IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Spottiswood v. Worksafe BC, |
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2018 BCSC 809 |
Date: 20180516
Docket: S162369
Registry: Vancouver
Between:
Amy Spottiswood
Petitioner
And
Worksafe BC,
Workers’ Compensation Appeal Tribunal,
Kinvillage association Kinsmen Retirement Centre
Respondents
Before: The Honourable Mr. Justice Milman
Reasons for Judgment
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Counsel for the Petitioner: |
S.P. Grey |
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Counsel for the Respondent, Workers’ Compensation Appeal Tribunal: |
T. Martiniuk |
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Place and Date of Hearing: |
Vancouver, B.C. March 12, 2018 |
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Supplementary Submissions received from Counsel: |
April 27, 2018 |
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Place and Date of Judgment: |
Vancouver, B.C. May 16, 2018 |
Table of Contents
E. Did the WCAT panel err by favouring the opinion of Dr. Henry over that of Dr. Johnston?
H. Did the WCAT panel err by failing to apply Board policy?
[1] On July 8, 2013 the petitioner, Ms. Spottiswood, was employed by the respondent, Kinvillage Association Kinsmen Retirement Centre (the “Employer”) as a care aide in its care facility in Delta, British Columbia. On that date, she fell on a wet floor, injuring her buttocks, head and lower back (the “Work Injury”).
[2] Following the Work Injury, Ms. Spottiswood sought and obtained compensation from the respondent, the Workers’ Compensation Board, operating as WorkSafeBC (the “Board”), under s. 5 of the Workers’ Compensation Act, R.S.B.C. 1996, c. 492 (the “Act”).
[3] The Board provided her with temporary wage loss and other benefits for approximately nine months from the date of the Work Injury to April 10, 2014. The Board eventually determined that:
a) the Work Injury had resolved by April 11, 2014; and
b) Ms. Spottiswood was capable of returning to work in a graduated capacity between March 5 and April 10, 2014,
and limited her benefits accordingly.
[4] As permitted by the Act, Ms. Spottiswood sought a review of those determinations by the internal review division of the Board. The review officer confirmed the Board’s decision. Ms. Spottiswood then appealed the decision of the review officer to the respondent, the Workers’ Compensation Appeal Tribunal (“WCAT”), which, by a decision dated January 14, 2016 (the “Decision”), confirmed the decision of the review officer following an oral hearing.
[5] On this application, Ms. Spottiswood seeks judicial review of the Decision. She submits that it was “patently unreasonable” on various grounds and should be set aside and the matter remitted back for determination anew by WCAT. The application is opposed solely by WCAT, which argues that the Decision was not patently unreasonable and on that basis that the petition should be dismissed. The Employer has not taken part in the proceedings at any stage.
[6] It is common ground that the Decision can only be set aside on a showing that it was patently unreasonable.
[7] That standard derives from s. 58 of the Administrative Tribunals Act, S.B.C. 2004, c. 45 (the “ATA”), which states as follows:
Standard of review with privative clause
[58] (1) If the Act under which the application arises contains or incorporates a privative clause, relative to the courts the tribunal must be considered to be an expert tribunal in relation to all matters over which it has exclusive jurisdiction.
(2) In a judicial review proceeding relating to expert tribunals under subsection (1)
(a) a finding of fact or law or an exercise of discretion by the tribunal in respect of a matter over which it has exclusive jurisdiction under a privative clause must not be interfered with unless it is patently unreasonable,
(b) questions about the application of common law rules of natural justice and procedural fairness must be decided having regard to whether, in all of the circumstances, the tribunal acted fairly, and
(c) for all matters other than those identified in paragraphs (a) and (b), the standard of review to be applied to the tribunal's decision is correctness.
(3) For the purposes of subsection (2) (a), a discretionary decision is patently unreasonable if the discretion
(a) is exercised arbitrarily or in bad faith,
(b) is exercised for an improper purpose,
(c) is based entirely or predominantly on irrelevant factors, or
(d) fails to take statutory requirements into account.
