DANIEL O'ROURKE Applicant And: WORKPLACE HEALTH, SAFETY v. COMPENSATION COMMISSION, 2019 NLSC 86

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : O'Rourke v. Workplace Health, Safety and Compensation Commission , 2019 NLSC 86 Date : April 18, 2019 Docket : 201101G4264 Between: DANIEL O'ROURKE Applicant And: WORKPLACE HEALTH, SAFETY AND COMPENSATION COMMISSION First Respondent And: WORKPLACE HEALTH, SAFETY & COMPENSATION REVIEW DIVISION Second Respondent Before: Justice Robert P.

Stack On Judicial Review From: A Decision of Workplace Health, Safety & Compensation Review Division, File # 101053-06, decision number 10180, dated October 29, 2010, and a reconsideration thereof dated February 21, 2011. Place of Hearing: St. John’s, Newfoundland and Labrador Date(

s) of Hearing: March 4, 2019

Summary: The Applicant, Daniel O’Rourke, injured his lower back while lifting furniture in the course of his employment as head housekeeper at a motel. He applied for benefits from WorkplaceNL, who accepted his claim. Subsequently, WorkplaceNL found that Mr. O’Rourke was

capable of an eight-hour workday tolerance at the sedentary level and a six-hour workday tolerance at the light-to-medium level. Thedecision of WorkplaceNL was upheld by the Workplace Health, Safety & Compensation Review Division in the first instance by ChiefReview Commissioner Bruce Peckford and then, following a request for reconsideration, by Review Commissioner Keith Barry. On an application for judicial review, the Court found that the decision by Mr. Peckford as supplemented by the decision by Mr. Barrywas reasonable. The decision by Mr.

Peckford demonstrates justification, transparency, and intelligibility within the decision-makingprocess and falls within a range of possible, acceptable outcomes, which are defensible in respect of the facts and law. Appearances: Donald K. Powell Appearing on behalf of the Applicant Rebecca C. Phillipps Appearing on behalf of the First Respondent Stephen J. Willar Appearing on behalf of the Second Respondent Authorities Cited: CASES CONSIDERED: Clarke v. Newfoundland (Workers’ Compensation Commission) (1998), (NL SC), 169Nfld. & P.E.I.R. 118, 521 A.P.R. 118 (Nfld. S.C.(T.D.)); Iron Ore Co. of Canada v.

Newfoundland & Labrador (Workplace Health,Safety & Compensation Review Division), 2011 NLTD(G) 103; Allen v. Newfoundland and Labrador (Workplace Health, Safety &Compensation Review Division, 2014 NLTD(G) 20, aff’d 2014 NLCA 42; Pasiechnyk v. Saskatchewan (Workers’ CompensationBoard), (SCC), [1997] 2 S.C.R. 890; DGH Construction Ltd. v. Newfoundland (Workers’ Compensation Commission)(1997), (NL SC), 150 Nfld. & P.E.I.R. 50, 470 A.P.R. 50 (Nfld. S.C.(T.D.); Newfoundland (Workers’ CompensationCommission) v. Breen (1997), (NL CA), 149 Nfld. & P.E.I.R. 335, 467 A.P.R. 335 (Nfld.

C.A.); Newfoundland andLabrador (Workplace Health, Safety and Compensation Commission) v. Reid, 2015 NLCA 40; Dunsmuir v. New Brunswick, 2008 SCC9; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62; Newfoundland(Workers’ Compensation Commission) v. Jesso, 2001 NFCA 49; Fitzpatrick v. Newfoundland (Workers' Compensation Review Division)(2001), (NL SC), 207 Nfld. & P.E.I.R. 272, 620 A.P.R. 272 (N.L. S.C.(T.D.)); Power v.

Newfoundland & Labrador(Workplace Health, Safety & Compensation Review Division), 2012 NLTD(G) 4; Newfoundland & Labrador (Workplace Health, Safety& Compensation Commission) v. Mason, 2003 NLSCTD 41; Weir’s Construction Limited v. Warford (Estate), 2018 NLCA 5. STATUTES CONSIDERED: Workplace Health, Safety and Compensation Act, RSNL 1990, c. W-11. REASONS FOR JUDGMENT Stack, J.: INTRODUCTION [1] On September 1, 2006, the Applicant, Daniel O’Rourke, injured his lower back while lifting furniture in the course of hisemployment as head housekeeper at a motel.

He applied for benefits from the First Respondent, the Workplace Health, Safety andCompensation Commission (“WorkplaceNL”), who accepted his claim on September 27, 2006. [2] Following a course of medical and occupational consultations, investigations and decisions, Mr. O’Rourke was subject to a17-page decision dated May 26, 2010, whereby WorkplaceNL confirmed that Mr. O’Rourke was capable of working “Other Sales andRelated Occupations” for six hours per day with accommodations. [3] That decision of WorkplaceNL was reviewed by Chief Review Commissioner Bruce Peckford (“Mr.

