WORKPLACE HEALTH, SAFETY v. COMPENSATION COMMISSION, 2015 NLCA 40

Date: 201509 08 Docket: 14/32 Citation: Workplace Health, Safety and Compensation Commission v. Reid , 2015 NLCA 40 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: WORKPLACE HEALTH, SAFETY AND COMPENSATION COMMISSION APPELLANT AND : PATRICIA REID FIRST RESPONDENT AND : WORKPLACE HEALTH, SAFETY AND COMPENSATION REVIEW DIVISION SECOND RESPONDENT Coram: Green C.J.N.L., Welsh and Hoegg JJ.A.

Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 201201G1394 Neutral Citation 2013 NLTD(G) 141 Appeal Heard: April 9, 2015 Judgment Rendered: September 8, 2015 Reasons for Judgment by Welsh J.A. Concurred in by Green C.J.N.L. and Hoegg J.A. Counsel for the Appellant: Krista Gillam Counsel for the First Respondent: Kenneth Mahoney Counsel for the Second Respondent: Stephen J. Willar

Welsh J.A.: [ 1 ] Ms. Reid sought compensation for a work-related injury. When she was unable to return to her pre-injury employment, the Workplace Health, Safety and Compensation Commission assessed her entitlement to benefits for loss of earning capacity. Ms. Reid, dissatisfied with the determination made by the Chief Review Commissioner, sought judicial review. The applications judge’s decision, setting aside the Chief Review Commissioner’s decision, is the subject of this appeal. BACKGROUND [ 2 ] Ms. Reid was injured in the course of her employment as a home care worker on June 15, 2007.

Wage loss benefits were paid pursuant to the Workplace Health, Safety and Compensation Act , RSNL 1990, c. W-11. Over time Ms. Reid commenced easeback programs which were unsuccessful. The Workplace Health, Safety and Compensation Commission (the “Commission”) provided her with programs intended to assist her in returning to work. In January 2009, Ms. Reid was referred to an orthopedic specialist, Dr. Andrew Furey. His report indicated that Ms. Reid had a chronic soft tissue injury and recommended that a functional capacity evaluation (“functional evaluation”) be undertaken.

The functional evaluation indicated an eight-hour workday tolerance at a level of light strenuousness. On August 12, 2009, the Commission’s occupational rehabilitation consultant recommended sedentary, as opposed to light work. [ 3 ] On February 10, 2010, Ms.

Reid’s case manager determined that she “had the capacity to work a full day, at a sedentary level, with restrictions; further, that she was capable of earning at the minimum wage level under NOC Code 668, with partial entitlement to extended earnings loss benefits” (decision of the applications judge, 2013 NLTD(G) 141, 342 Nfld. & P.E.I.R. 255, at paragraph 18 ). By letter dated April 29, 2010, the Commission’s internal review specialist upheld that decision (the “Commission’s decision”). [ 4 ] Ms. Reid requested a review of the Commission’s decision pursuant to sections 26 and 28 of the Act .

A hearing was held and the Review Commissioner filed a decision on September 29, 2010. The applications judge explained: [20] … Review Commissioner Harrold determined that the Commission had incorrectly engaged the labour market reentry (“LMR”) process due to the fact that the eight-hour workday tolerance, as contained in the [functional evaluation], was a prediction, not a finding of actual tolerance; further, he determined that the [functional evaluation] indicated that Ms. Reid should be graduated into her return to work activities. Review Commissioner Harrold determined that Ms.

Reid was therefore entitled to a full reinstatement of extended earnings loss benefits, until such time that the Commission correctly evaluated the [functional evaluation], and determined the direction to go in the next step of assessing the worker’s capacity to return to work. [ 5 ] That decision was reviewed by way of reconsideration and overturned by a decision of the Chief Review Commissioner dated June 23, 2011 (section 28.1 of the Act ). Ms. Reid then sought judicial review.

By decision dated November 1, 2013, the applications judge set aside the Chief Review Commissioner’s decision and remitted the matter for a second reconsideration. ISSUES [ 6 ] At issue is whether the applications judge erred by failing to apply the correct analytical approach to reviewing the Chief Review Commissioner’s decision, with a focus on the adequacy of the reasons for his decision. ANALYSIS Standard of Review [ 7 ] The parties agreed and the applications judge accepted that the Chief Review Commissioner’s decision should be reviewed on a standard of reasonableness.