[8] Section 58 is in Part 9 of the ATA. Part 9 of the ATA applies to the Decision by virtue of s. 245.1(w) of the Act.
[9] The term “privative clause” is defined in s. 1 of the ATA to mean:
[1] … provisions in the tribunal's enabling Act that give the tribunal exclusive and final jurisdiction to inquire into, hear and decide certain matters and questions and provide that a decision of the tribunal in respect of the matters within its jurisdiction is final and binding and not open to review in any court …
[10] Sections 254 and 255 of the Act are privative clauses within the meaning of that provision. Those provisions state as follows:
[254] The appeal tribunal has exclusive jurisdiction to inquire into, hear and determine all those matters and questions of fact, law and discretion arising or required to be determined under this Part and to make any order permitted to be made, including the following:
(a) all appeals from review officers' decisions as permitted under section 239;
(b) all appeals from Board decisions or orders as permitted under section 240;
(c) all matters that the appeal tribunal is requested to determine under section 257;
(d) all other matters for which the Lieutenant Governor in Council by regulation permits an appeal to the appeal tribunal under this Part.
Appeal tribunal decision or action final
[255] (1) Any decision or action of the chair or the appeal tribunal under this Part is final and conclusive and is not open to question or review in any court.
(2) Proceedings by or before the chair or appeal tribunal under this Part must not
(a) be restrained by injunction, prohibition or other process or proceeding in any court, or
(b) be removed by certiorari or otherwise into any court.
(3) The Board must comply with a final decision of the appeal tribunal made in an appeal under this Part.
(4) A party in whose favour the appeal tribunal makes a final decision, or a person designated in the final decision, may file a certified copy of the final decision with the Supreme Court.
(5) A final decision filed under subsection (4) has the same force and effect, and all proceedings may be taken on it, as if it were a judgment of the Supreme Court.
[11] The Decision, being the dismissal of an appeal from a decision of a review officer, falls squarely within the ambit of s. 254 of the Act.
[12] The test for determining whether a non-discretionary WCAT decision was “patently unreasonable” under s. 58 of the ATA was recently explained by Fisher J., writing for the Court in Shamji v. Workers’ Compensation Appeal Tribunal, 2018 BCCA 73 at paras. 35-39:
[35] There is no dispute that the standard of review before the reviewing judge was patent unreasonableness in accordance with s. 58(2)(a) of the Administrative Tribunals Act, which applies to WCAT as a tribunal protected by a privative clause.
[36] The question on appeal is whether the reviewing judge correctly applied the standard of patent unreasonableness to the WCAT decision. The decision of the reviewing judge should be set aside and the appeal allowed only if the WCAT decision was patently unreasonable: Vandale v. British Columbia, 2013 BCCA 391; Erskine v. British Columbia, 2014 BCCA 96.
[37] The meaning of this highly deferential standard in relation to non-discretionary decisions was discussed in Law Society of New Brunswick v. Ryan, 2003 SCC 20 at para. 52:
… a patently unreasonable defect, once identified, can be explained simply and easily, leaving no real possibility of doubting that the decision is defective. A patently unreasonable decision has been described as “clearly irrational” or “evidently not in accordance with reason” (Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, at pp. 963‑64, per Cory J.; Centre communautaire juridique de l’Estrie v. Sherbrooke (City), [1996] 3 S.C.R. 84, at paras. 9-12, per Gonthier J.). A decision that is patently unreasonable is so flawed that no amount of curial deference can justify letting it stand.
[38] This meaning continues to apply to the patent unreasonableness standard under the Administrative Tribunals Act post Dunsmuir v. New Brunswick, 2008 SCC 9: Preast at para. 28, citing Pacific Newspaper Group Inc. v. Communications, Energy and Paperworkers Union, 2014 BCCA 496 at para. 48.
