2011 NBCA 45, 2011 NBCA 45

COURT OF APPEAL OF NEW BRUNSWICK 21-10-CA CERTAINTEED GYPSUM CANADA, INC. APPELLANT CERTAINTEED GYPSUM CANADA, INC. APPELANTE - and - - et - WORKPLACE HEALTH, SAFETY AND COMPENSATION COMMISSION and RICHARD DYER RESPONDENTS COMMISSION DE LA SANTÉ, DE LA SÉCURITÉ ET DE L’INDEMNISATION DES ACCIDENTS AU TRAVAIL et RICHARD DYER INTIMÉS Certainteed Gypsum Canada, Inc. v. Workplace Health, Safety and Compensation Commission and Dyer, 2011 NBCA 45 Certainteed Gypsum Canada, Inc. c.

Commission de la santé, de la sécurité et de l’indemnisation des accidents au travail et Dyer, 2011 NBCA 45 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 Appeal from a decision of the Appeals Tribunal of the Workplace Health, Safety and Compensation Commission : November 20, 2009 Appel d’une décision du Tribunal d’appel de la Commission de la santé, de la sécurité et de l’indemnisation des accidents au travail : Le 20 novembre 2009 History of case: Decision under appeal: Decision No.: 20095442 Preliminary or incidental proceedings: N/A Historique de la cause : Décision frappée d’appel : Décision n o 20095442 Procédures préliminaires ou accessoires : S.O.

Appeal heard: June 8, 2010 November 17, 2010 Appel entendu : Le 8 juin 2010 Le 17 novembre 2010

Judgment rendered: May 19, 2011 Jugement rendu : Le 19 mai 2011 Reasons for judgment by: The Honourable Justice Bell Motifs de jugement : L’honorable juge Bell Concurred in by: The Honourable Justice Robertson The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Robertson L’honorable juge Green Counsel at hearing: For the appellant: Richard G. Petrie and Clarence L. Bennett For the respondent Workplace Health, Safety and Compensation Commission: Matthew R. Letson and David M. Brown The respondent, Richard Dyer, appeared in person Avocats à l’audience : Pour l’appelante : Richard G.

Petrie et Clarence L. Bennett Pour l’intimée la Commission de la santé, de la sécurité et de l’indemnisation des accidents au travail : Matthew R. Letson et David M. Brown L’intimé Richard Dyer a comparu en personne. THE COURT The appeal is dismissed without costs. LA COUR Rejette l’appel sans dépens. The judgment of the Court was delivered by BELL J.A I. Introduction and Facts [ 1 ] On July 13, 2006, Mr. Richard Dyer, who at that time was employed at the appellant’s sheetrock manufacturing facility in McAdam, claimed he suffered a workplace injury while working at the “dunnage machine”.

A dunnage machine is a piece of equipment equipped with rollers and knives which cuts rejected pieces of sheetrock into strips. In the report of accident filed pursuant to the Workplace Health, Safety and Compensation Commission Act , S.N.B. 1994, c. W-14, Mr. Dyer described the accident as follows: “Repetitedly hit elbow’s on machine [ sic ]”. I would note that Mr. Dyer complained about a repetitive type injury and not about one specific incident. [ 2 ] Dr. P. Smith, in his first report, received by the Workplace Health, Safety and Compensation Commission on July 17, 2006, diagnosed Mr.

Dyer’s injury as epicondylitis, a syndrome commonly referred to as “tennis elbow”. The objective findings at that time included swelling and tenderness of both elbows. Recommended treatment included a forearm strap, immediate physiotherapy, and the prescription of medications including Tylenol and Flexeril. Dr. Smith also recommended that Mr. Dyer remain off duty for 3 to 4 weeks.

[ 3 ] In the course of its own investigation of Mr. Dyer’s complaints the appellant engaged orthopaedic surgeon, Dr. Harold Touchie, to conduct a medical examination. Dr. Touchie’s report confirmed Dr. Smith’s findings. The appellant then engaged Workplace Insurance Management and Mediation Inc. to investigate the matter, conduct a critical review of the medical reports (including that prepared by Dr. Touchie) and provide an opinion on causation. The Commission denied Mr. Dyer’s claims for compensation benefits on five separate occasions.