Peckford”) who upheldthe WorkplaceNL decision in October of 2010 (the “Peckford Decision”). The Peckford Decision was subject to reconsideration byanother Review Commissioner, Keith Barry (“Mr. Barry”). Mr. Barry upheld the Peckford Decision (the “Barry Decision”).

[ 4 ] The Applicant has applied for judicial review of the Peckford Decision and requests that the Court order it set aside, overturned or quashed and sent back to WorkplaceNL for redetermination. Mr. O’Rourke’s principal complaint is that Workplace NL did not properly weigh the medical and other evidence relating to his injury. facts [ 5 ] The facts were much discussed by counsel for the Applicant and for the First Respondent. Neither party suggested that this review amounts to an appeal de novo , but both wished to demonstrate how the record was reflected and considered by WorkplaceNL and the Peckford Decision.

For that reason, I will give a more complete presentation of the facts than would be, in my view, strictly speaking necessary in order to decide this matter. [ 6 ] As a result of ongoing symptoms, Mr. O’Rourke was referred to Dr. Gerald Murray, neurosurgeon, who diagnosed Mr. O’Rourke with a pre-existing disc degeneration. Thereafter, Mr. O’Rourke saw Dr. Murray again in December 2006, following which Dr. Murray noted that Mr. O’Rourke’s pain was vaguer and that he would not do well with surgery. Dr. Murray recommended chiropractic treatment. Mr. O’Rourke was seen by Dr.

Murray again on March 29, 2007, at which time a further CT scan was ordered. Dr. Murray indicated in a June 11, 2007, report that the scan showed disc bulging and nerve compression at the L5-S1 level and that surgery should be considered. [ 7 ] On July 19, 2007, Dr. Murray reported to Dr. Noble, Mr. O’Rourke’s family physician, that he was of the view that Mr. O’Rourke would not do well with surgery. Mr. O’Rourke’s subjective complaints were more diffuse, and Dr. Murray was unable to explain Mr. O’Rourke’s complaints of swelling in his left foot. Dr.

Murray stated in his report, “He has an extremely pronounced limp which I think is all part of a magnified pain response and I don’t think surgery will help. He also has a significantly degenerated disc at L5-S1 and undoubtedly will be left with pain after surgery.” [ 8 ] Mr. O’Rourke underwent an Empower assessment which recommended that he wean from chiropractic treatment and commence clinic-based occupational rehabilitation with the goal of improving tolerances, improving muscle strength, and the commencement of modified work duties. Mr.

O’Rourke was discharged from the program without having progressed in tolerances. [ 9 ] Mr. O’Rourke was then seen by anesthesiologist, Dr. Kamra, who planned to treat his back pain with epidural steroid injections. This treatment was provided three times without significant improvement. [ 10 ] A Functional Capacity Evaluation (“FCE”) of Mr. O’Rourke was completed on April 15, 2008. In a 21-page report, Mr. O’Rourke was noted to have the capacity to work four hours daily at the sedentary level. [ 11 ] Mr. O’Rourke saw Dr. Murray on February 23, 2009, who confirmed that he was not a candidate for surgery.

He felt that Mr. O’Rourke had developed chronic pain. [ 12 ] A 16-page update of the FCE dated May 12, 2009, found that Mr. O’Rourke was capable of an eight-hour workday tolerance at the sedentary level and a six-hour workday tolerance at the light-to-medium level. [ 13 ] Mr. O’Rourke’s case manager arranged for a Labour Market Re-entry assessment (“LMR”) to take place as his pre-injury employer was unable to accommodate him. The assessment found that there were several options for Mr. O’Rourke as a result of his skills and abilities. Mr.

O’Rourke declined to exercise his right to choose one of the options provided in the assessment. [ 14 ] In his report of July 7, 2009, Dr. Noble deferred to the findings of the occupational therapist in the FCE. The most recent report from Dr. Noble, dated March 24, 2010, stated that Mr. O’Rourke “cannot do manual labour.” [ 15 ] In a decision dated March 24, 2010, the WorkplaceNL case manager concluded that based on the weight of evidence in the file, Mr. O’Rourke was able to work at the light-to-medium level of strenuousness for six hours per day.

The case manager selected NOC (National Occupational Code) Minor Group 662 for Mr. O’Rourke as he met the educational requirements through his post-secondary program in Hotel Restaurant Management and had experience in dealing with customers in his past work history. The case manager determined that Mr. O’Rourke was entitled to Extended Earnings Loss (“EEL”) benefits as the selected option would not fully replace his pre-injury income. In accordance with the legislation, Mr.