[39] With respect to factual matters, it is not for a court on judicial review or on appeal to second guess the conclusions drawn from the evidence considered by WCAT and substitute different findings of fact or inferences drawn from those facts. As this Court held in Speckling v. British Columbia (Workers’ Compensation Appeal Tribunal), 2005 BCCA 80 at para. 37:
A court on review or appeal cannot reweigh the evidence. Only if there is no evidence to support the findings, or the decision is “openly, clearly, evidently unreasonable”, can it be said to be patently unreasonable.
[13] Ms. Spottiswood contends that the WCAT panel erred by misapprehending the evidence that was before it in various ways, thereby making the Decision patently unreasonable. In particular, she attacks the following two findings of fact supporting the Decision:
a) the Work Injury did not aggravate a pre-existing lower back degenerative disc condition; and
b) Ms. Spottiswood was capable of returning to work after April 11, 2014.
[14] Ms. Spottiswood submits that those findings were patently unreasonable because in articulating the reasons of the WCAT panel, the Vice Chair merely adopted the conclusions of the review officer, which were themselves patently unreasonable because:
a) there was no medical evidence to support the conclusion of the review officer to the effect that the worsening of Ms. Spottiswood’s condition in July 2013 was unrelated to the Work Injury;
b) the review officer misstated the evidence in concluding that Ms. Spottiswood was diagnosed only with contusions in July 2013, when in fact she was diagnosed with lumbar strain;
c) the review officer relied on an unreasonable opinion of the Board’s medical advisor, Dr. Henry, to the effect that Ms. Spottiswood did not feel more pain following the Work Injury because she did not use more pain medication;
d) the review officer misstated the conclusions and recommendations in a discharge report that was prepared following Ms. Spottiswood’s participation in an occupational rehabilitation programme regarding her ability to return to work;
e) the review officer unreasonably favoured the incorrect opinion of Dr. Henry over that of Dr. Johnston, a neurologist, regarding Ms. Spottiswood’s ability to return to work;
f) the review officer misstated the conclusions in the report of Dr. Adrian, a physiatrist, regarding Ms. Spottiswood’s ability to return to work;
g) the review officer wrongly stated that neither Dr. Johnston nor Dr. Adrian had diagnosed Ms. Spottiswood with a low back sprain/strain injury, when in fact they had; and
h) the Board, the review officer and WCAT failed to apply Board policy that requires them to decide matters in favour of the worker whenever the evidence is evenly weighted and not to reject the worker’s evidence without an adequate foundation.
[15] Ms. Spottiswood refers in this regard to the following conclusion of the review officer:
Overall, I am not persuaded that the worker sustained an aggravation of pre-existing degenerative back condition in the July 2013 work incident. The worker reported increased pain and severely decreased low back range of motion in the months following the work incident, but I am unable to relate this worsening of symptoms to the July 13 work incident as there is a lack of temporal connection.
[16] Ms. Spottiswood submits that this conclusion is inconsistent with the evidence. In particular, there was evidence that she had tried to return to work approximately two weeks after the Work Injury but the attempt aggravated her back pain, causing her to leave work again. She also refers to the report of Dr. Koss, her family doctor, which supported the existence of a connection between the Work Injury and her condition in July 2013.
[17] In response, WCAT submits, first, that the Vice Chair did not specifically adopt the reasoning of the review officer in this regard, only her recitation of the facts as set out at para. 11 of the Decision. At para. 46 of her reasons, the Vice Chair did adopt the reasons of the review officer but only in relation to the second issue on the appeal, i.e., the entitlement to further wage loss benefits.
[18] Second, WCAT submits that, in any event, this ground of review flows from a misapprehension of the reasons of the review officer. The review officer did not find that there was no connection between the Work Injury and the worsening of Ms. Spottiswood’s condition in July 2013, but rather between the Work Injury and the worsening of her condition “in the months following the work incident.” The latter conclusion was well supported by the evidence.
