McGrath v. Nova Scotia (Workers’ Compensation Board), 2013 NSCA 37

NOVA SCOTIA COURT OF APPEAL Citation: McGrath v. Nova Scotia (Workers’ Compensation Board) , 2013 NSCA 37 Date: 20130320 Docket: CA 359340 Registry: Halifax Between: Hyler W. McGrath Appellant v. Workers’ Compensation Board, Workers’ Compensation Appeals Tribunal, Attorney General of Nova Scotia Respondents Judge: The Honourable Mr. Justice Jamie W.S. Saunders Appeal Heard: November 28, 2012 Subject: Left Ankle Injury. Claim for Earnings-Replacement Benefits and Medical Aid. Workers’ Compensation Act, S.N.S. 1994-95, c. 10, as amended. Standard of Review. Causation. Burden of Proof. Corroboration. Proper Application of s. 187 (the tie-breaker” provision).

Summary: Worker appealed the rejection of his claim for temporary earnings-replacement benefits and medical aid following an injury to his left ankle in 1997 after a fall at a construction site. He said the Tribunal erred in requiring “corroboration” of his testimony that his left ankle troubles and subsequent surgeries were attributable to the 1997 injury, and failing to properly interpret or apply s. 187 of the Act which mandates that any doubt is to be resolved in the worker’s favour. Held: Appeal dismissed.

While the expression “corroborate” was an unfortunate choice of words, the WCAT did not err in its assessment of the evidence or application of the law to the issues that arose in the worker’s case. A decision- maker can always look to the record for corroboration, in the sense of determining what evidence there is to support or bolster the worker’s claim, or the contrary position. After a careful review of the appellant’s testimony and the rest of the documentary record, the WCAT was not persuaded that the necessary causal connection had been established between the fall in 1997 and the worker’s surgeries

in 2000 and 2008. A s. 187 analysis is not required in every case. The Court explained how the “tie-breaker” function of s. 187 is triggered and, when it is, how it ought to be properly applied. Here, the evidence linking the worker’s claim to the 1997 mishap had not risen to the level that it was evenly balanced with the evidence to the contrary. Thus, the application of s. 187 became irrelevant. The Tribunal’s decision and the reasoning which led to it met the standard of reasonableness. This information sheet does not form part of the court ’ s judgment. Quotes must be from the judgment, not this cover sheet.

The full court judgment consists of 19 pages. NOVA SCOTIA COURT OF APPEAL Citation: McGrath v. Nova Scotia (Workers’ Compensation Board) , 2013 NSCA 37 Date: 20130320 Docket: CA 359340 Registry: Halifax Between: Hyler W. McGrath Appellant v. Workers’ Compensation Board, Workers’ Compensation Appeals Tribunal, Attorney General of Nova Scotia Respondents Judges: Saunders, Fichaud and Farrar, JJ.A. Appeal Heard: November 28, 2012, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Saunders, J.A.; Fichaud and Farrar, JJ.A. concurring.

Counsel: Kenneth H. LeBlanc and Vanessa Nicholson, for the appellant Paula Arab and Madeleine Hearns, for the respondent Workers’ Compensation Board Alexander MacIntosh, for the respondent Workers’ Compensation Appeals Tribunal Reasons for Judgment: [ 1 ] Mr. Hyler McGrath injured his left ankle on August 4, 1997, while working with a construction company in the city.

He fell after slipping off a walkway which ran along the outside of a piece of machinery he was using. [ 2 ] He had two operations, the first in March, 2000 and a second in December, 2008. [ 3 ] His claim for temporary earnings-replacement benefits and medical aid was denied at both the Workers’ Compensation Board and Appeals Tribunal levels. [ 4 ] He now appeals to this Court claiming the Tribunal erred in law both in its analysis of the evidence and its

interpretation and application of its home statute. [ 5 ] For the reasons that follow I would dismiss the appeal. I will provide a brief

summary of the circumstances surrounding Mr. McGrath’s injury, medical treatment and the proceedings related to his claim in order to provide context to the analysis that follows. Background [ 6 ] All decision-makers in charge of Mr. McGrath’s claim have remarked that the medical evidence in his file is very limited. Notes describe him falling a distance of seven feet after slipping off a walkway. An accident report was completed. Mr.