O’Rourke was found to be in a wage loss situation and was entitled to the difference in his pre-injury weekly net earnings and the amount of wages determined from information from Human Resources and Skills Development Canada (“HRSDC”) for NOC Minor Group 662. [ 16 ] As stated above, Dr. Murray examined Mr. O’Rourke on several occasions after the injury. In his report of April 14, 2010, Dr. Murray stated: Again, I don’t think that there is any surgical procedure I can do to help this gentleman.

The amount of pain that he displayed during the examination, I think, would make it very difficult for him to get back to work at anything and I am very surprised that, based on the work assessment, the occupational therapist said he could work six hours a day. I think that the only thing to offer this gentleman really is a referral to the Chronic Pain Management Centre at the Miller Centre and his Case Manager can look into getting that approved for him. [ 17 ] In the meantime, Mr. O’Rourke’s representative, Judy Vanta, requested a review of the case manager’s decision.

An internal review specialist considered the subjective reports of pain by Mr. O’Rourke as well as all of the medical evidence on the file and upheld the case manager’s decision. In her decision of May 26, 2010, she determined that the occupational therapist considered the worker’s subjective reports of pain in addition to the objective findings in the testing. She stated in her decision: However, in weighing the evidence I find that in reviewing the functional assessment completed, your pain levels were taken into consideration in the determination of your ability to work and earn.

Your recent subjective report of a worsening in your condition is not supported by objective findings on diagnostic examination. [ 18 ] The final decision of WorkplaceNL was confirmed in the Peckford Decision and again in the Barry Decision.

[19] Mr. O’Rourke then made this application for judicial review. issues [20] The issues are: (

a) What is the decision under review? (

b) What is the applicable standard of review to be applied to a decision of the Review Division? (

c) Is the Peckford Decision upholding the WorkplaceNL’s decision that Mr. O’Rourke was capable of working at six hours atthe light-to-medium level with partial EEL entitlement, reasonable? what is the decision under review? [21] Here, the Review Division rendered two decisions: the Peckford Decision and the Barry Decision. Are both under review or, ifjust one, which one? [22] Introduced in 1998,

section 28.1 of the Workplace Health, Safety and Compensation Act, RSNL 1990, c. W-11 (the “Act”)codifies the reconsideration power which the Court had previously accepted as implicit in

Part II of the Act (see Clarke v. Newfoundland(Workers’ Compensation Commission) (1998), (NL SC), 169 Nfld. & P.E.I.R. 118, 521 A.P.R. 118 (Nfld. S.C.(T.D.)) at paragraph 29).[1] [23] The determination of which decision is under review may be moot. This is because, if the original decision does not meet thereasonableness standard and the reconsideration decision upholds the original decision, then the reconsideration decision would bestruck down along with the original decision. That situation was contemplated by Green, C.J.T.D. (as he then was), in obiter dicta inIron Ore Co. of Canada v.

Newfoundland & Labrador (Workplace Health, Safety & Compensation Review Division), 2011 NLTD(G)103, at paragraph 1, footnote 1. He observed that: In fact, the decision of the Review Division under attack on this application was subsequently reviewed by the Chief ReviewCommissioner on an application for reconsideration by IOC pursuant to s. 28.1 of the Workplace Health Safety and Compensation Act. The decision on reconsideration was that the original decision of the Review Division should not be disturbed. IOC has not soughtjudicial review of the reconsideration decision.

No party argued that the decision denying reconsideration should be judiciallyreviewed and set aside as a prelude to judicial review of the original Review Division decision. I have approached the matter,therefore, on the basis that if there are grounds for setting aside the original Review Division decision, then the decision denyingreconsideration falls with it. [Emphasis added.] [24] Because the reconsideration by Mr. Barry upheld the decision by Mr. Peckford, like Green, C.J.T.D., I am prepared to focusmy review on the Peckford Decision.

Nevertheless, it may be necessary to comment on the Barry Decision insofar as it may supplementor “redress” something at issue in this application (see Allen v.

Newfoundland and Labrador (Workplace Health, Safety & CompensationReview Division, 2014 NLTD(G) 20, at paragraph 22; upheld by the Court of Appeal without addressing this issue in Allen v.Newfoundland and Labrador (Workplace Health, Safety & Compensation Review Division), 2014 NLCA 42). [25] Let us now look at the legislative context within which the Peckford Decision was delivered. the Legislative context WorkplaceNL [26] Workers’ compensation is a system of compulsory no-fault mutual insurance administered by the Crown.

Premised on an“historic trade-off”, employers contribute to a mandatory insurance scheme in exchange for immunity from civil suit and workers receiveno-fault compensation benefits in exchange for relinquishing their right to take civil action. The injury fund is administered byWorkplaceNL, an independent board (see Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), (SCC),[1997] 2 S.C.R. 890 at paragraphs 23-38). [27] The efficient administration of claims is reliant upon the authority of WorkplaceNL as the decision-maker of first instance. Asset out in

section 19, it has the exclusive jurisdiction to examine, hear, and determine matters or questions arising under the Act. I haveset out below the parts of section 19(1) that may have application in this case: 19.