On each occasion it concluded the injury did not arise out of and in the course of Mr. Dyer’s employment. [ 4 ] Mr. Dyer appealed to the Appeals Tribunal, established pursuant to s. 20 of the Act . The Tribunal concluded the injury arose out of and in the course of Mr. Dyer’s employment, and allowed the appeal. The appellant now appeals based upon a statutory right of appeal found in s. 21(12) of the Workplace Health, Safety and Compensation Commission Act , S.N.B. 1994, c.

W-14 which provides as follows: Any decision, order or ruling of the Appeals Tribunal shall be final, subject only to an appeal to the Court of Appeal involving any question as to its jurisdiction or any question of law. II. The decision below [ 5 ] In its 5-page decision, the Appeals Tribunal defined the issue as being whether Mr. Dyer’s injury “arose out of and in the course of employment”. The Chairperson, after having told those assembled that witnesses are normally sworn, failed to administer the oath to Mr. Dyer. The oath was administered to the Employer’s witness, plant manager Jason Davies.

Consequently, the Tribunal received unsworn evidence from Mr. Dyer and sworn evidence from Mr. Davies. In addition to the oral evidence the Tribunal received the 390-page appeal record which included photographs of the dunnage machine and manuals related to its operation, medical reports, occupational therapy reports, ergonomic reports, physician reports, and the report prepared by the appellant’s private adjusting firm. Finally, the Tribunal had the benefit of oral argument from Mr.

Dyer’s and the Employer’s representatives, neither of whom were lawyers. [ 6 ] In providing the rationale for its decision, the Tribunal referred to reports prepared by Drs. P. Smith, A.J. Berkshire, B. Poole and H. Touchie and the appellant - sponsored physiotherapist’s report. In assessing the weight to be given to the reports, the Tribunal stated that it placed “greater weight” on the opinions of the physicians than it did on that of the physiotherapist. The Tribunal referred to 11 reports prepared by Dr. Smith and commented as follows: In every one of these reports, Dr.

Smith refers to tennis elbow as being the cause of the disablement. The continuity and consistency in which the appellant was reviewed for this injury establish a path of reliability on behalf of Dr. Smith’s diagnosis. [ 7 ] With respect to Dr. Touchie’s report the Tribunal observed: Fourth, Dr. H. Touchie, orthopaedic surgeon, performed an independent medical examination of the [respondent] on October 22, 2007. His report is found on pages 147-159 of the Appeal Record. The important points from this review were that Dr.

Touchie believed the [respondent’s] main factors leading to the chronic epicondylitis resulted from the type of work carried out on the Dunnage machine that he described and primarily the lifting, pulling and management of the drywall sheets. III. Issues [ 8 ] The appellant contends the Tribunal committed errors of law and jurisdiction which can be summarized as follows:

A. Failing to administer an oath to one of the witnesses, Richard Dyer, who was a claimant under the workers’ compensation scheme; B. Disregarding and misinterpreting evidence; and C. Rendering a decision that was unreasonable in the circumstances. For the reasons set out below, I would dismiss the appeal. IV. Analysis [9] Although this case comes before the Court by way of appeal as opposed to judicial review, the observationsof the Court in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 with respect to issues of jurisdiction are instructive.

TheCourt held that the standard of correctness continues to apply in respect of jurisdictional questions. The Court cautioned intermediatecourts of appeal and lower courts not to extend the notion of jurisdiction to broad

definitions adopted before the case of Canadian Unionof Public Employees, Local 963 v. New Brunswick Liquor Corporation, (SCC), [1979] 2 S.C.R. 227. Rather,jurisdiction is understood in the narrow sense of whether or not the Tribunal had the authority to make the inquiry.

In the words ofBastarache and LeBel, JJ.A.: “… true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grantof power gives it the authority to decide a particular matter” (Dunsmuir, at para. 59). [10] Dunsmuir also cautions that, for purposes of judicial review, a restrictive approach should be taken toquestions of law. In such cases, a question of law constitutes one of general law “that is both of central importance to the legal system asa whole and outside the adjudicator’s specialized area of expertise” (see Toronto (City) v.

