2007 BCSC 862 Cianelli v. Workers' Compensation Board of B.C.

Before: The Honourable Mr. Justice Cullen

Reasons for Judgment

Counsel for the petitioner	M.T.L. Blaxland
Counsel for the respondent, Workers’ Compensation Appeal Tribunal	W.A. Pylypchuk
Date and Place of Trial/Hearing:	March 1 & 2, 2007
	Vancouver, B.C.

INTRODUCTION

[1] This is ostensibly an application for judicial review of a decision of the Workers’ Compensation Appeal Tribunal (WCAT) made on March 30, 2006 (the “March 06 WCAT Decision”). The March 06 WCAT Decision implicated two other WCAT decisions: a June 18, 2003, WCAT decision (the “2003 WCAT Decision”) and a June 1, 2006, reconsideration decision of the 2003 WCAT Decision (the “2006 Reconsideration Decision”).

[2] The petition seeking this review does not seek to quash either the 2003 WCAT Decision or the 2006 Reconsideration Decision, but because of the relationship among the three decisions, and the need to deal with all of them to address the substance of this application, counsel from WCAT has taken the responsible position that this petition engages a review of each decision.

[3] The petitioner, Giovanni Cianelli, is a 38 year old ride mechanic at the Pacific National Exhibition (“PNE”) where he has worked since 1987. Mr. Cianelli was injured at work on two occasions. On November 3, 1993, he suffered a back strain, a mild compression fracture of the L-4 disc, and a minimally displaced spiral fracture of the left distal fibula, when a ride he was working on fell on him. His claim at that time was accepted and following a permanent function impairment (“PFI”) examination on August 29, 1996, he was granted an award of 1.75% permanent function impairment disability based on ongoing low back pain and the mild compression fracture.

[4] The second accident occurred on July 6, 2003. It was described in the 2003 WCAT Decision as follows:

The injury on July 6, 2000 was noted to have occurred while working on a gondola. The gondola is described as being six to seven feet wide, 24 to 30 feet long and weighing 17,000 kilograms. It is suspended between two flatbed trailers, leaving a space of 12 to 15 inches wide between the two. It is through this space, in a six foot long gap between supports, that the worker fell. At the bottom of its swing, the gondola comes to within 15 inches of the deck. In order to remove the panels from the bottom of the gondola it was pulled back so that the bottom of the gondola was approximately four feet off the deck. At the time of injury the worker was facing perpendicular to the gondola, kneeling on his right knee, and reaching underneath to undo the bolts. When he heard the gondola brakes release, the worker realized his only escape route was through the 12 to 15 inch hole and began leaning in that direction to drop through the hole, when he was struck in the mid back by the gondola. He stated that from mid chest upwards his body was in the hole but from his mid chest downwards it remained on the deck. He stated he was not struck directly in the hips but he landed at an angle and was pushed through the hole, landing face down on the ground. He reported having hit his head on the struts and had incurred an injury on his forehead, nose and bruising to his right side ribs both front and back.

The worker was off work for approximately five weeks during which he saw his general practitioner and locum. He stated he was very painful in the rib section during this period of time but could remember no low back or leg pain. He stated he was taking Tylenol #3 medication which did not appear to help.

After five weeks he began a four hour per day graduated return to work program. He had no low back or right leg pain, but continued seeing his general practitioner every two weeks and his massage therapist for his rib pain. After a couple of weeks of this return to work program he noted the underneath portion of his foot began to get sore. After a couple more weeks his hours were increased to six hours per day and eventually to eight hours per day. It was during this time that the fair was underway which the worker stated was the busiest time of year due to there being more people, more rides and more breakdowns. His duties changed in that there were more ride checks, lifting and walking involved. At this time he noticed the foot pain was now going up the leg and into his back.

The worker stated that he had mentioned his low back complaints to his general practitioner in early September, but no formal record was made of it until he saw a specialist later in the month.

[5] The petitioner received coverage for the injury arising from the July 6, 2000, incident until his return to work. He subsequently sought coverage for the low back and right foot/leg pain, either as an aggravation of the 1993 injury or as a consequence of the July 2000 injury. The Board denied his claim initially by decision letter dated November 20, 2000, and subsequently by a reconsideration decision letter dated March 6, 2001.

[6] The petitioner appealed the denial of his claim in relation to the low back and right leg/foot pain. His appeal was dismissed by the June 18, 2003 WCAT Decision. The petitioner applied for a reconsideration of that decision which eventually led to the June 2006 Reconsideration Decision which denied a reconsideration, finding that the June 18, 2003, decision was not “patently unreasonable”, and hence did not constitute jurisdictional error.

[7] In the meantime, on October 9, 2003, the petitioner’s physician submitted a progress report which detailed ongoing and aggravated symptoms relating to his back and right leg. On April 2, 2004, his physician sent a subsequent progress report similarly detailing ongoing and aggravated symptoms relating to the petitioner’s back and right leg. The petitioner’s physician sent two further similar progress reports on August 17, 2004, and November 5, 2004. In the latter report, the physician made the following observations:

November 5, 2004 – Aggravation of back pain extending down the right leg with reduced ROM of the lumbar spine and reduced SLR of the right leg. Patient has a lot of numbness and pain along the lateral aspect of the right leg down to the right knee and right ankle. Patient takes Advil or Tylenol for pain. The pain at times keeps him awake at night. In view of this patient’s aggravation of his back condition, I recommend that he be reassessed at the visiting specialist clinic and have a repeat MRI to determine if there is any surgically treatable lesion.