(1) The commission has exclusive jurisdiction to examine, hear and determine matters and questions arising under their Act and amatter or thing in respect of which a power, authority or distinction is conferred upon the commission, and the commission has exclusivejurisdiction to determine (

a) whether an injury has arisen out of and in the course of an employment within the scope of this Act; (

b) the existence and degree of impairment because of an injury; (

c) the permanence of impairment because of an injury;

(

d) the degree of diminution of earning capacity because of an injury; (

e) the amount of average earnings; … (

l) whether a worker is co-operating in reaching medical recovery, in returning to work and in all aspects of the labour market re-entry assessment and plan provided to the worker; (m)whether an employer has fulfilled the obligation to return a worker to work or re-employ a worker; and (

n) whether a labour market re-entry plan shall be prepared for a worker. [28] Decisions of WorkplaceNL are protected by a broad privative clause contained in section 19(2): 19.

(2) Subject to

Part II, an action or decision of the commission is final and conclusive and is not open to question or review in a courtof law and proceedings by or before the commission shall not be restrained by injunction, prohibition or other process or proceedings in acourt of law or be removable by certiorari or otherwise into a court of law. [29] WorkplaceNL’s Board of Directors establishes policies and programs which are consistent with the Act and regulations. Policies established by WorkplaceNL’s Board of Directors pursuant to subsection 5(1) of the Act have a “rule-based character” and arebinding on WorkplaceNL’s decision-makers and on Review Commissioners pursuant to

section 26.1 of the Act (See DGH ConstructionLtd. v. Newfoundland (Workers’ Compensation Commission) (1997), (NL SC), 150 Nfld. & P.E.I.R. 50, 470 A.P.R.50 (Nfld. S.C.(T.D.)) at paragraph 6). [30] The Act compensates workers in respect of the injuries that arise out of and in the course of employment. WorkplaceNL isempowered by the Act to assess the effect of the injury on a worker. The effect of the injury on the worker’s loss of earning capacity isestimated, and the worker is compensated based on the estimated loss. [31] Section 60(1) of the Act sets the standard of proof for decisions of WorkplaceNL relating to a worker’s compensation: 60.

(1) An issue related to a worker's entitlement to compensation shall be decided on a balance of probabilities and, where the evidenceon each side of an issue is equally balanced, the issue shall be decided in favour of the worker. [32] Policy EN-20: Weighing Evidence provides guidance on how evidence is to be weighed. It states in relevant part: … 2. When addressing conflicting medical evidence, decision makers will not automatically prefer the medical evidence of one category ofphysicians or practitioners over that of another.

Decision makers shall consider the following criteria in deciding what weight to give tosuch evidence: a. the expertise of the individual providing the opinion; b. the correctness of the facts relied upon by the provider of the opinion; c. any issues of bias or objectivity with the opinion; d. subjective versus objective medical evidence; and e. the findings of any relevant scientific studies referenced by a qualified medical practitioner. … [33] A worker who is not able to return to work with his or her pre-injury employer is subject to Policy RE-14: Labour Market Re-Entry Assessments.

Suitable work options for the injured worker are then explored and decided upon in accordance with Policy RE-15:Determining Suitable Employment. [34] The courts have recognized the specialized expertise of workers’ compensation boards as the primary investigative andadjudicative bodies of first instance and as administrators of the workers’ compensation systems.

For example, Sopinka J., writing forthe Supreme Court of Canada in Pasiechnyk, described, at paragraph 38, the specialized nature of workers’ compensation boards asfollows: The composition, tenure, and powers of the Board demonstrates that it has very considerable expertise in dealing with all aspects of theworkers' compensation system. Not only does the Board have day-to-day expertise in handling claims for compensation, in settingassessment rates and promoting workplace safety; but it also has expertise in ensuring that the purposes of the Act are not defeated. …

[35] It is within this statutory context that the Peckford Decision was rendered. The Review Division [36] The Review Division of WorkplaceNL is an independent external review body established pursuant to

Part II of the Act and ischarged with reviewing certain decisions of WorkplaceNL to determine if these decisions were made in accordance with the Act andregulations, and the policies established by WorkplaceNL’s Board of Directors. [37] The jurisdiction of the Review Division and its review commissioners is set out in subsection 26(1) of the Act. Newfoundland(Workers’ Compensation Commission) v.