C.U.P.E., Local 79, 2003 SCC 63, [2003] 3S.C.R. 77, at para. 62). Given that this matter comes to the Court by way of appeal rather than judicial review it would be inappropriateto restrict questions of law as proposed in Dunsmuir. With that observation in mind, it is useful to restate the standard of review inappeals from the Appeals Tribunal, as formulated by Robertson, J.A. in Saint John (City) v. Workplace Health, Safety and CompensationCommission (N.B.) et al. (2008), 338 NB.R. (2d) 213, [2008] N.B.J.

No. 440 (QL), 2008 NBCA 83 where he said: With respect to pure questions of law or jurisdiction, decisions of the Appeals Tribunal are owed no deference and, hence, correctness isthe applicable review standard. When it comes to allegations of breaches of the fairness duty, the general rule is that no deference isowed the tribunal’s ruling. The standard of review with respect to questions of fact remains “palpable and overriding”. This appliesequally to findings of credibility. Questions of mixed fact and law are owed deference on the review standard of reasonableness. [para.4] See also Fundy Linen Service Inc. v.

New Brunswick (Workplace Health, Safety and Compensation Commission), [2009] N.B.J. No. 41,2009 NBCA 13 at para. 12; and, Creighton v. New Brunswick (Workplace Health, Safety and Compensation Commission), [2009] N.B.J.No. 359, 2009 NBCA 73 at para. 13; New Brunswick Power Generation Corporation v. Workplace Health, Safety and CompensationCommission and Dashwood, 2011 NBCA 47. A. Failure to administer an oath to one of the witnesses [11] The appellant contends the Tribunal erred in law by failing to administer an oath to Mr. Dyer after havingadvised those in attendance that witnesses would be sworn.

The appellant says this oversight is compounded by the fact itsrepresentative, Mr. Davies, testified under oath and Mr. Dyer did not. While there is some merit to the appellant’s position that either allor none of the “witnesses” should be sworn, I conclude the failure to administer an oath to Mr. Dyer was simply an oversight upon whichnothing turned. In reaching this conclusion I would make the following observations. • even though the oath was not administered to Mr. Dyer, the Tribunal questioned his credibility on some matters. Conversely, theChairperson commended Mr. Davies for being very forthright.

It would appear the Tribunal made no distinction between the twowitnesses based upon whether or not an oath was administered; • numerous reports, including those prepared by the appellant or its representatives and the contents of the Record on Appeal, wereaccepted at the hearing without having been admitted through ‘sworn’ testimony; and,

• it is trite law the Tribunal is entitled to determine its own procedure, and is not bound by the Rules of Court , or the strict rules of evidence. [ 12 ] Finally, although a very different issue was under consideration in Fundy Linen Service Inc. v. Workplace Health, Safety and Compensation Commission Robertson J.A.’s observations about how the evidence of elected officials might be placed before the Appeals Tribunal is instructive.

He observed: In my view, the general rule should be formulated such that elected members of the governing party of the Legislative Assembly should not appear as a witness unless the tribunal concludes that exceptional circumstances exist. I suspect that, in the typical case, the elected official will be asked to testify to factual matters within his or her knowledge. If that were so, it would be just as efficacious for the Minister or MLA to provide a letter outlining facts that are relevant to the tribunal’s deliberations.

So long as the letter advances the legitimate interests of the constituent, without giving the appearance that the Minister or MLA is attempting to improperly influence the outcome of a case, there is no cause for complaint under the bias doctrine. [para. 30] [ 13 ] Clearly, if the Appeals Tribunal is permitted to consider the contents of an unsworn letter in matters before it, subject of course to requests for cross examination, it neither loses jurisdiction nor errs in law by inadvertently failing to administer an oath to a witness. [ 14 ] To the extent this issue could be framed as one going to the fairness of the hearing, I am of the view the evidence demonstrates the appellant suffered no prejudice as a result of the Tribunal’s failure to administer an oath.

B. Disregarding and misinterpreting evidence [ 15 ] The appellant contends the Appeals Tribunal erred in law by failing to consider evidence, disregarding a risk assessment, failing to consider certain reports, unreasonably interpreting others and improperly deciding the issue of causation. All of the issues raised by the appellant under this ground of appeal fall squarely within the jurisdiction of the Tribunal. Furthermore, they all relate to findings of fact based upon the Tribunal’s assessment of the evidence.