[8] As a result of the November 5, 2004, progress report, the board considered whether the medical condition warranted either a reopening of the claim or the initiation of a new claim. In a decision letter dated November 19, 2004, the Board declined to reopen the petitioner’s claim or initiate a new claim. In doing so, the board member wrote:

… as your claim has not been accepted for any back complaints based on the WCAT findings which are binding, I am unable to reopen your claim for any further wage loss benefits or medical treatment. As your employer is not aware of any new injury and the November 5, 2004 medical report does not comment on the cause of your aggravation, I have no evidence that your aggravation was caused by any new incident at work. Therefore a new claim will not be started.

[9] On July 13, 2005, the review division of the Board upheld the Board’s decision of November 19, 2004. In the course of his decision, the review officer of the review division wrote as follows:

It is evident from the medical reporting and from the worker’s own submissions that he is seeking a reopening of the 2000 Claim on the basis of a reported worsening of low back and right leg symptoms. Simply put, neither of these conditions is compensable under the 2000 Claim. The WCAT findings from June 2003 are unambiguous on this point. As I am unable to relate the worker’s latest symptoms to the condition accepted under the 2000 Claim, I must find that subsection 96(2) is not engaged in this case. As a result, I deny the worker’s request with respect to this issue.

[10] The petitioner brought an appeal to WCAT which resulted in the March or WCAT Decision which upheld the review division/board decision not to reopen the 2000 injury claim or institute a new claim.

[11] In the course of his reasons, the WCAT Vice Chair wrote as follows:

Until such time as the worker is successful in his application for reconsideration of the June 18, 2003 WCAT decision, and if that reconsideration is favourable to the worker, the WCAT decision of June 18, 2003, that determined the worker’s low back and right leg symptoms were not compensable under either his 1993 or 2000 claims, stands and is binding on the Board. In that regard, the worker is not entitled to a reopening of either the 1993 or 2000 claim for low back and right leg symptoms.

THE MEDICAL FOUNDATION

[12] The initiation for the claim leading to this petition began with a progress report from the plaintiff’s then physician, Dr. Wolfsohn, dated September 21, 2000. It reads in part:

When the above went back to work on a modified schedule in the end of July, he suffered from a progressive discomfort. Has a pain over the right ankle then later up the leg and knee of the same side followed by right side of the low back. Lately worsening giving him difficulties to perform the six hour schedule.

[13] In the first aid report dated September 22, 2000, in relation to the claim, the petitioner reported:

There is no specific incident that caused my injury. While doing my regular duties the pain started in my heel and has gotten worse. It is moving up my leg and into my lower back.

[14] The first aid report concluded:

Pain starting in right heel getting progressively worse and moving up leg and into small of back, which is currently tender to touch.

[15] On September 26, 2000, the petitioner saw Dr. Cecil Hershler, a physical medicine and rehabilitation specialist. Based on his examination and the history of the July 6, 2000, accident, he reported as follows:

Giovanni has sustained a new injury to his pelvis and, in particular, the right sacroiliac joint. Based on the description of the trauma, he obviously twisted his trunk relative to the pelvis and probably also subjected the right leg to a twist as well. This would explain why he has some of the symptoms in the leg and the majority of the symptoms in the right sacroiliac joint. This was particularly noticeable on the straight leg test. This injury is completely separate from his pre-existing injuries (compression fracture of the L4 vertebra and spiral fracture in the left distal fibula). Examination of recent x-rays show no change. He still has a compressed vertebra at L4.

[16] On October 11, the Board case manager sent an email to the Board medical advisor, Dr. Tan, requesting her opinion in relation to the plaintiff’s claim. He wrote in part as follows:

While worker’s history on this claim contains his reports of regular back pain there are no indications that his back pain since 1996 resulted in any reopening of his 1993 claim for time off work. Following your review of the1993 claim and this claim I would appreciate your opinion on the following:

(1) Is the mechanism of injury under this claim consistent with the (delayed onset) back symptoms noted in medical reports from September 2000 to date? If so,

(2) Are you in agreement with Dr. Hershler that the symptom patterns reported by worker are separate and distinct from what symptoms one would expect from a reaggravation of worker’s 1993 compensable injury? Please clarify in detail.

(3) Does the objective information submitted offer clinical findings which would represent a significant, temporary deterioration in the worker’s pensionable status?

Any comments you may have upon suitable therapy for worker’s compensable injuries under this claim would be appreciated.

[17] In response, Dr. Tan wrote as follows in an email dated October 23, 2000:

Reviewed medical reports. Three questions need to be answered. Are the current back symptoms related to (1) the work injury July 2000 (2) reaggravation of the worker’s 1993 compensable injury (3) new injury in Sept 21, 2000.

(1) F11 from the date of injury to Sept 11, 2000 do not report any subjective or objective complaints of back symptoms. It is only the F11 on Sept 21, 2000 that reports the back symptoms. The time delay of 2 months suggests that the back symptoms is (sic) related to the injury sustained in July 2000.

(2) In 1993, the patient suffered a mild compression fracture of the L4 vertebrae (with possible sequelae of L5 nerve root compromise). The symptoms presented by the patient currently, pain in the right heel radiating up leg to lower back does not suggest L5 nerve involvement. As such, the present symptoms are not a result of reaggravation of the 1993 injury.