Breen (1997), (NL CA), 149 Nfld. & P.E.I.R. 335, 467 A.P.R. 335 (Nfld.C.A.) at paragraph 42, held that a Review Commissioner “is limited by s-s. 26(1) to reviewing a decision of the Commission todetermine if the Commission acted in accordance with the Act, regulations and policy.” The Court of Appeal confirmed that the role of aReview Commissioner is one of review, not of appeal. [38] As well, by subsection 26(2) of the Act, a decision of a Review Commissioner is protected by a broad privative clause: An order or decision of a review commissioner is final and conclusive and is not open to question or review in a court of law andproceedings by or before a review commissioner shall not be restrained by injunction, prohibition or other process or proceedings in acourt of law or be removable by certiorari or otherwise in a court of law. [39] If the Review Commissioner finds the decision of WorkplaceNL not to be in accordance with the Act, regulations andapplicable policies, the Review Commissioner may remit the decision back to WorkplaceNL for further investigation, analysis and aproper disposition.

There may be cases when it is appropriate for the Review Commissioner to exercise a remedial jurisdiction bymaking an appropriate disposition which must be compliant with the Act, regulations and applicable policies.

However, if the decisionof WorkplaceNL was made in accordance with the Act, regulations and policies, a Review Commissioner cannot substitute their ownopinion for that of WorkplaceNL and must uphold the decision of WorkplaceNL (see Breen, at paragraph 39). standard of review [40] Both WorkplaceNL and the Review Division have specialized expertise in interpreting and applying the Act in the context of aclaim for compensation following a workplace injury. A decision of a Review Commissioner is entitled to significant deference uponjudicial review.

Therefore, unless an error of jurisdiction is shown, the review standard of reasonableness applies to the decision of theReview Division. For example, see Newfoundland and Labrador (Workplace Health, Safety and Compensation Commission) v. Reid,2015 NLCA 40, at paragraph 7: 7 The parties agreed and the applications judge accepted that the Chief Review Commissioner’s decision should be reviewed on astandard of reasonableness. Counsel took the same position on appeal. I agree. The appropriate standard of review has, in fact, beendetermined by this Court in previous decisions Mount Pearl (City) v.

Newfoundland & Labrador (Workplace Health, Safety &Compensation Review Division), 2008 NLCA 69, 282 Nfld. & P.E.I.R. 14 (N.L. C.A.), 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. [41] In Dunsmuir v.

New Brunswick, 2008 SCC 9, at paragraph 47, the Court emphasized that the principle animating thereasonableness standard is one of deference: Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards ofreasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead they may give rise a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range ofacceptable and rational solutions.

A court conducting a review for reasonableness inquires into the qualities that make a decisionreasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concernedmostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concernedwith whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts andlaw. [Emphasis added.] [42] In Newfoundland and Labrador Nurses’ Union v.

Newfoundland and Labrador (Treasury Board), 2011 SCC 62, at paragraph12, the Court stated the following; [12] It is important to emphasize the Court’s endorsement of Professor Dyzenhaus’s observation that the notion of deference toadministrative tribunal decision-making requires “a respectful attention to the reasons offered or which could be offered in support of adecision” … “Reasonable” means here that the reasons do in fact or in principle support the conclusion reached.

That is, even if the reasons in factgiven 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 ifits reasons are in some respects defective. …

[Underlining in original deleted; citation omitted.] [43] The standard of review for this Court reviewing a decision of the Review Decision is reasonableness. What, then, is thestandard of review to be applied by the Review Division to a decision of WorkplaceNL? The answer is that the Review Division reviewsthe Commission’s decisions on a standard of correctness. The basis of the review is error, which is to say whether the Commission’sdecisions are “in accordance with” the Act, regulations, and policies. In Newfoundland (Workers’ Compensation Commission) v.

Jesso,2001 NFCA 49, at paragraph 22, the Newfoundland Court of Appeal confirmed the jurisdiction of the Review Division as set out inBreen and added the following: 22 In

summary, the current scheme, established by the Act, makes it the role of the Review Division to ensure that the Commissionproperly applies the Act, regulations and policy.

There is no privative clause operative respecting the Review Division’s review of thedecisions of the Commission, nor are there other indices that the standard of review should be other than correctness. … Common sensesuggests that the whole raison d’etre of the Review Division is to act as a watchdog over the Commission in respect of those matterslisted in s. 26(1). … [44] The correctness standard articulated in Jesso has been consistently applied by this Court: see Fitzpatrick v. Newfoundland(Workers' Compensation Review Division) (2001), (NL SC), 207 Nfld. & P.E.I.R. 272, 620 A.P.R. 272 (N.L.

S.C.(T.D.)), per Handrigan, J.; Power v. Newfoundland & Labrador (Workplace Health, Safety & Compensation Review Division), 2012NLTD(G) 4, per LeBlanc, J.; and Newfoundland & Labrador (Workplace Health, Safety & Compensation Commission) v. Mason, 2003NLSCTD 41, per Goulding, J. [45] Thus, in making my review, I must determine whether the Peckford Decision was reasonable when it found the decision ofWorkplaceNL to be correct, in the sense of having been made in accordance with the Act, regulations, and policies.