McGrath met with his family doctor a week later, complaining of a sore left ankle, but the mishap did not lead to any time off work. [ 7 ] Three years later he consulted with an orthopaedic surgeon, Dr. V. Venugopal who diagnosed the appellant as having a defect in his left ankle known as osteochondritis dissecans of the talus. On March 13, 2000, an osteotomy was performed to repair the defect. The results were positive and the appellant was able to maintain an active lifestyle for about six years.

He had a second operation in December, 2008, to remove screws and other debris that were causing the worker considerable pain and restrictions. Post-surgery correspondence between his treating physicians confirmed that Mr. McGrath continued to suffer “chronic ankle pain” which he could only manage by taking heavy doses of powerful prescription medicines. Ultimately he was forced to leave his job as a painter and high steel bridge worker when others on his crew became concerned for his safety because of the “drugged out” appearance he had while on medication. [ 8 ] On July 5, 2010, Mr.

McGrath reported to the Board that he had been off work for a month from the Halifax Bridge Commission. He said his problems dated back to 1997 when he fell while working as a labourer at Dexter Construction Co. Ltd. His claim for temporary earnings-replacement benefits and medical aid was denied by a Board Case Manager who, in a decision dated October 18, 2010, concluded that there was insufficient evidence to support a finding that the need for surgery was causally connected to the workplace incident on August 4, 1997.

In her decision, the Case Manager said: Chart notes were reviewed which revealed the Worker had severe and distinct pre-existing ankle issues that suspected degenerative changes and reported imaging suggestive of abnormal architecture and OCD defect dating back to 1991. [ 9 ] She accepted the opinion from the Board’s Medical Advisor dated October 13, 2010, that Mr.

McGrath’s pre-injury history showed “severe” signs of joint difficulties making ... it very clear that the problem that ultimately required these surgeries was in existence well prior to the injury and that the surgeries would have been inevitable even if the compensable injury had not occurred. [ 10 ] Mr. McGrath appealed that decision to the Board’s Hearing Officer. In a decision dated February 18, 2011, the Hearing Officer denied the appeal, saying: I concur with the reasoning in the decision of October 18, 2010.

The totality of the evidence does not support a finding that the Worker’s ongoing difficulties or need for surgery in 2000 are related to the compensable left ankle injury that he sustained in 1997. The medical evidence in the Worker’s claim file supports a finding that the Worker had significant pre-existing issues with respect to his left ankle and the medical evidence does not support that the 1997 incident had any residual impact on his joint region in his ankle. ...

There is no evidence in the Worker’s claim file to support a finding that he is entitled to further TERB and/or Medical Aid assistance in relation to his compensable injury of August 4, 1997. [ 11 ] Mr. McGrath appealed the Hearing Officer’s decision to the WCAT. The appeal proceeded by way of an oral hearing where Mr. McGrath appeared with a worker’s representative and testified. At the hearing, reports from Mr. McGrath’s treating orthopaedic surgeon, Dr. V. Venugopal were introduced into evidence.

Owing to the confusion that arose from inconsistencies in those reports, a supplementary opinion was sought from Dr. Venugopal, and which was subsequently filed with the Tribunal. [ 12 ] In a written decision dated September 29, 2011, (WCAT #2011-102-AD) the WCAT (Appeal Commissioner Brent Levy) denied Mr. McGrath’s appeal. The Commissioner held:

The evidence reflects that the Worker had left ankle problems in the early 1990s. ... the medical evidence does not support that the 1997 fall activated the osteochondritis dissecans. The evidence does not support that there was an earnings loss or that medical attention was regularly sought following the injury. ... There was insufficient medical evidence to corroborate the Worker’s testimony that his left ankle problems are attributable to his 1997 injury. The Worker’s appeal is denied .... [ 13 ] Mr. McGrath now appeals the WCAT decision to this Court.

Issues [ 14 ] The only issue in the present appeal arises as a result of the language used by the WCAT Commissioner when denying the worker’s appeal. The Commissioner concluded his reasons with this statement: There is insufficient medical evidence to corroborate the Worker’s testimony that his left ankle problems are attributable to his 1997 injury. (Underlining mine) [ 15 ] By an Order of this Court dated June 12, 2012, Mr.