[19] I agree with WCAT that the Vice Chair did not make the error that Ms. Spottiswood attributes to her. Even if this aspect of the review officer’s conclusions formed part of the Decision of the WCAT panel, it was open to both of them to conclude that the worsening of Ms. Spottiswood’s symptoms in the months following the Work Injury was unrelated to the Work Injury for lack of a “temporal connection.”
[20] At para. 43 of the Decision, the Vice Chair wrote as follows:
I am persuaded by Dr. Henry’s opinion that temporal to the claim injury, the worker’s opiate use did not increase. I prefer and give greater weight to Dr. Henry’s evidence in this regard over the testimony of the worker because Dr. Henry’s opinion accords with the PharmaNet records. I also prefer Dr. Henry’s opinion that the worker was taking pain medication for chronic musculoskeletal symptoms.
[21] Contrary to Ms. Spottiswood’s submission, Dr. Henry’s opinion served as a valid basis in the medical evidence to support the Vice Chair’s conclusion, affirming that of the review officer, that the worsening of Ms. Spottiswood’s pre-existing condition in the months following the Work Injury was unrelated to the Work Injury.
[22] I therefore reject this ground of review.
[23] Ms. Spottiswood refers in this regard to the following conclusion of the review officer, as adopted by the WCAT panel: “[t]he reports of the worker’s attending physicians in July 2013, diagnose her with contusions only.” In fact, Dr. Koss had diagnosed her with lumbar strain in his reports of both July 15 and 30, 2013.
[24] In response, WCAT acknowledges that the review officer made the error that is attributed to her under this ground of review. It says, however, that the error was inconsequential and did not in any way affect the result. It notes that the decision makers, at all three levels, accepted that Ms. Spottiswood had suffered not just a contusion, but also a sprain/strain injury, and indeed awarded her benefits on that basis.
[25] Elsewhere in her decision, the review officer expressly accepted that Dr. Koss had diagnosed Ms. Spottiswood with a lumbar sprain. The Vice Chair, in her decision also acknowledged expressly that Ms. Spottiswood had experienced a back strain.
[26] I agree with WCAT that the error of the review officer in this regard was inconsequential. I therefore reject this ground of review.
[27] Ms. Spottiswood submits that Dr. Henry’s opinion was unreasonable and should not have been relied upon because “[t]here can be other reasons why a doctor does not immediately prescribe pain medication following an injury.”
[28] While WCAT acknowledges that both the review officer and the WCAT panel relied on Dr. Henry’s opinion in that regard, it disputes that the inference drawn by Dr. Henry was an unreasonable one.
[29] WCAT argues that Ms. Spottiswood’s suggestion that there may have been other reasons for Dr. Koss to have prescribed pain medication is speculative. Ms. Spottiswood adduced no evidence at either review level to explain Dr. Koss’s decision in that regard.
[30] WCAT adds that during the hearing before the WCAT panel, Ms. Spottiswood testified herself that the reason she received less pain medication following the Work Injury was that she was trying to wean herself off such medication. The WCAT panel concluded that her evidence in that regard was not credible because, among other things, she was mistaken about her use of such medication before and after the Work Injury. In her testimony, she sought to explain her reduced use of pain medication following the Work Injury by asserting that her pre-Work Injury usage consisted of “extended release” opioids, whereas following the Work Injury she needed to take the “immediate release” variety in order to help her cope with the increased level of pain she was feeling. This was demonstrated to be untrue upon review of the PharmaNet records, which showed frequent use of “immediate release” opioids before the Work Injury as well.
[31] I agree with WCAT that there was no reversible error in the WCAT panel’s reliance on the opinion of Dr. Henry associating Ms. Spottiswood’s level of pain with her consumption of pain medication. It was not unreasonable for Dr. Henry to form his opinion on that basis and for the WCAT panel to rely on it.
[32] I therefore reject this ground of review.
[33] Ms. Spottiswood refers in this regard to the following account of the facts in the review officer’s reasons, as adopted by the WCAT panel:
From October 2013 through February 2014, the worker participated in an occupational rehabilitation (“OR2”) program. In February 2014, she was discharged from the program as fit to return to work on modified pre-injury duties, pending upcoming electromyography (“EMG testing”).