To that end, I am todetermine whether the Peckford Decision demonstrates justification, transparency and intelligibility within the decision-making process.Furthermore, I am to supplement Mr. Peckford’s reasons before I seek to subvert them. Finally, I am not to substitute what I maydetermine to be the appropriate result if the decision falls within a range of possible, acceptable outcomes, which are defensible inrespect of the facts and law. analysis Was the Peckford Decision reasonable? [46] Following an oral hearing of the matter at which Mr. O’Rourke was represented, Mr.

Peckford rendered his decision onOctober 29, 2010. In his written reasons, Mr. Peckford summarized the medical and other evidence, addressed the submission of Mr.O’Rourke’s representative, and considered the determination of the internal review specialist. Mr. Peckford concluded that the decisionof WorkplaceNL was made in accordance with the Act, in particular sections 19, 60, and 74, and Policies RE-14: Labour Market Re-Entry Assessment and RE-15: Determining Suitable Earnings and Employment.

He found no error in the decision and specifically notedthe evidence on the claim file before finding that the evidence of the occupational therapist should be given more weight than that of Dr.Murray. [47] Mr. Peckford considered that the FCE provided objective evidence of Mr. O’Rourke’s capacity to work and the conclusionreached by WorkplaceNL in the process of making the determination of Mr. O’Rourke’s abilities and entitlement to benefits. He wassatisfied that the weight of evidence supported the conclusion reached by WorkplaceNL. [48] In his decision, Mr.

Peckford considered whether WorkplaceNL acted correctly when it found that Mr. O’Rourke was capableof working at the level of six hours per day in the light-to-medium level of strenuousness. This determination required an assessmentand weighing of the evidence available on the record as well as an

interpretation of the Act and its application to Mr. O’Rourke’s case. [49] Mr. O’Rourke maintains that he is unable to work in any capacity as a result of severe pain. He points to disagreement with theFCE and its findings as grounds for his position that he is unable to work. He relies heavily on the opinion of Dr. Murray that it would bedifficult to get back to work at anything. [50] Nevertheless, I am satisfied that the Peckford Decision is reasonable. The 454 pages of medical evidence on Mr.

O’Rourke’sclaim file with WorkplaceNL supports the conclusion that he was somewhat capable of working and earning a living. In itsdetermination of entitlement, WorkplaceNL considered the evidence from all sources, including the extensive examinations by varioushealth care professionals: his family physician, Dr. Noble; neurosurgeon, Dr. Murray; anesthesiologist, Dr. Kamra; a chiropractor; amassage therapist; an occupational therapist; and a physiotherapist. In addition, Mr.

O’Rourke was assessed by the Empowermultidisciplinary team which included a physician, occupational therapist, physiotherapist, and chiropractor. [51] The FCE dated May 12, 2009, indicated a six-hour workday tolerance at the light-to-medium level (eight hours at the sedentarylevel). The assessment indicated that Mr. O’Rourke was able to perform at that level of strenuousness with the requirement that theworkplace would provide the opportunity to change postures from sitting to standing. There were also restrictions on low-level work.

The FCE was completed by an occupational therapist whose specialized expertise is in the area of determining the capacity to work. [52] In the FCE assessment of Mr. O’Rourke’s tolerances, the occupational therapist considered associated pain reports andbehaviours demonstrated by Mr. O’Rourke in order to obtain an accurate and representative result of his work capacity. Furthermore,although it was noted that there was an increase in pain levels towards the end of the functional testing, Mr. O’Rourke did not call toreport pain following rest subsequent to the assessment as he was advised to do. Mr.

O’Rourke’s perceived tolerances were also

inconsistent with the behavioral presentation. The occupational therapist concluded that Mr. O’Rourke perceived himself to be able to do less than he actually demonstrated. [ 53 ] Following receipt of the FCE, Dr. Noble indicated that Mr. O’Rourke is only incapable of performing manual labour. This opinion is consistent with the findings of the FCE. [ 54 ] As we have seen, Dr. Murray advised that surgery was not recommended. He felt that as a result of the amount of pain Mr. O’Rourke displayed in the examination, it would be difficult for Mr. O’Rourke to return to work. Dr.

Murray expressed surprise that the assessment found he could work six hours per day. Dr. Murray does not indicate that he reviewed the FCE, or that he was aware of the level of tolerance Mr. O’Rourke was found to be capable of working, or the type of work he had been found capable of performing. [ 55 ] On a balance of probabilities, the weight of the evidence did not favour the position taken by Mr. O’Rourke; nor was the evidence on each side of the issue equally balanced. Consequently, the “tie to the worker” principle enacted in section 60(1) of the Act was not invoked.