McGrath was granted leave to appeal on the single ground: Did WCAT err in law by requiring corroborative evidence before the Worker could be entitled to the statutory benefit of the doubt provided for in s. 187 of the Workers’ Compensation Act , S.N.S. 1994-95, c. 10, s. 1 ? [ 16 ] The appellant says the Tribunal erred in law in two respects: first, by requiring corroboration; and second, by incorrectly applying the provisions of s. 187 such that the worker was denied the statutory benefit of the doubt to which he was entitled.

Standard of Review [ 17 ] There is no dispute that the issue in this case raises a question of law reviewable on a standard of reasonableness. As this Court said recently in Enterprise Cape Breton Corporation v. Hogan , 2013 NSCA 33 : [33] ... The decision under appeal in this case is “well within the expertise of the Tribunal, interpreting its home statute and applying it to the facts before it”. It did not “involve questions of law that are of central importance to the legal system outside its expertise.” Therefore, the “standard of review must be reasonableness”. Saskatchewan (Human Rights Commission) v.

Whatcott , 2013 SCC 11 , ¶168. See as well Jivalian v. Department of Community Services (Nova Scotia) , 2013 NSCA 2 , ¶14-15. Analysis [ 18 ] Despite the able arguments of counsel for the appellant, I am not persuaded that the Tribunal’s decision or the reasoning which led to it are unreasonable. I see no error in the manner in which the Commissioner considered the evidence or applied the relevant statutory provisions to the issues before him. In my respectful opinion, the WCAT decision falls within a range of possible, acceptable outcomes, defensible both with respect to the facts and the law. Dunsmuir v.

New Brunswick , 2008 SCC 9 . [ 19 ] The Tribunal understood that the issue it was required to decide was whether the worker’s left ankle problems were causally related to his 1997 injury when he fell a distance of seven feet from the piece of heavy equipment on which he was standing. The Commissioner conducted a detailed and careful review of the worker’s file which comprised the usual notes and charts as well as reports from the various physicians who had treated or consulted with the worker both before and after the left ankle injury sustained on August 4, 1997.

The WCAT cited the relevant statutory provisions noting in particular that s. 187 : ... applies when there is doubt on a particular issue and the disputed possibilities are evenly balanced. In these circumstances, the issue must be resolved in the Worker’s favour. [ 20 ] After recognizing that causation was a question of fact, the Commissioner articulated the correct legal test to be applied when causation is in dispute. He said: ... Causation is a practical question of fact. The general legal test for causation is a “but for” test. If this test is unworkable, a “material contribution” test is applied.

Medical opinion evidence is often helpful when determining causation, but it is not necessarily determinative. Common sense may be used to infer causation where appropriate. [ 21 ] The question the WCAT had to resolve was whether Mr. McGrath’s claim for compensation and medical aid could be reasonably linked to the injury he suffered in August 1997, and which the worker blamed as the source of his troubles. [ 22 ]

Section 10 of the Workers’ Compensation Act , S.N.S. 1994-95, c. 10, as amended (the “ Act ”) provides: ELIGIBILITY Board to pay compensation 10

(1) Where , in an industry to which this Part applies, personal injury by accident arising out of and in the course of employment is caused to a worker , the Board shall pay compensation to the worker as provided by this Part. (Underlining mine)

[ 23 ]

Section 37 of the Act says: EARNINGS – REPLACEMENT BENEFITS Earnings-replacement benefit 37

(1) Where a loss of earnings results from an injury , an earnings-replacement benefit is payable to the worker in accordance with this Section. (Underlining mine) [ 24 ]

Section 102 of the Act provides: MEDICAL AID Medical Aid 102

(1) The Board may provide for any worker entitled to compensation pursuant to this Part, or any worker who would have been entitled to compensation had the worker suffered a loss of earnings equivalent to the amount determined pursuant to subsection 37(4), any medical aid the Board considers necessary or expedient as a result of the injury . (Underlining mine) [ 25 ] To summarize, in order to be eligible for compensation Mr.

McGrath had to persuade the Tribunal that he suffered a personal injury by accident “arising out of and in the course of employment” ( s. 10 ) such that his claim for loss of earnings “results from” that injury whereby he would be entitled to earnings-replacement benefits ( s. 37 ). Further, after establishing that he was “entitled to compensation” he could apply to the Board for such medical aid as “the Board considers necessary or expedient as a result of the injury” ( s. 102 ). [ 26 ] In his testimony before the Tribunal, Mr.