[34] Ms. Spottiswood argues that in that sentence, the review officer misstated the conclusions and recommendations in the report. She refers to the following statements in the report:
During her time in the OR2 program, Ms. Spottiswood progressed with performing work simulation exercises, however she had significant difficulty performing work simulation exercises after December 16, 2013 due to a flare up of reported pain in her lower back and right leg. Upon discharge from the OR2 program Ms. Spottiswood did not demonstrate her critical job demands due to reported pain in her lower back and right leg. Please see Barriers and Recommendations for further information.
…
STATUS OF RETURN TO WORK. The treatment team is awaiting further medical clarification/clearance from the upcoming EMG study.
[35] WCAT responds that the review officer did not misstate the conclusions and recommendations in the discharge report. Rather, the review officer found that Ms. Spottiswood could return to work “on modified pre-injury duties.” This is consistent with the concluding recommendations in the report itself, which stated that “Ms. Spottiswood is Fit to Return to Work with Limitations – pending medical investigation.” The treatment team was said to be awaiting further medical clarification from the upcoming EMG study, which later showed no neurological cause for her complaints.
[36] I agree with WCAT that the review officer did not misstate the conclusions and recommendations in the discharge report. I therefore reject this ground of review.
[37] Ms. Spottiswood argues that the WCAT panel erred by favouring the opinion of Dr. Henry over that of Dr. Johnston. Dr. Johnston is a neurologist to whom Ms. Spottiswood was referred by the Board. In his report dated February 20, 2014, he concluded as follows: “Clearly, this woman cannot stand or walk for more than 30 minutes, so I do not see how she can return to her previous job at this time.” The review officer rejected that conclusion, relying, Ms. Spottiswood argues, on incorrect information – i.e., Dr. Henry’s report, which questioned the soundness of Dr. Johnston’s conclusions on the basis, among other things, that Dr. Johnston was unaware of Ms. Spottiswood’s history of back problems. Ms. Spottiswood submits that Dr. Henry’s report should have been seen as less reliable because he never examined her in person.
[38] WCAT responds that it was open to the review officer and the WCAT panel to favour the opinion of one doctor over another and its conclusions in that regard are entitled to deference. In any event, it argues, Dr. Henry was correct in relaying that Dr. Johnson did not have a full account of Ms. Spottiswood’s history. Dr. Henry notes as follows after quoting Dr. Johnston’s conclusions, as cited above:
Dr. Johnston was not provided with her past medical history of chronic right sided low back pain and narcotic usage and he was not provided with the information that she was attending an OR program and doing 6 hours of exercise/rehab per day up until she saw him.
[39] The only mention of the relevant history in Dr. Johnston’s report was as follows:
… she reports a back injury 8 years ago, which sounds as though it was a bruise to her low back. This resolved completely after some months of physiotherapy.
[40] I agree with WCAT that Dr. Johnston’s brief summary does not fairly describe Ms. Spottiswood’s history, as reflected elsewhere in the evidence. I therefore agree with WCAT that the evidence does not support Ms. Spottiswood’s allegation that Dr. Henry was mistaken in attributing to Dr. Johnston an incomplete awareness of her medical history. There is no valid basis to reverse the findings of the review officer and the WCAT Panel in favouring the opinion of Dr. Henry over that of Dr. Johnston.
[41] I therefore reject this ground of review.
[42] Ms. Spottiswood refers in this regard to the following conclusions of the review officer, as adopted by the WCAT panel:
In a May 23, 2014 consultation report, a physiatrist diagnosed the worker with mechanical low back pain resulting from a sprain/strain injury … The physiatrist noted that there was no medical contraindications to the worker’s participation in a pain program or graduated return to the workforce.