(3) Dr. Hershler has suggested that the patient twisted his torso relative to the pelvis and this has resulted in right sacro-iliac joint malalignment. There is no evidence to date suggesting that a twisting motion of the torso to the pelvis results in a shift in sacro-iliac joint alignment. In addition, SI dysfunction results in symptom patterns that include pain in groin, buttock and anterior thigh, symptoms that are inconsistent with patient’s. Dr. Hershler also stated that the patient’s right SI joint was out of alignment to his left and does not move as freely. SI joint immobility is a controversial cause of SI joint disorder. As such, the patient’s current back symptoms are not related to the work injury suggested by Dr. Hershler – twisting of torso relative to pelvis.

[18] On December 27, 2000, Dr. Tan sent an email correcting a typing error in her report of October 23, 2000. That email reads as follows:

There was typing error noted upon review of my previous log entry 00/10/23. The word “NOT” was omitted. I apologize for the oversight.

[19] Subsequently, on November 8, 2000, Dr. Hershler produced a follow-up consultation report repeating his diagnosis and observing:

Prior to returning to work, he has rested, received massage and physiotherapy and not putting much weight through his leg. It was only when he returned to work that he began to put a load through the right leg and was able to notice the pain. This became gradually more and more noticeable with time. This is a common phenomenon in injuries to the low back. Initially, many patients do not notice the back pain as they are concerned with other injuries and do not put themselves in work situations which load the back and legs.

[20] The November 20, 2000, Board decision found, based on Dr. Hershler’s report and the opinion of Dr. Tan, that the right leg/back symptoms were not consistent with the 1993 injury and there was no aggravation of that injury.

[21] In relation to the July 6, 2000, injury the Board found as follows:

On consideration of the reported mechanism of injury, the documentation on file prior to your doctor’s September 21, 2000 report and of Dr. Hershler’s September 26, 2000 report, the Board medical advisor was of the written opinion, by which I am guided, that your current back symptoms are not related to the mechanism of work injury. i.e. a twisting of your torso relative to your pelvis, as suggested by Dr. Hershler.

While I acknowledge your reported symptoms, I find insufficient evidence to relate your current back symptoms and the symptoms of altered sensation in your right foot to the work injury of July 6, 2000. As such I am unable to provide WCB support for health care rehabilitation strategies to address your back and right foot, nor am I able to pay.

[22] Following the November 20, 2000, decision, the petitioner pursued a reconsideration of the decision. On December 15, he provided a description of the accident as follows:

The Gondola, completely assembled weighs 17,500 kg. To remove the panels we had to lift the Gondola up. I was kneeling down on my right knee about a foot (1’) from the edge of the 15” opening that is about (6’) six feet from ground level. The Gondola let loose (air brakes timed out and released) I quickly looked for an escape route. The only one I could use was that 15” opening that leads to the ground. As I was heading towards the opening when the Gondola hit my back crushing me and kept its momentum pinning me and in turn rolling me around through the hole opening in an awkward position with my head, right shoulder & arm hanging over the edge of the 15” opening throwing me (6’) six feet to the ground there were obstacles of steel frame pointing out of the opening. I weigh 250 lbs. (pounds), 6’2” (6 feet 2 inches) and a large frame.

[23] On January 8, 2001, Dr. Tan examined the plaintiff. In her report of that date she noted the following under “General Observations”:

Mr. Cianelli had a normal gait. He was able to sit upright with both feet on the ground. He stumbled with heel walking and was able to toe walk. He was able to hop on one foot but had difficulty hopping on his right foot. He was able to perform the Trendelenburg test but stated that it was more painful on his right leg and it also felt weaker. He was able to squat three times but stated that it hurt his right buttock, knee and foot.

[24] Under the heading “Examination of his Posture”, Dr. Tan noted:

… Palpation of the spine revealed tenderness and right paravertebral spasm along the lumbar spine.

[25] He had normal range of motion for the cervical spine, shoulder, hip and knees:

Straight leg raising was 60° to the left and 45° to the right passively. Straight leg raising on the right could be actively brought to 60° with pain.

[26] Dr. Tan further noted that the petitioner “has reduced pinprick sensation along the lateral aspect of his right leg, touch sensation was normal.”

[27] Dr. Tan’s tentative diagnosis was “mechanical lumbar strain and degenerative disc disease.” But her diagnosis was conditioned by “some neurological findings, which should be further investigated with a CT scan … [which will] reveal any evidence of nerve impingement in the lumbar spine.”

[28] In her requisition for a CT scan, Dr. Tan included under “Relevant History”:

To determine cause of nerve root irritation.

[29] Under “Tentative Diagnosis” she indicated:

Low back pain due to crush/twisting injury and prior L4 compression injury.

[30] The Imaging Report from the CT Scan dated January 26, 2001, reported for L-3/4:

Mild left facetal osteoarthritis with vacuum sign. Patent lateral recess. No spinal stenosis. Anterior medullary disc protrusion at superior end-plate of L4.

[31] No findings were made at L-4/5 or at L-5-S1. The left sacroiliac (“SI”) joint showed “mild degeneration with vacuum sign.”

[32] Under the heading “Comment”, the report’s author wrote “Does the L-3/4 left facet change parallel a clinical facetal syndrome?”

[33] On February 27, 2001, the petitioner was examined again by Dr. Hershler, who noted that the petitioner continued to complain of significant symptoms and said that weight bearing exercise increased the pain in his right back. He noted the petitioner “remains locally tender with pressure into the soft tissues of the right sacroiliac joint but not the left” and concluded: “Intermittently, the sacroiliac joints move out of alignment and this is probably the reason why he benefits from regular chiropractic treatments.”