McGrath said he twisted his ankle at a construction site when he slipped off the side of a machine used to burn contaminated soil. He fell about seven feet and landed on a pile of rocks. He did not think he had broken his ankle, but had merely twisted it. His foot was “really sore” but he kept working. Ten days later it was still “really sore” so he went to see his family physician, Dr. Holland. He told Dr. Holland that he first thought that he had “re-injured an old injury” for which he had consulted with Dr. W. D.

Canham, an orthopaedic surgeon, “back in the early ‘90s.” That referral he said was a result of hurting his ankle when playing ball hockey. He said Dr. Canham “never did no x-rays ... he never did no surgeries” but just “ended up giving me a cortisone shot in my ankle”. When asked to describe the result of that treatment he said: Great. My foot was as good as new after he gave me the cortisone shot. He made the comment that it wasn’t going to probably last very long, but it did. After the cortisone shot, I was as good as new again. [ 27 ] He said he resumed playing ball hockey and was very active.

Besides working as a general labourer he also had his own successful business as a painter, usually outdoors, marking lines and designated spaces in parking lots. After the fall at the construction site in 1997 he said Dr. Holland sent him to a specialist but that he had to wait more than a year and a half before he got in to see Dr. Venugopal. Between 1997 and his consultation with Dr.

Venugopal he said it felt like “someone was pinching off the back of my ankle. ... some days I was fine; other days, I could barely walk” and “... literally had to just sit on the ground for an hour.... get off my feet because it almost brought tears to my eyes at times”. [ 28 ] The first surgery, an osteotomy, was performed on March 13, 2000.

The appellant testified “I was as good as new after that operation” and that even though the specialists “warned me about complications that could come from this operation” and that he would never play ball hockey or be as active as he once was, he enjoyed “a good six years” after the surgery and was able to continue working at Dexter’s as well as carry on his own painting business. [ 29 ] He said that in 2005 or 2006 he started developing pain again in his ankle. It got so bad that he gave up his painting business.

He joined the Halifax Bridge Commission in 2008 as a painter and carried on there until 2010 but had to stop because his co-workers were worried that his use of powerful pain killers put him at risk of falling while painting the bridge spans at extreme heights. At the time of the hearing he said: I can barely walk on it. Unless I’m on medication, I can barely walk. After 20 minutes, it’s like someone’s taken a hammer and nail and driving it through the side of my foot.

He described the strong medication he was taking, simply to cope with the pain. [ 30 ] During final submissions on his behalf the appellant’s advisor stressed that the (hockey) injury from 1990-91 for which Mr. McGrath consulted with Dr. Canham, had nothing to do with the injury he suffered at the construction site in 1997 and which necessitated the surgeries in 2000 and again in 2008. Mr. McGrath’s advisor placed particular emphasis upon the report of Dr. Venugopal dated “February 4, 2004” ((sic) This must be a typo. I will assume the advisor meant February 4, 2011 which is the date on the report).

In the advisor’s submission, Dr. Venugopal: … clearly and unequivocally connected the problem with .... osteochondritis dissecans to his work injury in 1997. [ 31 ] However, the appellant’s advisor acknowledged that Dr. Venugopal had raised an important caveat in his report, that being that he had not had the opportunity to access or review Dr. Canham’s chart notes. [ 32 ] The advisor then made reference to Dr. Venugopal’s second report dated April 20, 2011. In this report Dr. Venugopal said he had been able to access Dr. Canham’s records following which Dr. Venugopal stated, in part: ... from my

interpretation of Dr. Canham’s notes there was injuries (sic) to both ankles. ... the second is a left ankle problem where he does have some evidence of osteochondritis on the initial MRI.

[ 33 ] In his submissions the appellant’s advisor acknowledged that Dr. Venugopal “... is contradicting himself in these two reports” and that he had attempted to contact Dr. Venugopal to seek clarification. This led to further discussions between the Commissioner and the appellant’s advisor whereby the Commissioner agreed to set the matter over to allow the appellant sufficient time to seek a further “report from Dr.