[43] Ms. Spottiswood submits that that statement was an unfair summary of the medical history because the physiatrist, Dr. Adrian had in fact stated as follows:
If available to her, I recommend that Ms. Spottis [sic] participate with a pain rehabilitation program with goals of optimizing her physical function through gradual rehabilitation, assist with pain management and coping strategies and optimize her medication intake. Towards completion of such a program, I recommend that she be assessed for a suitable graduated return to the workforce. There are no medical contraindications for her to participate with such a plan.
[44] I agree with WCAT that there is no reviewable error in the review officer’s summary of the conclusions in Dr. Adrian’s report.
[45] I therefore reject this ground of review.
[46] Ms. Spottiswood refers in this regard to the following summary by the review officer of the relevant history, as adopted by the WCAT panel:
The worker was assessed by a neurologist in February 2014, and a physiatrist in May 2014, and neither specialist diagnosed the worker with a low back sprain/strain injury.
[47] Ms. Spottiswood submits that that summary was inaccurate, first because the neurologist, Dr. Johnston, had concluded in his report of February 2014 as follows:
I think her problem is primarily mechanical. She does have degenerative SI joint pain and SI joint stretch tests are positive. She is tender over the SI joint. It may be that this is the primary source of her discomfort, given her mechanism of injury. She did fall with her right leg in markedly abducted and extended position.
[48] Second, Ms. Spottiswood refers to the May 23, 2014 report of the physiatrist, Dr. Adrian, which contains the very diagnosis that the review officer asserted is not there. That report concludes as follows:
I think Ms. Spottiswood suffered from a sprain/strain injury at work resulting in mechanical lower back pain.
[49] In response, WCAT submits that the apparent inconsistency, particularly with the clear diagnosis of Dr. Adrian, can be resolved by considering the context. The Board’s original position, ultimately upheld on review, was not that Ms. Spottiswood had never sustained a lumbar sprain/strain injury at all, but rather that it had resolved by April 2014. After adopting the facts in the review decision, the Vice Chair summarised the relevant claim history as follows, at para. 12 of the Decision:
The worker, a care aide, injured her buttocks, head and low back at work on July 8, 2013. The Board accepted her claim for a low back sprain/strain and contusions to the head and lower limbs. The Board suspended the worker’s wage loss benefits (for failure to participate in a graduated return-to-work plan) effective March 5, 2014 but that decision was varied by a July 15, 2014 Review Division decision. The Board implemented the July 15, 2014 Review Division decision in an August 28, 2014 decision letter. In that letter, a Board officer said that the worker’s aggravation of a pre-existing degenerative back condition was not compensable under this claim and the worker’s compensable low back sprain/strain had resolved by April 11, 2014. The Board officer paid the worker $559.32 for temporary wage loss under sections 29 and 30 of the Act from March 5, 2014 to April 10, 2014.
[Emphasis added].
[50] WCAT submits that in the impugned paragraph of the review officer’s reasons where she appears to deny the diagnosis by Dr. Johnston and Dr. Adrian of a lumbar sprain/strain, the review officer was merely noting that by the time Ms. Spottiswood’s wage benefits were terminated in April 2014, there was no longer a current lumbar sprain/strain diagnosis. The review officer was instead emphasizing the fact that any lumbar sprain/strain diagnosis was by then only historical.
[51] I agree with Ms. Spottiswood that the impugned sentence in the review officer’s report is problematic. It is not clear that the inaccuracy can be explained on the basis that the review officer was merely describing the lack of a current diagnosis as of April 2014. Dr. Adrian’s report is dated May 23, 2014 – i.e., more than a month after benefits were denied – and he appears to view the symptoms flowing from the Work Injury as ongoing (although like Dr. Johnston, Dr. Adrian was not provided with Ms. Spottiswood’s complete history).
[52] Nevertheless, it may be, as WCAT submits, that the review officer was here concerned with the timing as opposed to the fact of the diagnosis. In the next sentence of the review officer’s report the review officer observed that a still more recent diagnosis identified a different condition entirely:
Also, the worker provided a September 4, 2014 letter from her chiropractor and he diagnosed her with chronic sciatic nerve irritation as opposed to a strain/sprain injury.