[34] In the meantime on February 22, 2001, the Board case manager sent the following email to Dr. Tan:

I would appreciate your re-review of all medical information to file including the recent CT scan of the lumbar spine and Dr. Hershler’s reports. Please also refer to your at board medical examination the results of which are not yet on file.

Following your review I would appreciate your opinions as to whether the back symptoms and SI problems noted by Dr. Hershler are relatable to the mechanism of injury under current claim or under the 1993 low back Workers’ Compensation Board claim (compression #L4)? Please clarify your opinions with respect to consistency of symptoms across medical exams, and specificity of symptoms consistent or not with L4, facet, SI or lumbar ligament strains.

[35] In response, Dr. Tan sent the following email on February 23, 2001:

1) Whether the back symptoms and SI problems noted by Dr. Hershler are relatable to the mechanism of injury under current claim

On the day of injury, the worker was working on the underside of the gondola when the brake accidentally released; he dived and landed prone between the ground and decking and was crushed on his right rib cage and back. There was no twisting motion. “A common finding in patients suffering from mechanical backache is pain situated over the sacroiliac joint and tenderness in this region. This does not mean that the SI joint is the source of pain. Anatomical configuration of the components of the sacroiliac joint makes the joint extremely stable. In patients under the age of 35, minimal sliding and rotary movements occur, but considerable force, such as that generated by falls from heights or motor vehicle injuries, is required to push the sacroiliac joint beyond its physiologically permitted range. This leads to true post-traumatic painful osteoarthritic degeneration of the joint that has an unequivocal clinical presentation.” The worker’s initial examination with Dr. Hershler, where Dr. Hershler diagnosed SI malalignment, was not consistent with the picture described above.

In addition, CT lumbar spine, Jan ’01 revealed mild left facetal osteoarthritis. This does not parallel a clinical facetal syndrome as the worker did not demonstrate findings consistent with clinical facetal syndrome nor are the worker’s symptoms left sided. There is also left SI joint mild degeneration which does not correlate with clinical findings. There were no signs of nerve root impingement.

As such, I am unable to relate the mechanism of injury/worker’s symptoms to Dr. Hershler’s diagnosis of right SI joint malalignment.

2) Whether the back symptoms and SI problems noted by Dr. Hershler are relatable to the 1993 low back Workers’ Compensation Board claim (compression #L4)

A board medical examination revealed some soft neurological findings to be clarified by CT scan. As noted above, CT scan did not reveal any findings that are consistent with the worker’s current symptoms.

The worker’s present back symptoms are unrelated to the previous claim (compression #L4)

The worker’s diagnosis remains mechanical back strain. At the time of at board medical examination, the worker had full ROM, mild spasm and tenderness in the right lumbarsacral region which should not limit his return to work.

[36] On March 6, 2001, the Board member issued his reconsideration decision. In that decision, he noted:

Medical reports from the date of injury to September 11, 2000 do not report any subjective or objective complaints of back pain. The board medical advisor who reviewed the file presented an opinion that the time delay of two months suggests that the back symptoms noted in the medical report were not relatable to the injuries you sustained in July 2000.

[37] The Board also considered whether the lower back/right leg symptoms matched or whether “the mechanism of the July 6, 2000 injury as described” could have caused the right sacroiliac joint maladjustment injury diagnosed by Dr. Hershler. The Board concluded that the mechanism of the injury did not involve a twisting motion or the considerable force required for sacroiliac maladjustment and therefore did not match Dr. Hershler’s diagnosis. The Board also determined, relying on Dr. Tan’s opinion, that the petitioner’s symptoms did not match the 1993 WCB claim injury.

[38] The Board concluded:

In light of the above, the Board Medical Advisor remains unable to relate the mechanism of injury or your current low back symptoms to Dr. Hershler’s diagnosis of a right sacroiliac joint malalignment … The Board Medical Advisor also reiterated that she was unable to relate your current low back and right foot symptoms to your 1993 WCB claim injury. …

I am unable to maintain an active claim in the presence of objective medical information that corroborates temporary permanent or partial disability from returning to work due to the injuries accepted under the claim. I have weighed all the medical evidence and opinion to file. On balance I find insufficient evidence to:

(1) change or modify my decisions in the November 20, 2000 decision letter;

(2) relate the mechanism of injury or the current symptoms in your low back and right foot to Dr. Hershler’s diagnosis of a right SI joint malalignment; or

(3) allow me to conclude that you remain disabled from work as a consequence of the accepted injury on claim i.e. for the wounds, cuts and lacerations to your forehead, chest, shoulder and nose.

[39] On March 14, 2001, the petitioner appealed the March 6, 2001, Board decision joining it to an appeal from the November 20, 2000, decision. On March 3, 2003, the review board and the appeal division were replaced by WCAT. Pursuant to the transition provisions of the Workers’ Compensation Amendment Act (No. 2), 2002 S.B.C. 2002, c. 66, the petitioner’s appeal from the Board’s decisions was transferred to WCAT.