Essentially, the appellant would have this Court ignore the concept of deference to findings of fact made by the decision maker, revisit the 390-page record and ignore the jurisprudence which holds that causation in such cases is a question of fact: Doiron v. Workplace Health, Safety and Compensation Commission of New Brunswick , 2003 NBCA 82 , 265 N.B.R. (2d) 169 . In my view there is only one evidentiary question that can be entertained by this Court: “Did the Appeals Tribunal commit palpable and overriding error in concluding the accident arose out of and in the course of Mr. Dyer’s employment”.

No such error is evident in the record before us. C. Reasonableness of the decision [ 16 ] The appellant’s arguments in support of the second and third grounds of appeal regarding the assessment of the evidence dovetail into this ground. Here, the appellant contends the decision is unreasonable because it lacks sufficient reasons. It expected more from the Appeals Tribunal. It expected the Tribunal to address the contents of the reports that it considered favourable to its position and to explain more fully the attractive features of the evidence it chose to accept.

Furthermore, it expected the Tribunal to set out the differences whenever conflicting evidence was found to exist, and express how and why it chose one version over the other. With respect, the law requires no such exercise on the part of the Tribunal. [ 17 ] Robertson, J.A., relying upon Dunsmuir , recently summarized in Bowater Maritimes Inc. v. Communications,

Energy and Paperworkers’ Union, Local 117, 146, 164 and 263 and International Longshoreman’s Association, Local 1433 , 2011 NBCA 22 the attributes of sufficient reasons in the administrative law context: The reviewing court must inquire into those qualities that make a decision reasonable.

There are two: (1) reasons that reveal “justification, transparency and intelligibility” within the decision-making process; and (2) whether the decision falls within a range of “possible, acceptable outcomes which are defensible in respect of the facts and law”. [para. 24] [ 18 ] As has already been indicated, the Appeals Tribunal set out the issue and listed the information it considered. It referred to the Commission’s decision and noted the Commission’s reason for rejecting the claim.

It observed that, based upon the preponderance of the evidence, the Commission had determined the injury did not arise out of and in the course of the respondent’s employment. It noted that was the issue it was then called upon to decide. [ 19 ] The appellant’s principal argument before the Appeals Tribunal and this Court was that the injury could not have occurred in the manner described by Mr. Dyer. He had indicated on various occasions that he repeatedly hit his elbow on a ‘nipple’ or bolt on the dunnage machine.

The appellant contended the claim must fail because of the uncontradicted evidence that it removed the nipple some months before Mr. Dyer’s claim. The Appeals Tribunal showed it was alive to this issue when it stated: The important

section to the Panel was the confirmation by Dr. Berkshire of the diagnosis of chronic lateral epicondylitis and tendonitis and his statement that the appellant’s condition […] “certainly is a repetitive strain type injury which is caused by aggravation and micro tears in the tendon that then become chronically inflamed” [page 75 of the Appeal Record]. The Panel reviewed this information in connection with the wording used on page 57 of the Appeal Record.

The appellant stated that when he slides the sheets of drywall off the tilt table onto the conveyor system, he repeatedly hits his left elbow on a vertically placed bolt that is set into the conveyor system to hold the roller in place. The discussion could continue concerning the bolt, but the main factor was that the appellant was admitting a repetitive action with the sliding of the wallboards. This was captured by the Commissions occupational therapist. [Emphasis added.] [ 20 ] With respect to the evidence of Dr. Touchie, the Tribunal observed: […] Dr.

Touchie believed the [respondent’s] main factors leading to the chronic epicondylitis resulted from the type of work carried out on the Dunnage machine that he described and primarily the lifting, pulling and management of the drywall sheets. [ 21 ] I am of the view the Tribunal’s decision meets and exceeds the requirements of justification, transparency and intelligibility. One is left with no doubt as to why the Tribunal decided the matter the way it did.

The decision takes the reader on a journey from the filing of the claim, to the first physician’s reports, through subsequent visits with other health-care professionals and reaches a conclusion that is within the range of possible outcomes consistent with the law and the facts. [ 22 ] For these reasons I would dismiss the appeal. In the circumstances I would make no award of costs. ______________________________ B. RICHARD BELL, J.A.

WE CONCUR: ________________________________ J.T. ROBERTSON, J.A. ________________________________ BRADLEY V. GREEN, J.A.