Venugopal, clarifying what it is that he’s concluding in this report.” [ 34 ] Such a report was obtained and filed with the Tribunal so that by the time the Commissioner reserved to consider the merits of Mr. McGrath’s appeal he had three reports from Dr. Venugopal: February 4, 2011; April 20, 2011; and July 13, 2011. [ 35 ] It is obvious from reading the WCAT decision that the Commissioner conducted a very thorough and careful review of the record when assessing Mr. McGrath’s claim for benefits and medical aid. Among the documentation provided by Dr. Holland were reports from Dr. W.H.

Canham, the orthopaedic surgeon who had treated Mr. McGrath back in the early 1990s. As noted by the Tribunal: Dr. Canhan’s reports reflect that he was perplexed by the Worker’s presentation. [ 36 ] Evidently Dr. Holland had referred the worker to Dr. Canham to get his opinion as to the source of the man’s complaints. In a letter to Dr. Holland dated January 9, 1991, Dr. Canham wrote: ... He is an absolute enigma and, as you know, I have had Dr. McGillivrary look at him and I have been puzzled by this foot problem for some time. X-rays about six months ago, as you know, were normal.

We carried out a bone scan which showed a slight abnormality and I recommended an NMR. I was not convinced an NMR would help me very much as this man had a history of being involved in martial arts and was athleticly quite active, playing a lot of ground hockey. He attributed his injury to ground hockey and I must admit I thought he possibly had a ligamentous injury or an occult osteochondritis dissecans that we could not appreciate .... I am disturbed, nonetheless, that he is coming back still complaining of pain when I can’t explain it. I, therefore, gave some thought to the proper form of investigation.

I am not convinced an NMR is an answer but would probably rather have a radiologist consulted to see what could be done for this young man. ... (Underline mine) [ 37 ] From this we know that back in 1991, some six years prior to the workplace mishap, Dr. Canham suspected that Mr. McGrath’s left ankle injury might have been brought on by osteochondritis dissecans. [ 38 ] To help him in figuring out the “enigma”, Dr. Canham sought the assistance of Dr. J.J.P. Patil, an expert in rehabilitative medicine. In a letter dated May 17, 1991, Dr. Patil reported to Dr.

Canham the results of his examination which included electromyography, and nerve conduction studies, administered to rule out entrapment neuropathies or tarsal tunnel syndrome. Dr. Patil said: ... To summarize, he is a 28 year old cleaner who had had chronic pain in the left ankle associated with numbness in the left foot ... over the last year and a half. At times, it is aggravated by weight bearing but at times he is symptom free. ...

I am sure you must have received the EMG report by now but basically this did not show any evidence of a tarsal tunnel syndrome or an entrapment in the sensory branches of the peroneal nerve that supplies the dorsum of the foot. There was no evidence of peripheral neuropathy. IMPRESSION – I think that this gentleman probably has early degenerative arthritis affecting his left ankle subtaler joint.

In addition to that, he probably has some chronic tendo achillis tendonitis which perhaps gives rise to swelling in the region resulting in perhaps some irritation of the medial and the lateral plantar nerve. ... [ 39 ] Evidently Dr. Canham gave up his practice in 1995 following which Mr. McGrath came under the care of Dr.

Venugopal. [ 40 ] Included in the appellant’s file was the opinion from the Board’s Medical Adviser dated October 13, 2010, where the physician noted: Quite clearly the worker had severe and distinct prexisting [sic] ankle issues that suspected degenerative changes and reported imaging suggestive of abnormal architecture and OCD defect dating back to 1991.

Clearly this history is severe with suggestions of surgical intervention for joint difficulties and or neurological issues.. this is significant and severe at that age and cannot be ignored.. the issue of suspected strain years later in relation to the suspected compensable issue does not reveal any significant trauma nor problems that would imply an aggravation to an already existing issue that had been investigated and suspected of both bong [sic] and neurological issues.. I cannot logically conclude that an incident years later, had any impact here on this joint region. [ 41 ] Mr.

McGrath’s claim for benefits and medical aid found some support in Dr. Venugopal’s initial report dated February 4, 2011, where the surgeon had written: ... I saw Mr. McGrath for the first time regarding his ankle injury in August 1999. At that time he had previously been seen by Dr. Canham … [who] left his practice in 1995 ... I arranged for an MRI of his ankle and this showed an osteochondral defect . He then underwent surgery with a medial malleolar osteotomy and removal of loose bodies from his ankle plus curettage and drilling of the osteochondral defect.