Counsel took the same position on appeal. I agree. The appropriate standard of review has, in fact, been determined by this Court in previous decisions (Mount Pearl (City) v. Workplace Health, Safety and Compensation Review Division , 2008 NLCA 69 , 282 Nfld. & P.E.I.R. 14, at paragraph 26 ). Referring to the same decision, at paragraph 15, I would add that the applications judge’s decision is subject to review by this Court on a standard of correctness. The Legislation Loss of Earning Capacity [ 8 ] Section 73(1)(

c) of the Act provides that where, as a result of a workplace injury, the worker is disabled or impaired, the Commission shall pay compensation for the loss of earning capacity. Section 74(1) provides that the Commission “shall estimate the effect of the injury on the loss of earning capacity resulting from the injury and shall ensure compensation to the worker on the basis of the estimated loss.” Review of Decisions under the Act [ 9 ] Pursuant to section 19(1)(

d) of the Act , the Commission has exclusive jurisdiction to determine “the degree of diminution of earning capacity because of an injury”. Upon application by the injured worker, the Commission’s decision may be reviewed by a review commissioner “to determine if the commission, in making that decision, acted in accordance with this Act, the regulations and policy established by the commission” (section 26(1)).

[ 10 ] As a further step, an injured worker may apply to the Chief Review Commissioner for a reconsideration of a review commissioner’s decision (section 28.1). A reconsideration proceeds by way of a rehearing. Where, upon reconsideration, the Chief Review Commissioner determines that the earlier decision was not in accordance with the Act , the regulations or Commission policy, the earlier decision would be set aside, with an indication of the basis for the error.

The Chief Review Commissioner would then either make a decision in accordance with the legislation and policy or refer the matter back to the Commission (sections 28.1(4.1) and 28(4.1)). Labour Market Re-entry Assessment [ 11 ] Where it is unlikely an injured worker will be re-employed by the employer,

section 89.2 of the Act requires the Commission to provide the worker with a labour market re-entry assessment (“work re-entry assessment”). Policy RE-14 provides: A labour market re-entry assessment is conducted to determine whether a worker has transferable skills or requires assistance to re-enter the labour market and to determine whether a labour market re-entry plan is required.

A minimum of three labour market re-entry options will be identified in conjunction with the worker during the assessment process. [ 12 ] An exception to the requirement for three labour market re-entry options is set out in Policy RE-15: Where factors other than the compensable injury are preventing the worker from participating in a reasonable and feasible labour market re-entry plan, the worker will, at a minimum, be considered capable of suitable employment within National Occupational Classification “labouring and elemental occupations” minor groups for the minimum wage.

In such case, there must be documented evidence to support the finding on the balance of probabilities, that the injured worker is capable of performing in one or more of the occupations identified in the laboring and elemental minor group. Reasonableness - Adequacy of Reasons [ 13 ] In Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 , [2011] 3 S.C.R. 708, Abella J., for the Court, elaborated on the earlier decision of the Court in Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190, with respect to adequacy of reasons provided by a tribunal.

The following comments are of assistance in assessing this appeal: [12] It is important to emphasize the Court’s endorsement of Professor Dyzenhaus’s observation that the notion of deference to administrative tribunal decision-making requires “a respectful attention to the reasons offered or which could be offered in support of a decision”. In his cited article, Professor Dyzenhaus explains how reasonableness applies to reasons as follows: “Reasonable” means here that the reasons do in fact or in principle support the conclusion reached.

That is, even if the reasons in fact given do not seem wholly adequate to support the decision, the court must first seek to supplement them before it seeks to subvert them .

For if it is right that among the reasons for deference are the appointment of the tribunal and not the court as the front line adjudicator, the tribunal’s proximity to the dispute, its expertise, etc, then it is also the case that its decision should be presumed to be correct even if its reasons are in some respects defective. [Emphasis added in original.] [13] This, I think, is the context for understanding what the Court meant in Dunsmuir when it called for “justification, transparency and intelligibility”.

To me, it represents a respectful appreciation that a wide range of specialized decision-makers routinely render decisions in their respective spheres of expertise, using concepts and language often unique to their areas and rendering decisions that are often counter-intuitive to a generalist. … [ 14 ] … – the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes. … … [16] Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis.