[Emphasis added].
[53] In the next paragraph, there is further support for WCAT’s submission that the review officer was focused primarily on the timing of the sprain diagnosis. The review officer addressed the only lumbar sprain/strain diagnosis that appeared to be a relatively current one, i.e., that of Dr. Koss, and rejected it in the following terms:
I acknowledge that Dr. K[oss] continued to diagnose the worker with a lumbar sprain in a March 11, 2014 physician report. However, I give little weight to his opinion in this regard, as he also indicated that the cause of the worker’s low back pain was still being investigated and that there was no definitive diagnosis for her symptoms.
[Emphasis added.]
[54] If the review officer was only concerned with whether a lumbar sprain injury had occurred at all, she would not have noted that Dr. Koss “continued” to make that diagnosis.
[55] Finally, although the review officer may have misstated the evidence in the impugned sentence, on the previous page of her report she accurately described the diagnosis in Dr. Adrian’s report in the following terms:
In a May 23, 2014 consultation report, a physiatrist diagnosed the worker with mechanical low back pain resulting from a sprain/strain injury …
[56] Given the discrepancy, I am not persuaded that the review officer’s misstatement of the evidence, if that is what it was, led to an error by the WCAT panel when it rendered the Decision.
[57] In summary, if the review officer erred as alleged under this ground, I find the error to be similar in its impact to the one that Ms. Spottiswood alleges and WCAT has acknowledged under ground B, which involves a similar mischaracterisation of the diagnosis of Dr. Koss. To the extent the review officer misstated the diagnoses in Dr. Adrian’s and Dr. Johnston’s reports as well, the error was inconsequential and had no impact on the conclusions of the WCAT panel in rejecting the appeal, given that the WCAT panel, like the review officer and the Board, accepted that Ms. Spottiswood had suffered a lumbar sprain/strain injury at the outset.
[58] I therefore reject this ground of review.
[59] Ms. Spottiswood alleges that the WCAT panel erred by failing to follow Board policy in two ways: first, by refusing to find in favour of the worker where the evidence was evenly weighted and second, by rejecting the worker’s evidence without an adequate foundation.
[60] Ms. Spottiswood refers to s. 250 of the Act, which states as follows:
Appeal tribunal decision-making
250 (1) The appeal tribunal may consider all questions of fact and law arising in an appeal, but is not bound by legal precedent.
(2) The appeal tribunal must make its decision based on the merits and justice of the case, but in so doing the appeal tribunal must apply a policy of the board of directors that is applicable in that case.
(3) Despite subsection (1), the appeal tribunal is bound by a prior decision of a panel appointed under section 238 (6) unless
(a) the specific circumstances of the matter under appeal are clearly distinguishable from the circumstances addressed in the prior decision,
(b) subsequent to the prior decision, a policy of the board of directors that the panel relied upon in the prior decision was repealed, replaced or revised, or
(c) the prior decision has been overruled under subsection (3.1) of this section.
(3.1) Despite subsection (3), a panel appointed under section 238 (6) may overrule a prior decision of another panel appointed under that section.
(4) If the appeal tribunal is hearing an appeal respecting the compensation of a worker and the evidence supporting different findings on an issue is evenly weighted in that case, the appeal tribunal must resolve that issue in a manner that favours the worker.
[Emphasis added.]
[61] Ms. Spottiswood also refers to paragraphs 97.32 and 97.34 in chapter 12 of Volume II of the Rehabilitation Services & Claims Manual of the Board (the “RSCM”), which state in relevant part as follows:
97.32: A statement of a worker about his or her own condition is evidence insofar as it relates to matter that would be within the worker’s knowledge, and it should not be rejected simply by reference to an assumption that it must be biased. Also, there is no requirement that the statement of a worker about his or her won condition must be corroborated. The absence of corroboration is, however, a ground for considering whether the worker should be interviewed by the Board, or telephone inquiries made, or whether anything relevant could be discovered by having the worker medically examined. A conclusion against the statement of the worker about his or her own condition may be reached if the conclusion rests on a substantial foundation, such as clinical findings, other medical or non-medical evidence, or serious weakness demonstrated by questioning the worker, or if the statement of the worker relates to a matter that could not possibly be within his or her knowledge.
