IN THE SUPREME COURT OF BRITISH COLUMBIA
In the Matter of the Judicial Review Procedure Act, R.S.B.C. 1996,
c. 241; and the Workers Compensation Act, R.S.B.C. 1996, c. 492; and
a decision of the Workers’ Compensation Appeal Tribunal rendered July 21,
2005,
WCAT-2005-03861
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Citation: |
Plesner v. BC Hydro and Power Authority et al, |
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2006 BCSC 1947 |
Date: 20061010
Docket: L052252
Registry: Vancouver
Between:
Peter Plesner
Petitioner
And:
British
Columbia Hydro and Power Authority, Workers’ Compensation Board
of British Columbia and Workers’ Compensation Appeal Tribunal
Respondents
Before: The Honourable Justice Wong
Oral Reasons for Judgment
In Chambers, October 10, 2006
| Counsel for the Petitioner: |
Ms. R. Murdock |
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| Counsel for the Respondent, Workers’ Compensation Appeal Tribunal: |
Mr. V. Pylypchuk |
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| Counsel for the Respondents, Workers’ Compensation Board of B.C.: |
Mr. S. Nielsen |
|
|
Counsel for the Attorney General, British Columbia |
Ms. N. Sharma |
|
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Place of Trial/Hearing: |
Vancouver, B.C. |
|
[1] THE COURT: Although this is a matter that was raised under a s. 15 Charter of Rights issue, I have concluded that the matter should be remitted to the Workers’ Compensation Appeal Tribunal for a rehearing.
[2] The reasons and findings of the Appeal Tribunal at pages 12 and 13, in my view, are internally inconsistent.
[3] And I quote, on page 12 in the certificate.
On the question of the worker's first appeal (the Review Division decision regarding the workplace exposure) his representative argued that the attending physician's chart notes would not be relevant, as his respiratory difficulties after exposure were not documented in them. If there is no medical confirmation of such symptoms it is difficult to see the basis for any claim, particularly as the worker was seeing his attending physician for other matters. This would have made it very easy for him to at least mention any such symptoms, even if they were not of sufficient intensity to warrant medical attention. That aside, I find the reasoning of the Board medical advisor persuasive; a temporal relationship between the work exposure and the bouts of the illness was lacking, and, with reference to the one significant respiratory illness in late 2002, there was a possibility it could be related to reflux. In other words, while I do not doubt that the worker had some exposure to sulfur dioxide, the overwhelming weight of the evidence lies against the possibility that it caused, aggravated or accelerated his health problems.
On the question of the worker's second appeal (the Review Division decision which addressed the worker's claim for mental stress) I agree with the worker's representative that all the medical evidence supports the likelihood that the worker developed PTSD. Like the review officer, I also accept her point that PTSD does not have to develop immediately in order to be compensable; there can be some delay before onset.
On the question of the cause of the worker's PTSD, all the medical and psychological evidence to date mentions the succession of incidents at work over several years, but all those treating the worker have also described the culminating incident of January 16, 2003 as the one that “tipped” (to use Dr. Koo's terminology) him into “full syndromal” PTSD. As a result, I do not agree with the employer's representative's argument that the worker's situation would qualify as 'chronic stress'. Instead, the weight of the evidence supports the likelihood that notwithstanding the earlier incidents, and any stress that they might have caused, the worker's PTSD was an acute onset that was triggered by one specific, work‑related cause. It is also evident that all those treating the worker were concerned about the possibility that the worker's perceptions might not have been shared by his co‑workers, and might have represented an exaggeration of reality.
This leads directly to the same question that the review officer addressed ‑ was the January 16, 2003 work place incident a traumatic event in the context of section 5.1 of the Act and item #13.30 of the RSCM II? Although I do not doubt that the worker retrospectively perceived it as extremely traumatic, I conclude that the incident did not fulfill the statutory and policy requirements. I would agree with all the reasons outlined by the review officer, and I also note that the insights from the co‑workers illustrated the principle that there is an important difference between a potentially serious event and an extremely emotionally disturbing event, as they were in a position to fully appreciate the dangers of the situation. Item #13.30 includes the requirement that the event is “generally accepted as traumatic”, and I conclude that this event was not.
[4] It seems to me, in this particular case, causal connection was found and chronic stress aspects were eliminated. I think what the trier of fact had to assess were outlined in some of the other cases cited by counsel, and that is to decide whether the incident qualifies as a traumatic event. It was also proper to ask whether it is more probable than not whether the facts of the case support a situation of a traumatic event for a person already vulnerable from chronic stress.
[5] A finding was clearly accepted by the Tribunal: the medical diagnosis of PTSD arising out of that one specific work-related cause. Under those circumstances, it seems to me it was not necessary to go on with the final paragraph, which in turn reached a conclusion and result that was inconsistent with the first finding. On the other hand, it may well be that the phraseology on the second paragraph did not specifically state what the vice chair intended to convey.
[6] For these reasons I have concluded that the conclusion, in short, is internally inconsistent and the hearing should be reheard.
[7] I might add that, at the previous hearings and reviews, Mr. Plesner was not represented by legal counsel. The issue before the various hearing tribunals was really whether or not Mr. Plesner qualified under the existing policy. If it is deemed, in the new hearing, that some standard other than the pure objective standard should be addressed, then perhaps a mixed subjective-objective standard may be in order for people like Mr. Plesner's situation, so that the result not be potentially unreasonable. That issue can be raised under s. 230(51).
[8] It is for these reasons that I would set aside the decision and direct that it be re‑heard.
[9] I will hear from the parties as to costs. For reasons that I have found, it was necessary for Mr. Plesner to launch this appeal. Much of the time here was taken on the Charter issues, which I found interesting but unnecessary to decide.
[10] I think Mr. Pylypchuk has already indicated that WCAT does not seek costs in these cases. What is the attorney general's position?
[11] MS. SHARMA: We don't seek costs.
[12] MR. NIELSON: We don't seek costs, my lord.
[13] THE COURT: All right. There will be no order as to costs, then.
[14] MS. FIORILLO: My Lord, might I just ask: May we have your decision in written form? Will you be issuing a written decision?
[15] THE COURT: No. I have already given my reasons. You can get a transcript of this. I think to complete the record, it may be helpful to include, as an appendix, all written submissions.
[16] MS. FIORILLO: Thank you, My Lord.
[17] THE COURT: Either the Court of Appeal or the Workers’ Compensation Appeal Tribunal, when they review it again, will know what has transpired here and the reason why I referred it back. Also for any issues that you might want to raise before the Workers’ Compensation Appeal Tribunal, on the question of patent unreasonableness.
[18] MS. FIORILLO: I appreciate that. Thank you very much.
[19] THE CLERK: Chambers proceedings is adjourned.
“R.S.K. Wong, J.”
The Honourable Mr. Justice R.S.K. Wong