A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion [citation omitted]. In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. [17] The fact that there may be an alternative

interpretation of the agreement to that provided by the arbitrator does not inevitably lead to the conclusion that the arbitrator’s decision should be set aside if the decision itself is in the realm of reasonable outcomes. Reviewing judges should pay “respectful attention” to the decision-maker’s reasons, and be cautious about substituting their own view of the proper outcome by designating certain omissions in the reasons to be fateful. Application of the Legal Principles [14] A principal focus of the judge’s decision relates to the adequacy and accuracy of the Chief Review Commissioner’s reasons.

She comments several times that the tribunal did not “clearly deal with” a particular issue. Read in context, this language suggests that the judge failed to consider the reasons of the Chief Review Commissioner as a whole, or to supplement the reasons, in determining whether the conclusion would fall within the range of acceptable outcomes. [ 15 ] I begin with the applications judge’s finding that the Chief Review Commissioner failed to deal with ambiguities in the functional evaluation.

The judge was particularly concerned with whether the requirement for graded easeback applied to any alternate work or only alternate work with the pre-injury employer. The applications judge noted that the functional evaluation is unclear on this point, and that it makes no reference to policy statement RE-18.

[ 16 ] However, the Chief Review Commissioner in fact made a determination that deals with the apparent ambiguity and Policy RE- 18, at page 15: I note the [functional evaluation] provides a workday prediction of 8+ hours at a light degree of strenuousness. It is in the Prognosis for Return to Alternate Work

section that a graded Easeback is recommended. Alternate Work is described in Policy RE-18. Policy RE-18 is the Policy which outlines the ‘Hierarchy of Return to Work and Accommodation’. I note Alternate Work is number six in the Priority in the sequence of return to work options. Alternate Work is described as “ A different job or bundle of duties (not the pre-injury job or duties) that are suitable and are provided to accommodate a worker who has temporary or permanent functional restrictions as a result of an injury”.

Policy RE-18 focuses on return to work with the pre-injury employer, not other employment options as may be found during the [work re-entry assessment] process. One cannot reasonably conclude from the findings of the [functional evaluation] that a recommendation for a graded easeback applies to all forms of employment as [the] Review Commissioner has found. I accept it is only with regard to pre- injury work or a recommendation for Alternate Work with the pre-injury employer. (Bold in original.) [ 17 ] This determination fell within the Chief Review Commissioner’s authority to make.

It is the type of determination which calls for deference since the Commissioner was acting within the sphere of his expertise, using concepts and language unique to his role under the Act . Further, the Commission submits that comments by other specialists, such as the Commission’s occupational therapy consultant, the work re-entry assessment coordinator, and the Commission’s case manager, support the Chief Review Commissioner’s

interpretation. The applications judge erred when she interfered with this determination. [ 18 ] The applications judge also referred to the Chief Review Commissioner’s consideration of the change from light work in the functional evaluation to sedentary work: [77] I conclude that it was unreasonable for the Chief Review Commissioner to make a finding that the degree of strenuousness was lowered from light to sedentary, because of psychosocial factors, when a plain reading of the Consultant’s report does not support this.

The rationale for this finding is not justified, transparent and intelligible within the decision, as presented. [ 19 ] In his decision, the Chief Review Commissioner determined that psychosocial factors are barriers to Ms. Reid’s employment capacity. He commented, at page 27: The Commission’s finding that the worker has a work capacity to work is accompanied by the finding she has barriers to employment.

These have been expressed as psychosocial, i.e. a perceived disability, fear of re-injury and having a pain focus. … In addition, at page 28, the Chief Review Commissioner noted that the occupational rehabilitation consultant recommended sedentary, as opposed to light work because this change … was seen as finding the worker capable of jobs with a lower physical demand than would be identified if the light tolerance level, as found in the [functional evaluation] was accepted. In other words, in the circumstances, sedentary work would serve to maximize Ms.

Reid’s work tolerance and minimize aggravation of her symptoms and chronic pain. [ 20 ] In finding that the Chief Review Commissioner’s reliance on psychosocial factors was unreasonable, the applications judge relied on her “plain reading of the Consultant’s report”. However, it is clear from a review of the Chief Review Commissioner’s decision that he was relying on information in addition to one report. The applications judge erred by substituting her view for that of the Chief Review Commissioner. [ 21 ] In any event, what is essential to the decision is the conclusion that Ms.

Reid’s work capacity would be assessed at the sedentary level. The basis for that determination would be relevant only if it was made on erroneous grounds that would undermine the validity of the determination. That was not the case here. There was evidence that Ms.