This assumes, of course, that in weighing the evidence, WorkplaceNL correctly applied Policy EN-20, which I will discuss next. Policy EN-20 [ 56 ] The real issue before me is whether WorkplaceNL in the first instance contravened Policy EN-20: Weighing Evidence. Contravention of that policy by WorkplaceNL would be a reversible error and a finding to the contrary by Mr.

Peckford would not be reasonable and would result in the Peckford Decision being quashed. [ 57 ] As we saw above, Policy EN-20 requires Workplace NL, when addressing conflicting medical evidence, not to automatically prefer the medical evidence of one category of physicians or practitioners over that of another.

The weight given to medical evidence shall be determined based upon the following criteria: a. the expertise of the individual providing the opinion, b. the correctness of the facts relied upon by the provider of the opinion, c. any issues of bias or objectivity with the opinion, d. subjective versus objective medical evidence, and e. the findings of any relevant scientific studies referenced by a qualified medical practitioner. [ 58 ] Here, WorkplaceNL and Mr. Peckford were faced with conflicting medical evidence. Mr. O’Rourke’s family physician, Dr. Noble, concluded that Mr.

O’Rourke was not capable of performing manual labour only. This is consistent with the opinion of the occupational therapists who concluded in the FCE that Mr. O’Rourke could perform certain sedentary or light-to-medium level tasks for a certain number of hours each day provided proper accommodations were provided. The neurosurgeon, Dr. Murray, on the other hand, expressed surprise at the findings of the occupational therapists and concluded that the amount of pain displayed by Mr.

O’Rourke during the examination would make it very difficult for him to get back to work at anything. [ 59 ] The record confirms that WorkplaceNL considered all of the evidence before it and gave the FCE, supported by Dr. Noble, more weight than the opinion of Dr. Murray. There is nothing in the record to suggest that they did so “automatically”. In fact, the depth of analysis conducted by WorkplaceNL demonstrates the opposite. [ 60 ] As we saw above, Mr.

Peckford considered the record, including the medical and other account evidence, and found that the decision of WorkplaceNL was made in accordance with the Act , regulations and policy. He found no error in the decision and specifically noted the evidence on the claim file. [ 61 ] Mr. Peckford considered that the FCE provided objective evidence of Mr. O’Rourke’s capacity to work and supported the conclusion reached by WorkplaceNL respecting Mr. O’Rourke’s abilities and entitlement to benefits. He was satisfied that the weight of evidence supported the conclusion reached by WorkplaceNL.

Nevertheless, I am concerned that the Peckford Decision concluded at page 7: I note the Commission, in reaching its decision, has considered all the medical evidence and the recommendations of the occupational therapists. From this, it has concluded the weight of evidence supports an ability to work and earn within restrictions. It is apparent from this conclusion, the Commission has concluded that the weight of evidence resulting from the FCEs outweighs the secondary work capability evidence supplied by the worker’s physicians.

Although not specifically noted by the Commission in its decision, there is the implication that the opinion of the medical providers on work capability, secondary to a medical diagnosis or treatment opinion, though relevant, is not accorded the same weight as that flowing from occupational therapists, whose professional expertise it is to assess and report on functional capacity. [Emphasis added.] [ 62 ] Read on its face, the conclusion by Mr.

Peckford that WorkplaceNL did not afford the evidence provided by the medical practitioners the same weight as that of the occupational therapists could run counter to Policy EN-20. As we have seen, that policy requires Workplace NL, when addressing conflicting medical evidence, not to automatically prefer the medical evidence of one category of physicians or practitioners over that of another. If WorkplaceNL did so, then its decision would not comply with the Act , regulations or policies and would be wrong in law and the Peckford Decision would be unreasonable in upholding it.

[ 63 ] But that is not what WorkplaceNL did and it is not what the Peckford Decision ultimately decided. In suggesting that WorkplaceNL preferred the opinions of the occupational therapists (and Mr. O’Rourke’s family physician), over that of Dr. Murray, WorkplaceNL conducted a detailed examination of the evidence, the professionals providing it, and their respective interactions with Mr. O’Rourke. I am satisfied, therefore, that WorkplaceNL did not automatically prefer the evidence of one practitioner over another, but only did so after a careful weighing of appropriate criteria. Standard of Review Applied by Mr.

Peckford [ 64 ] Of somewhat more concern for me is Mr. Peckford’s conclusion on page 7: As noted earlier, the Commission, in its decision, has applied the evidence and considered the relevant policy and legislation. The Commission has weighed the recommendations that resulted from two different occupational therapists as having greater weight than the worker’s account that he is incapable of working, augmented by the opinions of his medical providers and has accepted the greater weight favours he has the capability to work.