...
97.34: Where there are differences of opinion among doctors, or other conflicts of medical evidence, the Board must select from among them. The Board must not do it by automatically preferring the opinions of one category of doctors to another category, nor should it be done by counting heads, so many opinions one way and so many another. The Board must analyze the opinions and conflicts as best as possible on each issue and arrive at her or his own conclusions about where the preponderance of the evidence lies. If it is concluded that there is doubt on any issue, and that the evidence supporting different findings on an issue is evenly weighted in that case, the Board must follow the mandate of section 99 and resolve that issue in a manner that favours the worker.
…
[Emphasis added.]
[62] Ms. Spottiswood submits that the Vice Chair breached s. 250 of the Act and both paragraphs 97.32 and 97.34 of chapter 12 of volume II of the RSCM in rejecting her testimony without adequate grounds. She refers in this regard to para. 31 of the Decision:
While the worker provided testimony, I find that this question turns on the medical evidence before me. In particular, the worker made submissions that I should employ the IHP process (under s. 249 of the Act) or refer the matter back to the Board under s. 246 of the Act to clarify the diagnosis. I am not persuaded that either is necessary as I find that there is sufficient evidence before me to allow me to decide the appeal.
[63] WCAT responds that the argument under this ground is misconceived. It submits that the requirement in s. 250(4) of the Act only applies if WCAT itself has made a finding that the evidence is evenly weighted, and it has not done so here. It is not for this Court to weigh the evidence anew and come to such a conclusion, where the WCAT panel has not done so. WCAT cites in this regard Vandale v. Workers’ Compensation Appeal Tribunal, 2012 BCSC 831, where Griffin J. (as she then was) stated as follows:
[91] WCAT points out that s. 250(4) only applies to evidence, not to contrasting decisions, and so it argues that the Petitioner’s reliance on this section is misguided. It submits that the WCAT panel must first conclude that the evidence on an issue is evenly weighted, before the section applies, and since that did not happen here, the section is inapplicable.
[92] I agree that the fact that the Doogan Decision and the WCAT Original Decision may have interpreted the medical evidence differently does not give rise to the application of s. 250(4) of the Act, especially where the WCAT Original Decision does not suggest that the evidence is evenly weighted. As suggested in Basura v. British Columbia (Workers’ Compensation Board), 2005 BCSC 407 at paras. 34-36, this court’s task is not to engage in a re-weighing of the evidence and a hindsight application of s. 250(4). Assuming that WCAT could weigh the evidence (and leaving aside the implications of the third argument regarding the binding findings of fact made by the Appeal Division Decision which I will address below), there was no basis for concluding here that WCAT found the evidence to be evenly weighted or was patently unreasonable in failing to so find.
[64] As in Vandale, there was no finding by the WCAT panel in this case that the evidence was evenly weighted, nor even an allegation by Ms. Spottiswood that it was patently unreasonable for the WCAT panel not to have made such a finding. I therefore agree with WCAT that s. 250(4) is inapplicable here.
[65] Finally, I am not persuaded that the Board, the Vice Chair or the WCAT panel rejected Ms. Spottiswood’s evidence as to her condition in a manner that conflicted with the RSCM, as cited above or otherwise (even if WCAT were bound by each of those policies, which it submits it is not). Rather, for the reasons already canvassed earlier in this judgment, I find that they each articulated a “substantial foundation” in the evidence for doing so, particularly the opinion of Dr. Henry, among other things.
[66] I therefore reject this ground of review.
[67] I have rejected all of the grounds of review that were advanced.
[68] The petition is therefore dismissed.
“Milman J”
The Honourable Mr. Justice Milman