Post-operatively he did well for some years and now he returns with increasing pain and discomfort. … With regard to the relationship to the original injury, from the information provided by the Board which is a synopsis of Dr. Canham’s notes which I do not have access to, … There are some notes as well which basically is a

summary of Dr. Canham’s notes which I have no access to. …

… there is no indication in any of Dr. Canham’s notes that there was an abnormality in the talus except for increased bone scan uptake in the upper talus ... The first diagnosis of osteochondritis dissecans was made in 2000 following his MRI . … From the notes that were available to me I did not see any evidence that he had an osteochondral injury at the time of his intial consult with Dr. Canham . I would have to give the patient the benefit of the doubt that when he fell seven feet he did have an injury to the ankle which could have resulted in the osteochondral injury.

The surgery was related to that and the problems at this time would be related to that. … (Underlining mine) [ 42 ] Clearly Dr. Venugopal felt that his patient’s difficulties and subsequent surgeries arose as a direct result of his fall at the construction site in 1997. It seems equally clear that Dr. Venugopal based his conclusion on the premise that there were no indications of left ankle defect prior to Dr. Venugopal’s diagnosis of osteochondritis dissecans “first” made in 2000 following an MRI. Subsequent to that opinion Dr. Venugopal gained access to Dr.

Canham’s records which caused him to file a second report dated April 20, 2011. These two reports were acknowledged by the appellant’s advisor as being confusing and contradictory and which then led to the Tribunal’s request for a third clarifying report ultimately received from Dr. Venugopal (dated July 13, 2011). [ 43 ] The mystery, uncertainty and confusion surrounding the appellant’s troubles over the years prompted the Tribunal to focus very carefully on the evidence.

This thorough and cautious analysis is reflected in the Commissioner’s reasons: The evidence includes several medical-legal reports prepared by Dr. Venugopal. Dr. Venugopal’s February 4, 2011 report noted that he had limited access to Dr. Canham’s records and the diagnostic tests from the early 1990s. Based on the information available, Dr. Venugopal stated that Dr. Canham’s reports did not describe an abnormality in the talus, with the exception of the upper talus, which Dr. Venugopal suggested might be secondary to trauma. Dr.

Venugopal stated that there was no evidence in the materials he reviewed of an osteochondral injury at the time of the Worker’s initial consult with Dr. Canham and that the first diagnosis of osteochondritis dissecans was made in 2000 following an MRI. Dr. Venugopal stated that the Worker’s problems were related to the osteochondritis dissecans and related surgery. As for the cause of the osteochondritis dissecans, Dr. Venugopal stated: I would have to give the patient the benefit of the doubt that when he fell seven feet he did have an injury to the ankle which could have resulted in the osteochondral injury.

Dr. Venugopal issued another report, dated April 20, 2011 (Exhibit “1"), after having reviewed Dr. Canham’s files. Dr. Venugopal noted that there was evidence of right and left ankle problems. Dr. Venugopal stated: I think there are two issues here. One is his right ankle which was possibly secondary to a hockey injury from my

interpretation of Dr. Canham’s notes, and the second is a left ankle problem where he does have some evidence of osteochondritis on the initial MRI and bone scans and tomograms which were done in the 90's. I suspect the problem with the left ankle has been ongoing since then. The Worker’s representative submitted at the hearing that this report was ambiguous given that there were no MRIs until that initially requested by Dr. Venugopal in 1999. Further clarification was sought from Dr. Venugopal. The substantive portion of Dr.

Venugopal’s July 13, 2011 report reads as follows: When going through all the information I have available, there is a bone scan which was dated 20/6/1990 suggesting there is a problem with his left ankle in the upper aspect of the talus very suggestive of a cortical defect which would be the same as an osteochondritis dissecans. He did not have an MRI at that time. The MRI was done by me in 1999 when I saw him for the first time. Essentially what he is telling me today and in the past is that even though he had a previous problem with his ankle he was asymptomatic until he had the injury in 1997.

It is possible that he did have an osteochondritis dissecans which was asymptomatic, and whatever happened to him in 1997 has aggravated his problems. The evidence reflects that the Worker had left ankle problems in the early 1990s. The Worker testified that these problems resolved and that he did not experience ankle problems prior to the 1997 injury. The Worker does not appear to have sought regular medical attention for his ankle prior to the 1997 injury.