[40] The appeal before WCAT took the form of an oral hearing at which the petitioner testified on June 2, 2003. The WCAT decision denying his appeal and confirming the Board’s decisions was rendered on June 18, 2003, and included the following description of the petitioner’s account of his 1993 and 2000 injuries:

An oral hearing was held on June 2, 2003 at which time the worker was assisted by his representative. The worker stated he was 34 years of age and that for the previous 16 years he had been working with the accident employer as a full-time technician maintaining amusement rides. This often required working in awkward positions as well as heavy lifting. The worker described his 1993 injury which occurred while they were taking down a ride. When a 2 x 4 brace support was removed the cables snapped on the gondola, allowing the gondola to come down and strike him on his left side injuring his left ankle and L4 vertebra. He stated he suffered a broken ankle and a compression at L4 which was accepted by the Board and for which he received a pension award.

Between the injuries of 1993 and 2000 the worker stated he had never fully recovered and that the pain had never fully abated. During that time he continued to have mild pain down both legs as well as ankle pain. He had been seeing his general practitioner every two months for his low back and ankle. This pain, while mild during this interval, worsened after the 2000 injury.

The worker stated that he had mentioned his low back complaints to his general practitioner in early September, but no formal record was made of it until he saw a specialist later in the month.

[41] In addition to the medical opinions which were before the Board’s officer in November 2000 and March 2001, the WCAT Vice Chair had before him a medical letter dated July 5, 2001, to Dr. R. Moccia from Dr. P.J. Kokan, an orthopaedic surgeon, a medical letter from Dr. Brian Hunt to Dr. Moccia dated October 17, 2002, and a second letter from Dr. Hunt dated February 11, 2003, a nuclear medicine scan report dated October 31, 2002, and an MRI report from an examination conducted on January 28, 2003.

[42] In the July 5, 2001, letter, Dr. Kokan described the petitioner’s symptoms as “lower back pain started getting worse five weeks after injury and the pain started radiating down the right leg into the foot.”

[43] Dr. Kokan noted the x-rays taken in September of 2000 showed “irregular upper plate of L4 probably due to old healed minor fracture of fourth lumbar vertebrae”. He also noted degeneration of L-3/4, L-4/5 and L-5-S1 disc areas, and from the January 25, 2001, CT scan he noted the degenerative changes of facet joints at L-3/4. Dr. Kokan attributed the petitioner’s symptoms to the back and right leg as “probably related to mild irritation of lumbar nerve root on the right side with no neurological deficit” and ascribed the degenerative condition in his low back to the 1993 injury “and aggravated by the injury of last year”.

[44] In his initial letter of October 17, 2002, Dr. Hunt described the petitioner’s injuries thus:

… he continues to have significant discomfort in the back and radiating into the legs. He experiences buttock pain which radiates down the anterior aspect of the thigh and then down to the right foot. He also has similar pain and episodes down the left side.

[45] On examination, Dr. Hunt found no localizing or lateralizing neurological abnormalities and while noting limitations in his straight leg raising did not attribute it to “nerve impingement or nerve root irritation”. He regarded the January 25, 2001 CT scan as revealing very minimal abnormalities with only some mild degenerative changes noted.

[46] Dr. Hunt ordered an MRI scan and a nuclear medicine scan primarily to investigate “any problems with the sacroiliac joints”, and also to look at the facet joints. Dr. Hunt suggested “at best [he] could determine” the petitioner’s problems were primarily muscle and ligamentous”, maybe with some joint involvement.

[47] The nuclear medicine scan report asserted that “increased accumulation of activity is present within the L-4/L-5 facet joint and within the anterior inferior aspect of the right sacroiliac joint” leading to the impression of: “Left L-4/L-5 facet and right anterior inferior sacroiliac joint arthropathies”.

[48] The MRI examination found “a mild diffuse disc bulging at L-2/3 level” and “herniation of disc into the superior endplate of L4 consistent with degenerative disc disease”, leading to an impression of “minimal degenerative disc disease as described. No significant spinal stenosis or neural foraminal narrowing.”

[49] Dr. Hunt wrote his second report of February 11, 2003, in light of the nuclear scan and the MRI examination. He noted the nuclear scan revealed the petitioner “has an L-4/5 anthropathy and some inflammation involving the right sacroiliac joint”. He reviewed the MRI and despite the failure of the radiologist to comment on it, he believed that there was “evidence of a significant bulging disc at the L-4/5 level to the left side, which is compromising the L-4 nerve root to a slight degree.”

[50] Dr. Hunt concluded that the petitioner’s pain was from “a combination of the facet joint arthropathy and the irritation of the left L-4 nerve root as it traverses this region”. He also concluded the petitioner’s exercises aggravated the sacroiliac joints and facet joints. He opined that the petitioner’s difficulties were contributed to by both his work related injuries and advised the petitioner “to be quite cautious regarding his activities to avoid irritating the nerve root and causing the significant left knee pain that he experiences which is undoubtedly a referred pain from the L4/5 level of the lumbar spine.”

THE JUNE 2003 WCAT DECISION

[51] In the June 2003 WCAT hearing, the petitioner took the position that it was not necessary to prove that the July 6, 2000, accident involved twisting his pelvis relative to his torso, but that there was nonetheless evidence that allowed that conclusion. The petitioner submitted to WCAT either that his more immediate injuries to his rib cage which limited his movement masked his low back pain until he returned to work, or that the physical demands of his work aggravated his back and leg symptoms, rendering the delay in reporting them understandable and not inconsistent with the July 6, 2000, accident being a contributing cause. The petitioner relied on Dr. Hunt’s February 11, 2003, report as establishing several possible mechanisms of injury attributable to the July 6, 2000, accident, including aggravation of the 1993 injuries.

