, [2005] N.B.J.

No. 282 (QL), 2005NBCA 70, Fortis Properties Corp. et al. v. United Steelworkers of America, Local 1-306 et al. (2007), 312 N.B.R. (2d) 224, [2007]N.B.J. No. 68 (QL), 2007 NBCA 16 at para. 6, Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31 (QL), 2002 SCC 33,H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, [2005] S.C.J. No. 24 (QL), 2005 SCC 25. [para. 4]

For the sake of clarity, I make the following comment. For all practical purposes, there is no substantive difference between the “palpable and overriding” standard of review and the standard of reasonableness. While one term has been employed when our Court is asked to undertake a review of a question of fact, and the other a question of mixed fact and law, it may fairly be characterized as a distinction without a real difference. To clarify even further, I would add this: the palpable and overriding test applies to both questions of fact and questions of mixed fact and law.

For a full discussion on point, see Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235 . An error which is palpable and overriding is, by definition, unreasonable. B. Key Statutory Provision [ 8 ] Subsection 41(16) of the Workers Compensation Act reads as follows: 41

(16) The Commission may also in its discretion diminish the compensation to which a worker is entitled or suspend payment thereof whenever the worker persists in dangerous and unsanitary practices imperilling or retarding his cure, or whenever he refuses to submit to such medical treatment and surgical aid as the Commission may deem necessary for his cure. R.S., c.255, s.38; 1953, c.25, s.27 ; 1961-62, c.72, s.15 ; 1965, c.48, s.6 ; 1975, c.92, s.6; 1980, c.56, s.9 ; 1981, c.80, s.3, 17 ; 1992, c.52, s.35 ; 1994, c.70, s.12 ; 2002, c.23, s.12 . 41

(16) La Commission peut aussi à sa discrétion diminuer l’indemnité à laquelle un travailleur a droit ou en suspendre son paiement chaque fois que le travailleur persiste dans des pratiques dangereuses et malsaines qui compromettent ou retardent sa guérison, ou chaque fois qu’il refuse de se soumettre au traitement médical et à l’intervention chirurgicale que la Commission, le cas échéant, juge nécessaires à sa guérison.

S.R., c.255, art.38; 1953, c.25, art.27 ; 1961- 62, c.72, art.15 ; 1965, c.48, art.6 ; 1975, c.92, art.6; 1980, c.56, art.9 ; 1981, c.80, art.3, 17 ; 1992, c.52, art.35 ; 1994, c.70, art.12 ; 2002, c.23, art.12 . C.

The Tribunal’s Decision [ 9 ] After applying the above-noted provision to the facts of this case, the Appeals tribunal came to the following conclusion: It is the opinion of the Appeals Panel there is an abundance of information, both medical and clinical including an independent medical assessment, to support the Commission’s decision to suspend the appellant’s compensation benefits as a result of his failure to meet his responsibilities with respect to clinical rehabilitation, thus impeding his recovery and return-to-work goal. [Appeals Tribunal decision, p. 8.] [ 10 ] In reaching this conclusion, the Appeals Tribunal relied heavily on an independent medical assessment conducted on January 13, 2009.

The Tribunal noted and highlighted the following key points from that assessment: Mr. [the appellant] states that he has not seen any significant improvement since starting physiotherapy. According to his physiotherapist, he has been spending very little time in the gym following his treatments where he is supposed to be working on the treadmill and using the Bowflex machine. Mr. [the appellant] stated that he was only able to spend four to five minutes on the treadmill and has not been making any effort to try and increase this.

He denies having a home exercise program although his physiotherapist states that he was given one and he has not [been] doing any exercises at home. His physiotherapist notes that there are some days at the clinic where he has very little pain but he still does not make much effort to increase his physical activity. It is therefore thought that he is performing below his functional ability during his physiotherapy sessions.

[…] Mr. [the appellant] suffers from chronic mechanical low back pain. No red flags were identified today. … Multiple non-compensable factors contributing to chronic low back pain included morbid obesity and physical deconditioning, dyspnea secondary to chronic bronchitis/COPD limiting his physical activity, chronic pain syndrome, possible depression, and lack of participation in treatment. Mr. [the appellant]’s recovery time is well beyond that expected for a soft tissue injury and there was no objective evidence on today’s examination to support a more serious underlying etiology for his back pain.

In light of this, I think the biggest obstacles to Mr. [the appellant]’s recovery are the above-mentioned non-compensable issues and motivational factors.

This was discussed with Mr. [the appellant] today and he was strongly encouraged to take a more active role in his treatment and in improving his general health and well being. [Appeals Tribunal decision, p. 7] [ 11 ] Concluding its analysis, the Appeals Tribunal reiterated the rationale for its disposition of the appeal: In light of the appellant’s continued lack of participation in his recovery/personal wellness program and the medical opinions of the cadre physician and the case management team the Panel agrees with the Commission’s decision: Considering all the medical information presented in this letter, the Case Management Team has determined that you have had full access to the necessary medical aid to recover from your compensable back strain and this back strain is not the limiting factor for your return to work or recovery.

In contrast, it is determined that your non-compensable pre-existing health conditions are the dominant disabling factor for your return to work as a scaffolding carpenter. Therefore, your case will be suspended for compensation benefits effective March 27, 2009 until the above noted tests are met removing the disabling conditions. Throughout your case, we have strived to meet our legislated responsibility to assist in your recovery. … [page 289 of the Appeal Record] And consequently the appeal of Issue 1 is denied.

The Panel noted that the Commission did provide the appellant with some suggestions to assist him in addressing his personal physical health issues and also potential financial concerns. [Appeals Tribunal decision, p. 11] D. The Positions of the Parties and Conclusion [ 12 ] The appellant argues there was a miniscule amount of evidence of non-compliance. He acknowledges his weight issue and respiratory problems, but strenuously denies these pre-existing conditions prevented him from working.

The appellant maintains he had always been able to perform his assigned work prior to his injury, in spite of his health challenges. He further argues the injury did not aggravate his pre-existing conditions, and therefore the reasons he could no longer work were tied directly to the injury sustained while at work. [ 13 ] For its part, the respondent argues the Court must consider whether there was sufficient evidence before the Commission, and the Appeals Tribunal, to support the suspension of benefits.

It alleges the reliance by the Appeals Tribunal on the opinion of the physician who performed the independent medical assessment constitutes a finding of fact, which attracts the reasonableness standard of review. The respondent further contends there was ample evidence before the Appeals Tribunal to support a finding of non-compliance on the part of the appellant. [ 14 ] In order for the appellant to succeed, he must establish reversible error on the part of the Appeals Tribunal. In my opinion, such an error does not exist. It was open to the Tribunal to rely upon the independent medical assessment.

There was an evidentiary foundation sufficient to support the finding the appellant was not complying with his prescribed treatment. Further, there was an evidentiary foundation sufficient to support the finding that the appellant’s inability to return to work

was caused by factors unrelated to his workplace injury. In the face of that evidentiary reality, the deference doctrine precludes any form of appellate intervention. The question is not whether this Court would necessarily have reached the same conclusion as the majority of the Appeals Tribunal panel. The decision rendered by the Tribunal satisfies the reasonableness test, and the discussion must of necessity end on that central point. V. Disposition [ 15 ] I would dismiss the appeal, and order each party to bear its own costs. ________________________________ BRADLEY V. GREEN, J.A.

WE CONCUR: ________________________________ J.T. ROBERTSON, J.A. ________________________________ B. RICHARD BELL, J.A.