Reid’s ability to return to work was affected by psychosocial factors described as “a perceived disability, fear of re-injury and having a pain focus” (paragraph 19, above). [ 22 ] The applications judge also referred to the Chief Review Commissioner’s failure to identify three options as required for purposes of the work re-entry assessment and Policy RE-14. However, Policy RE-15 provides an exemption from this requirement where factors other than the compensable injury prevent the worker from participating in a feasible labour market re-entry plan.

On this point, the Chief Review Commissioner concluded, at page 28: At this point I find it necessary to explore whether the Commission’s determination that the barriers as identified can reasonably be seen as “… factors other than the compensable injury ”, are ( sic ) preventing this worker from participating in a feasible [work re-entry] plan. The worker was injured and diagnosed with a soft tissue injury to her chest wall and left shoulder/neck area. The medical evidence shows she has recovered from these physical injuries. Dr. Furey stated in February 2009: With respect to your specific questions:

(1) The exact diagnosis, I believe, is a soft tissue injury which has gone on to have a chronic nature.

(2) With respect to further investigations, I don’t think she’d benefit from any.

(3) There is no objective evidence of this lady’s complete inability to work. She should be able to perform some activities.

(4) There is no contraindication and, in fact, I believe it would probably be in this patient’s best interest to undergo a [functional

evaluation]. This conclusion supports earlier conclusions of the EMPOWER program that the worker has recovered, but with some physical limitations. Based upon this evidence, I find the Commission is correct in determining the psychosocial barriers can be reasonably seen as “… factors other than the compensable injury ” and, as a consequence, properly applied this provision of Policy RE-15. [ 23 ] It was within the Chief Review Commissioner’s authority and expertise to determine that the psychosocial factors, which inhibited Ms.

Reid from attaining a higher level of recuperation from her injury, should be considered when assessing whether the exemption in Policy RE-15 applies. Related to this is the issue of Ms. Reid’s chronic pain. [ 24 ] The Chief Review Commissioner referred to two reports in which Ms. Reid was assessed with respect to her fear of re-injury and perceived disability. Her scores indicated that she was in the high and very high range with a resulting risk that she would be chronically disabled.

The Chief Review Commissioner concluded, at page 29: The [functional evaluation] considered these and all previous assessment and medical reports. The result of this comprehensive evaluation, where her reports of pain were referenced, plus the past assessments, plus the examination resulting from the [functional evaluation] itself, the worker has been found to have an eight-hour workday tolerance with restrictions. There was also the report from Dr. Furey in February 2009, who states in part, “ With respect to further investigation, I don’t think she’d benefit from any ”.

From this, I find the Commission’s activity shows the worker’s pain has been considered in this matter. In

summary, the record shows the Commission had this worker assessed for functional capacity by multiple assessors in several settings. There have been several medical opinions confirming the worker’s ability to work supported by objective diagnostic tests. The combination of all these findings, with the exception of the worker’s family physician, indicates the worker has a workday tolerance. I find the Commission’s conclusion based on these findings to be reasonable.

Additionally, the Commission’s [work re-entry] finding has taken reasonably into account the worker’s functional capacity and reached a reasonable determination. [ 25 ] Ms. Reid submits that a critical error by the Chief Review Commissioner was his failure to rely more heavily on the report of her family physician, Dr. Keeping. Dealing with this issue, at page 24 of the decision, the Chief Review Commissioner considered comments made by counsel for the Commission: Dr.

Keeping’s letter of April 2009 commenting on the worker’s work tolerance does not reference the results of the [work re-entry assessment] and that the worker was assigned to the sedentary category. This mainly references the worker’s subjective symptoms and indicated these are preventing the worker from returning to work. Dr.

Keeping’s comments must, therefore, be used carefully as they are not based on the complete picture of the worker’s assessed work tolerances. [ 26 ] The Chief Review Commissioner concluded, at page 27: I find the Commission’s determination to find the other opinions indicating the worker has a work capacity as demonstrated in the many assessments to outweigh that of the family physician as reasonable. I note [counsel for Ms. Reid] submitted the family physician’s opinion should be given additional weight as found by the Supreme Court [Trial Division] in the Bulger decision.

The Commission countered this with the point this decision concerned the subject of [the permanent functional impairment rating] and, consequently, is not applicable here. I accept on this basis, the Commission’s view as it applies to the matter under review here. [ 27 ] The applications judge commented on that paragraph as follows: [93] Therefore, in my view, the Chief Review Commissioner did not clearly deal with the difference in opinion between the [Commission’s] Consultant and Dr. Keeping.