[52] In his reasons and findings, the WCAT Vice Chair noted the need to prove the petitioner’s injury arose “out of and in the course of employment”, that is that “the evidence must warrant a conclusion that there was something in the employment that had causative significance in producing the injury”.

[53] The Vice Chair stated:

Having considered the evidence on file in written submission and from the oral hearing, I must deny the worker’s appeal. In order to accept continuing ongoing symptoms of pain I must determine the source of that pain, an injury that would cause that pain, and a relationship between the condition and the injuries suffered at work.

[54] After considering “various imaging reports”, Dr. Hershler’s reports and opinion, Dr. Hunt’s reports and opinion, and the medical advisor’s opinion, the Vice Chair stated:

Having considered the above, I cannot identify the source of the worker’s right low back and right leg pain and therefore cannot attribute it to either compensable injuries. … I am being asked to attribute the worker’s right low back pain and right foot pain to either of the compensable injuries. To do so, would be speculative on my part without objective medical evidence.

[55] In working through the evidence, the Vice Chair referred to the January 28, 2003, MRI scan report, the January 25, 2001, CT scan report, and the nuclear scan report. He discounted Dr. Hunt’s interpretation of the MRI as revealing a significant bulging at L-4/5, compromising the L-4 nerve root, as the report was silent on that and the CT report affirmatively stated there was no disc bulge and no nerve root impingement.

[56] The Vice Chair also discounted Dr. Hershler’s opinion that the accident caused the petitioner’s right sacroiliac joint to become misaligned, relying in part on Dr. Hunt’s view that the joint inflammation was the result of “the exercises the worker had undertaken” and in part on the medical advisor’s opinion that a twisting motion would not result in a misalignment of the SI joint and that the petitioner’s “symptom patterns” were inconsistent with the sacroiliac joint.”

[57] The Vice Chair also concluded that the L-4/5 arthropathy suggested by Dr. Hunt as the source of pain was not viable, relying on the medical officer’s opinion that the petitioner’s symptoms did not suggest L-5 nerve root involvement and therefore would not be a result of the reaggravation of the 1993 injury. The Vice Chair rejected the possibility that mild facetal osteoarthritis and minor defuse disc bulges at L-2/3 and L-3/4 were responsible for the symptoms as “it was the Board medical advisor’s opinion that the worker did not demonstrate findings consistent with these objective findings.”

[58] Following the 2003 WCAT Decision, on June 26, 2003, the petitioner sought a reconsideration of that decision from the Chief Appeal Commissioner.

[59] The issue on the application for reconsideration was whether the 2003 WCAT Decision was based on patently unreasonable findings of fact, or of law and policy. The petitioner also sought to adduce new evidence on that reconsideration application.

[60] In the meantime, after the 2003 WCAT Decision and before the reconsideration hearing, Dr. Hershler wrote a consultation report dated September 3, 2003, in which he reviewed Dr. Hunt’s February 11, 2003, report and in which he concluded as follows:

Based on the physical findings, the history and the recent imaging studies, it is my opinion that Giovanni has suffered a chronic injury to the soft tissues (muscles and ligaments) of the right sacroiliac joint. This predisposes the joint to mechanical mal-alignment depending on the nature of the forces involved. The fact that the MRI apparently does show evidence of an L4/5 facet joint arthropathy and the bulging disc provides a reason for the intermittent numbness that Giovanni experiences when he lays for too long on the right buttock or when he sits for prolonged periods.

At this stage there is no need for investigations or treatments. Giovanni has now available to him massage therapy and chiropractic for pain management and he is working in his regular duties. Pulsed signal therapy or pulsed electromagnetic field therapy remains an option that will both be able to reduce the inflammatory response in the sacroiliac joint and lessons some of the disc symptoms.

[61] Dr. Hershler also wrote a medical legal report dated September 16, 2003, to the same effect.

[62] On March 12, 2005, the plaintiff underwent a radiological and ultrasound examination which led to a report asserting the following:

Lumbar Spine and Oblique Views

There is moderate narrowing of the L4/5 – S1 disc spaces which appear slightly worse compared with the previous. The findings represent degenerative changes and/or herniation of these discs. The remaining disc spaces also appear minimally narrowed. There is deformity of the superior plate of L4, due to old trauma. This was shown on the previous and appears similar. The epophyseal joints and intravertebral foramina appear normal.

No other significant abnormality was demonstrated.

Right Hip

There is no evidence of fracture or dislocation. No bony soft tissue or any other abnormality is seen and the visualized joint is also within normal limits.

[63] In his affidavit sworn May 29, 2006, the petitioner deposed as follows in para. 22:

After the second accident, my only physical activity was returning to work on the graduated return to work, which brought on the onset of the lower back pain and the right foot pain. I had done nothing else to injure my back and my right foot, except have these two work-related accidents. I have never had a sports-related injury, a car accident, or any other event in my life before or after either accident that caused me pain to my lower back, or to my right leg and ankle when I returned to work in 2000.

[64] In a letter dated October 14, 2005, the petitioner’s employer, the Pacific National Exhibition wrote the following letter:

Please accept this letter as the employer’s submission relating to this workers’ appeal.