This lack of ongoing medical attention, combined with a fall in 1997 from a considerable height, supports the contention that the Worker’s current problems are related to the 1997 injury. Dr. Venugopal noted in his first consultation in 1999 that the Worker described left ankle problems for the preceding two years. This would temporally correlate with a 1997 injury. There is, however, limited medical evidence of such problems. The Worker kept working and did not regularly see Dr. Holland concerning problems with his ankle. Dr. Holland and Dr.

Lynch have stated that the Worker’s ankle problems are attributable to the 1997 injury. I prefer Dr. Venugopal’s reports given his experience treating the Worker and his expertise as an orthopaedic surgeon. Dr. Venugopal has also reviewed the Worker’s medical records, including those from Dr. Canham. Dr. Venugopal’s February 4, 2011 report stated that the Worker should be given the benefit of the doubt that his ankle problems related to the 1997 fall. This opinion appears to have been rendered without the benefit of Dr. Canham’s records. After reviewing such records, Dr.

Venugopal suggested that the Worker’s problems had been ongoing since the 1990s. Dr. Venugopal did create uncertainty by suggesting that there were MRI results prior to 1999. In his subsequent report of July 13, 2011, Dr. Venugopal clarified the erroneous reference to the MRI. Dr. Venugopal also cited a 1990 bone scan which suggested a cortical defect, which he stated was the same as an osteochondritis dissecans. Dr. Venugopal stated that it was possible that the Worker had an symptomatic osteochondritis dissecans that was aggravated by the 1997 injury.

Dr. Venugopal’s reports support that the osteochondritis dissecans was present in the early 1990s. While Dr. Venugopal suggests that it is possible that the osteochondritis dissecans was asymptomatic until 1997, the medical evidence does not support that the 1997 fall activated the osteochondritis dissecans. The evidence does not support that there was an earnings loss or that medical attention was regularly sought following the injury. The Worker’s representative cited a text for the proposition that symptoms resulting from an osteochondritis dissecans may not emerge for one to three years after trauma.

None of the Worker’s treating physicians, however, raised this possibility in the Worker’s circumstances. There is insufficient medical evidence to corroborate the Worker’s testimony that his left ankle problems are attributable to his 1997 injury. CONCLUSION: The Worker’s appeal is denied. There is insufficient evidence to attribute the Worker’s left ankle problems to his 1997 injury. [ 44 ] There can be no suggestion that the Tribunal missed or misapprehended important evidence. The Commissioner was alive to the differing views expressed by Drs. Holland and Lynch on the one hand and Drs.

Venugopal and Canham on the other. While agreeing that Dr. Venugopal’s initial views “did create uncertainty” those views were clarified by the time Dr .Venugopal accessed and re- considered all of Mr. McGrath’s medical file including the earlier reports from Dr. Canham. [ 45 ] After reflecting upon the contrasting medical opinions the Commissioner held: I prefer Dr. Venugopal’s reports given his experience treating the Worker and his expertise as an orthopaedic surgeon. It was up to the Commissioner to consider and evaluate the evidence so as to decide what weight – if any – he chose to give it.

ECBC , supra , ¶71 ff. This finding falls squarely within the Tribunal’s expertise and authority.

It is not our role to second guess such a decision. [ 46 ] As noted above, the Commissioner said towards the end of his reasons: There is insufficient medical evidence to corroborate the Worker’s testimony that his left ankle problems are attributable to his 1997 injury. [ 47 ] In my respectful view, the Tribunal’s use of the word “corroborate”, while perhaps an unfortunate choice of language, does not suggest to me any reversible error on the part of the Commissioner in evaluating the evidence or interpreting and applying the law to the issues before him.

A fair reading of the WCAT’s decision as a whole satisfies me that all the Commissioner meant to say was that after a careful review of the appellant’s testimony and the rest of the documentary record, there was not enough evidence to support the worker’s complaint that the workplace mishap in August, 1997 was the cause of his difficulties which necessitated the surgeries in 2000 and 2008. [ 48 ] The Tribunal can always look to the record for corroboration, in the sense of determining what evidence there is to support or bolster the worker’s claim, or the contrary position.