The conflict in opinion is a significant issue in this complex case, and the Chief Review Commissioner should have fully dealt with it. Instead, he dealt with the issue in a cursory manner. He dismissed Dr. Keeping’s opinion on the basis of it lacking objective evidence, without explaining how he concluded that the opinion lacked objective evidence. … [ 28 ] In Bulger v.

Workplace Health, Safety and Compensation Commission , 2006 NLTD 50 , 256 Nfld. & P.E.I.R. 11, conflicting medical reports were under consideration: [54] The difficulty arises because the Review Division saw the case resting on its acceptance of one medical report over another. In my view, when a physician who has treated an individual for many years, submits a report saying there has been a deterioration in his patient’s condition, it must be considered very seriously.

I do not believe the Review Division gave it the weight it deserved. [ 29 ] It is unnecessary for purposes of this appeal to comment on the above proposition particularly insofar as it is alleged to have broad application. I note that the decision pre-dates both the Dunsmuir and Nurses’ Union decisions. [ 30 ] In this case, the Chief Review Commissioner distinguished the Bulger case on the basis that the two cases dealt with different issues; this case with the functional evaluation and work re-entry assessment and Bulger with the permanent functional impairment rating.

From a legal perspective, this distinction is not helpful since, as noted above, the use of and weight to be given to medical reports will depend on the particular circumstances. However, even if the Chief Review Commissioner erred with respect to the manner in which he distinguished the Bulger decision, it is clear from his decision that he considered all the evidence, including that of the family physician.

It cannot be said that his reference to the Bulger decision had the effect of taking his decision in this case outside the range of acceptable outcomes. [ 31 ] The applications judge focused on a number of points which she referred to as instances where the Chief Review Commissioner was not “alive” to the issue. This resulted in the judge dealing piecemeal with the decision, contrary to the approach outlined in the Dunsmuir and Nurses’ Union decisions.

For example, the judge concluded: [103] To summarize, the Chief Review Commissioner accepted the Commission’s position on Bulger , without being “alive” to the prospect of the general application of the Bulger principles. As a result, the Chief Review Commissioner’s decision to accept that Dr.

Keeping’s opinions were easily outweighed, is not a justified decision, and it is unreasonable. … [ 32 ] As noted above, the Chief Review Commissioner referred to evidence supporting the conclusion that Ms. Reid’s work capacity was an eight-hour day at sedentary work. Nowhere does the Chief Review Commissioner’s decision suggest that Dr. Keeping’s opinions were “easily outweighed”. Rather, he used the whole of the evidence, giving Dr.

Keeping’s opinion what he determined to be appropriate weight. [ 33 ] By way of another example, the applications judge stated: [104] … Further, the Chief Review Commissioner did not justify his conclusion that [Ms. Reid] had recovered from her injuries. A plain reading of Dr. Furey’s report does not justify this conclusion, nor do the reasons of the Chief Review Commissioner in respect of that report. Rather, the Chief Review Commissioner appears to ignore the medical opinion regarding the chronic nature of Ms. Reid’s injuries.

As a result, the Chief Review Commissioner’s finding that the [work re-entry] process was correctly engaged, is an unreasonable finding. The Chief Review Commissioner was not “alive” to the prospect of factors other than, or in addition to, psychosocial factors, affecting Ms. Reid’s workday tolerance. [ 34 ] This misconstrues the Chief Review Commissioner’s decision. Clearly, he recognized Ms.

Reid’s chronic pain issue when he accepted that work at the light strenuousness level was not an appropriate standard, but that her capacity should be determined based on sedentary work. [ 35 ] In conclusion, the Chief Review Commissioner reviewed the relevant information and supported his determinations with reasons.

SUMMARY AND DISPOSITION [ 36 ] In

summary, the applications judge erred by failing to apply the principles set out in the Dunsmuir and Nurses’ Union decisions. A review of the Chief Review Commissioner’s decision leads to the conclusion that the result, supported by the reasons, falls within the range of acceptable outcomes. [ 37 ] Accordingly, I would allow the appeal, set aside the decision of the applications judge, and affirm the decision of the Chief Review Commissioner. I would order that the parties bear their own costs. ____________________________________ B. G. Welsh J.A. I Concur: __________________________________ J. D. Green C.J.N.L. I Concur: __________________________________ L. R. Hoegg J.A.