The Pacific National Exhibition (PNE) wishes for the WCAT panel to take the following points into account when making its decision with respect to this appeal:

1. Allow greater weight to the Accident Report dated December 15, 2000 submitted by Mr. Cianelli, in which he stated that “As I was heading towards the opening when the Gondola hit my back crushing me and kept its momentum pinning me and in turn rolling me around through the hole opening in an awkward position…” This statement confirms that Mr. Cianelli’s back was put under significant stress during this incident and any wage loss or health care costs attributed to his back injury should therefore be considered for compensation benefits under this claim. Apparently, this information was never given proper consideration initially.

2. The fact that Mr. Cianelli’s right leg and back symptoms developed post injury should not immediately disqualify their connection to the July 6, 2000 workplace accident. The WCAT panel should consider Mr. Cianelli’s physicians reports referring to ongoing right leg and back symptoms as arising out of the July 6, 2000 incident.

3. Mr. Cianelli did receive a disability pension award for his 1993 back injury/complaints.

Mr. Cianelli believes that the WCB did not do enough to fully understand the scope of the accident at the time and for that reason injury information provided by Mr. Cianelli, in his report of the incident, and physician’s reports were not given proper consideration.

The PNE would ask that you reconsider the above information as we believe him as to his ongoing symptoms and he continues to be an excellent worker.

THE JUNE 2006 WCAT RECONSIDERATION DECISION

[65] As to WCAT’s authority to reconsider its own decision, the Vice Chair comprising the panel held as follows:

Reconsiderations of decisions of the tribunal on the grounds of new evidence, are authorized by s. 256 of the Act. WCAT also has the authority to reconsider one of its decisions and possibly set it aside on the common law ground of an error of law going to jurisdiction, including a breach of natural justice. … A tribunal’s common law authority to set aside one of its decisions on the basis of jurisdictional error was confirmed by the British Columbia Court of Appeal in Powell Estate v. Worker’s Compensation Board, 2003 BCCA 470 …

[66] The Vice Chair held that the standard of review of patent unreasonableness was applicable to her reconsideration of the June 18, 2003, decision insofar as it was challenged on the common-law ground of jurisdictional error. She noted that with the enactment of the Administrative Tribunals Act, S.B.C. 2004, c. 45 (ATA) the common law respecting judicial review was codified and s. 58 of that statute, made applicable to the WCAT proceeding by s. 245.1 of the Workers Compensation Act, R.S.B.C. 1996, c. 492 (“WCA”) provides as follows:

58(1) If the tribunal's enabling Act contains 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,

(d) fails to take statutory requirements into account.

[67] The panel member considered the meaning of patent unreasonableness in light of Speckling v. British Columbia (Workers’ Compensation Board), 2005 BCCA 80 at para. 33, 46 B.C.L.R. (4^th) 77 [Speckling] where the court held:

“Patently unreasonable” means openly, clearly, evidently unreasonable: Canada (Director of Investigation and Research) v. Southam Inc. [1997] 1 S.C.R. 748.

A decision based on no evidence is patently unreasonable, but a decision based on insufficient evidence is not: Douglas Aircraft Co. of Canada Ltd. v. McConnell, [1980] 1 S.C.R. 245 [Douglas], and Board of Education for the City of Toronto v. Ontario Secondary School Teachers’ Federation et al (1997), 144 D.L.R. (4th) 385 (S.C.C.).

[68] The Vice Chair considered the words of Estey J. in Douglas:

Similarly, a decision without any evidence whatever in support is reviewable as being arbitrary; but on the other hand, insufficiency of evidence in the sense of appellate review is not jurisdictional, and while it may have at one time have amounted to an error on the face of the record, in present day law and practice such error falls within the operational area of the statutory board, is included in the cryptic statement that the board has the right to be wrong within its jurisdiction, and hence is free from judicial review.

[69] The Vice Chair also considered the decision of Cory J. for the court in Board of Education for the City of Toronto v. Ontario Secondary School Teachers’ Federation et al (1997) 144 DLR (4th) 385 (S.C.C.) where he said:

It must be remembered that even if a court disagrees with the way in which the tribunal has weighed the evidence and reached its conclusions, it can only substitute its opinion for that of the tribunal where the evidence viewed reasonably is incapable of supporting the tribunal’s findings.

[70] In finding the standard of review applicable in the 2006 Reconsideration Decision to be patently unreasonable, the Vice Chair, reasoned as follows:

Under s. 58(2)(a) of the ATA the standard of patently unreasonable is applied to a finding of fact, law or discretion when it is a matter over which the tribunal has jurisdiction. The matter whether the Worker’s Compensation claim should be accepted for symptoms in the worker’s lower back and foot is one over which the tribunal has exclusive jurisdiction. Therefore the test to be applied is whether the original panel’s decision not to accept the worker’s symptoms under either of his two compensation claims contained findings of fact, law or discretion which are patently unreasonable.

[71] The Vice Chair’s determination corresponds to the WCAT Manual of Rules of Practice and Procedure (“MRPP”) which asserts, at item 15 – 24, that:

WCAT will apply the same standards of review to reconsiderations on common law grounds as will be applied by the court on judicial review (see item 15.32).

[72] Item 15.32, Standards of Review, states in part:

The Court will not interfere in a final WCAT decision unless threshold grounds are met. There are three possible standards of review (s. 58(2), ATA):

(a) patently unreasonable for a finding of fact or law or an exercise of discretion in respect of a matter for which WCAT has exclusive jurisdiction under the privative clause (see s. 254 WCA).