There is nothing inherently wrong in such an approach – in fact it would be surprising if such an analysis were not undertaken by any decision-maker. What would be an error would be a ruling that a worker’s claim failed simply because it had not been corroborated (in the sense of “backed up” or “affirmed”) by other evidence. Such a conclusion would amount to an error in law, requiring our intervention. But I do not consider the WCAT’s decision in this case, when read as a whole, saying any such thing. [ 49 ] Mr.

McGrath’s second principal complaint is that the Tribunal erred in its application of s. 187 of the Act . He says the WCAT effectively misplaced, or saddled him with too onerous a burden of proof, or failed to explain why s. 187 was not engaged to favour his position. Respectfully, I see no such error. The

section reads: Applicant entitled to benefit of doubt 187 Notwithstanding anything contained in this Act , on any application for compensation an applicant is entitled to the benefit of the doubt which means that, where there is doubt on an issue respecting the application and the disputed possibilities are evenly balanced, the issue shall be resolved in the worker’s favour. This provision, sometimes referred to as a statutory “tie-breaker” only comes into play when a doubt arises because the evidence on either side of a particular question or controversy is said to be evenly balanced.

In such circumstances – in other words where there is a doubt because the evidence said to support the competing “disputed possibilities” is evenly balanced – the benefit of the doubt always favours the worker’s position. But those circumstances did not arise in this case. As far as the WCAT was concerned, Mr. McGrath failed in his attempts to show that the evidence was evenly balanced and therefore no doubt arose. Accordingly, there was no reason to invoke s. 187 . [ 50 ] Neither do I accept the worker’s submission that the WCAT must embark upon a s. 187 analysis in every case.

That is not the approach contemplated by this statutory provision. While the Tribunal must always keep s. 187 in mind, its application is only triggered when the decision-maker is satisfied that the evidence on both sides of a material issue is evenly balanced, such that the statutory provision is then invoked so that the benefit of the doubt may be given to the worker. In this case, it is obvious that the Commissioner subjected all of the evidence to a necessarily close and careful scrutiny and, having done so, was not persuaded that evidence linking Mr.

McGrath’s claim to the August, 1997 mishap had risen to the level that it was evenly balanced with the evidence to the contrary. For that reason there was no need to invoke the “tie-breaker” function of s. 187 in the worker’s favour. [ 51 ] To be entitled to benefits and medical aid Mr. McGrath had to establish that his surgeries and subsequent complaints were

causally linked to the left ankle injury suffered at the construction site in August 1997. The “disputed possibility” would be that his present difficulties did not arise as a result of the 1997 fall, but were due to some other cause. Those were the contrasting possibilities which obliged the WCAT to focus on the issue of causation and very carefully review the testimony and documentary evidence which either supported, or contradicted the worker’s position. In the end the Commissioner was not left in any doubt as to the disputed possibilities surrounding the origins of Mr. McGrath’s complaints.

Thus the application of s. 187 became irrelevant. [ 52 ] Finally, I do not accept the appellant’s submission that because he was never “discredited” or “disbelieved” by the WCAT, the operation of s. 187 ought to have guaranteed a successful appeal and secured his entitlement to benefits and medical aid. With respect, s. 187 doesn’t work that way. In this case, credibility was not an issue. There was no attack upon the reliability or trustworthiness of the appellant’s evidence. But that is beside the point.

The fact that his evidence was accepted by the Tribunal (or at least not explicitly rejected) does not mean that therefore s. 187 is triggered and the worker is thereby automatically entitled to compensation because the matter should then be “resolved in the worker’s favour”. Simply stating the proposition reveals its flaw. To accept such a submission would mean that in every case, where the worker’s testimony was believed, the worker would be guaranteed compensation under the Act , no matter what the “other” evidence disclosed.

To accept such a proposition would effectively gut the comprehensive set of evaluative checks and balances that lie at the heart of this province’s workers compensation scheme. Conclusion [ 53 ] For all of these reasons I see no error in the manner in which the Commissioner applied the law or analyzed the evidence which led him to conclude that the necessary causal link between the worker’s claim for benefits and medical aid and his 1997 workplace injury had not been established.

The Tribunal’s decision and the reasoning which led to it fall within a range of possible, acceptable outcomes, defensible both with respect to the facts and to the law. I would dismiss the appeal. Saunders, J.A. Concurred in: Fichaud, J.A. Farrar, J.A.