I find, in my review of this case, the Commission has considered and weighed all the evidence and has reached a reasonable decision. [Emphasis added.] [ 65 ] Because the decision by the Review Division of the WorkplaceNL decision must be conducted on the basis of a correctness review ( Jesso ), Mr. Peckford would be in error if he reviewed the WorkplaceNL decision for reasonableness. But the use by Mr. Peckford of that one word is inconsistent with the entirety of the Peckford Decision. Mr. Peckford noted that WorkplaceNL considered: (

a) the applicable legislation and policy; (

b) the submissions made on behalf of the worker; (

c) the medical evidence submitted from Mr. O’Rourke’s family physician, his neurosurgeon, and the anesthesiologist; and in particular the comments by the neurosurgeon that he was surprised that the worker had been found capable of working; (

d) the FCEs; and (

e) the assessments that found Mr. O’Rourke capable of working in four NOC Code categories. [ 66 ] The commencement of the final paragraph of the Peckford Decision states, as we saw, “As noted earlier, the Commission, in its decision, has applied the evidence and considered the relevant policy and legislation.

The Commission has weighed the recommendations that resulted from two different occupational therapists as having greater weight than the worker’s account that he is incapable of working, augmented by the opinions of his medical providers and has accepted the greater weight favours he has the capability to work.” This would support a finding by Mr. Peckford that the WorkplaceNL decision complied with the Act , regulations and policies. Mr.

Peckford’s statement that a reasonable decision was reached by WorkplaceNL only reinforces his lack of jurisdiction to substantiate his own decision for that of WorkplaceNL given that he found the decision by WorkplaceNL to be in compliance with the Act , regulations and policies. The Barry Decision [ 67 ] Mr. O’Rourke’s legal counsel requested reconsideration of the decision of the Chief Review Commissioner. On February 21, 2011, Mr. Barry replied to the request for reconsideration and found that there were no grounds to interfere with the decision of Mr. Peckford. Mr.

Barry concluded that the request for reconsideration appeared to be an attempt to re-adjudicate the matter. He also concluded that contrary to the position of Mr. O’Rourke’s lawyer, a specific and full evaluation of the professionals in each case was completed. [ 68 ] As we saw above from Allen in this Court, it may be necessary to comment on the Barry Decision insofar as it may supplement or “redress” something at issue in the Peckford Decision. [ 69 ] In the Barry Decision, Mr. Barry fully considered Mr. O’Rourke’s grounds for reconsideration that Mr. Peckford: (

a) did not properly consider or apply the law; (

b) failed to make a proper analysis of the medical and other evidence; and (

c) made assumptions regarding the weight given the FCEs versus that of Mr. O’Rourke’s physicians. [ 70 ] In his analysis, Mr. Barry correctly identified that the review by Mr. Peckford of the WorkplaceNL decision was not an appeal as desired by Mr. O’Rourke. Furthermore, he analyzed the complaints that Mr. Peckford had improperly applied

section 60 of the Act and Policy EN-20. Mr. Barry was satisfied that Mr. Peckford had satisfied himself that WorkplaceNL had properly considered and

weighed the evidence. Mr. Barry could find no error of law (page 4). [ 71 ] Specifically, Mr. Barry conducted an analysis and was satisfied that WorkplaceNL applied Policy EN-20 correctly (page 4). He found that giving greater weight to the evidence of the occupational therapists in this case was in keeping with the Policy and led to the weight of the evidence supporting a finding that Mr. O’Rourke retained some work capacity. This was not a case of equally balanced evidence and, therefore, did not invoke that aspect of section 60(1) . Consequently, Mr.

Barry found that WorkplaceNL correctly applied section 60(1) of the Act (page 4). He, therefore, saw no reason to interfere with the Peckford Decision. CONCLUSION [ 72 ] Whether or not the Barry Decision redresses any aspect of the Peckford Decision, it does supplement it. I am satisfied that the two, when read together, are reasonable. In the final analysis, Mr. O’Rourke has not established that the Peckford Decision was unreasonable, notwithstanding that some of the choices of phrase in it are not ideal.

As supplemented by the Barry Decision, it meets the requirements of justification, transparency and intelligibility. Importantly, the outcome falls within the range of those that are possible and acceptable and are defensible in respect of the facts and the law. [ 73 ] I would dismiss the application with costs on column 3 of the Rules of the Supreme Court, 1986, SNL 1986, c. 42, Sch. D , to the First Respondent . Although I valued the written materials provided by the Second Respondent, it did not take a position on the merits of the application.

In this case, the Review Commission properly restricted its role to providing the Court with an explanation of the standard of review, the nature of the Review Division’s jurisdiction, and an explanation of the record including reference to decisions interpreting

section 60 of the Act (see Weir’s Construction Limited v. Warford (Estate) , 2018 NLCA 5 , at paragraph 40 ). Therefore, it shall bear its own costs. _____________________________ Robert P. Stack Justice