…

[73] In connection with the Vice Chair’s selection of a standard of review, counsel for WCAT submitted on the basis of Slawik v. Manitoba (Worker’s Compensation Board), 2006 MBCA 55 that it “may be subject to the standard of correctness” in relation to the issue of jurisdictional error. Counsel submitted, however, that how the reconsideration panel applied their standard may itself be amenable to deference “given that the jurisdictional error for which the reconsideration was being conducted involved assessing the original panel’s treatment of the evidence, i.e. making findings of fact – a matter the legislature intended to be within WCAT’s exclusive jurisdiction and expertise.”

[74] In her substantive findings in relation to the plaintiff’s submission that the June 2003 decision made a jurisdictional error, the Vice Chair noted that to constitute jurisdictional error, the impugned determination must be patently unreasonable.

[75] She described the test articulated by the original panel that “in order to accept continuing ongoing symptoms of pain under the claim, the panel must determine the source of that pain, and injury that would cause the pain and a relationship between the condition and the injuries suffered at work” as “not the usual way to express the elements of a finding of compensable injury or compensable consequences of an injury …”.

[76] She noted however that those elements were necessary to finding the continuing symptoms were compensable and the original panel looked at several suggested sources of the pain to determine “whether there was an injury to the lower back overlooked at the time of the July 2000 injury or manifesting later in the worker’s recovery from the July 2000 incident.”

[77] The Vice Chair noted that there was a conflict in the medical evidence over the source of the worker’s pain, and accordingly, she concluded it was reasonable for the original panel member “to instruct himself in the way that he did”. The medical evidence suggested several sources for the pain and the original panel member reviewed each of them in his decision.

[78] Specifically, the Vice Chair reasoned that if the symptoms complained of were not the direct result of an injury occurring at the time of the original incident, they would have to be the manifestation of a compensable consequence of the injury and to determine that, it would be necessary to consider “the anatomic or physiological source of the pain – that is the diagnosis”.

[79] The Vice Chair acknowledged that the original panel’s instructions to himself on that point were not “completely correct” but frequently it is necessary “to determine what the diagnosis is, that is, the source of the pain” to know what the condition or injury under consideration is. In other words, it was the Vice Chair’s view that determining the source of the pain (or the diagnosis) is conducive to a determination whether the mechanism of injury caused that condition. She noted that “the notion of a twisting of the worker’s back has not been accepted by the Board.” She reasoned that since that mechanism of injury was relied on by some of the worker’s physicians, it weakens their opinions as a result. She asserted that “the most useful and effective medical evidence is medical evidence that takes the accepted mechanism of injury into account and does not take into account another version of the mechanism of injury which has not been accepted.” As far as Dr. Hunt’s opinion was concerned, the Vice Chair noted it was not supported by a CT scan and that the MRI was silent on the issue of a “left sided disc bulge”. She noted that the original panel accepted the Board medical advisor’s opinion that the worker’s description of right heel pain was not consistent with L-5 nerve root involvement and that that also ruled out the theory of L-4/5 arthropathy causing L-5 nerve root compromise. She also noted that the original panel accepted the Board medical advisor’s opinion that the worker’s objective findings were not consistent with the mild facetal osteoarthritis and minor disc bulges at L-2/3 and L-3/4. The Vice Chair noted that the original panel member chose to accept the Board medical advisor’s opinion over that of Dr. Hershler and that it was open for him to do so. She noted “in the case of error of fact, patently unreasonable means that there is no evidence to support a finding of fact.”

[80] She concluded:

In this case, the original panel, like the case manager, did not accept Dr. Hershler’s statement that the worker’s injury in July 2000 included a twisting of his back. Also, the board medical advisor had noted that the worker was not suffering from symptoms which would suggest a sacroiliac joint mal-alignment as diagnosed by Dr. Hershler. The panel, thus, had evidence upon which to rely to reject the conclusion that the worker’s ongoing symptoms resulted from sacroiliac joint mal-alignment caused by a twisting as part of the July 2000 injury. The panel did have conflicting medical evidence and the panel was entitled to accept some of that evidence and not other parts of it. The panel chose to accept the board medical advisor’s opinion.

[81] The Vice Chair then went on to consider the issue of new evidence in light of s. 256(3) of the WCA which reads as follows:

(3) On receipt of an application under subsection (2), the chair may refer the decision to the appeal tribunal for reconsideration if the chair is satisfied that the evidence referred to in the application

(a) is substantial and material to the decision, and

(b) did not exist at the time of the appeal hearing or did exist at that time but was not discovered and could not through the exercise of reasonable diligence have been discovered.

[82] The additional evidence sought to be admitted before the reconsideration panel consisted of a 2005 medical legal report from Dr. Moccia which “reiterates the twisting mechanism of injury … which was rejected by the original panel”, the July 2001 consultation report from Dr. Kokan, a September 3, 2003, consultation report and September 16, 2003, medical legal opinion from Dr. Hershler, which the Vice Chair described as “reiterating his earlier opinion concerning the injury to the sacroiliac joints”, and a March 12, 2005, imaging report which “deals with a deterioration in the worker’s condition and does not address the causative issue which was before the panel.” In the result, after applying the provisions of s. 256(3) the Vice Chair declined to admit the new evidence on the basis that, in the case of the March 12, 2005, imaging report, it was not “substantial and material” to the decision, and in relation to the balance of the evidence that it was not new in the sense contemplated by s. 256(3).

ANALYSIS AND CONCLUSION

1. The Standard of Review

[83] Section 245.1 of the WCA states that certain sections, including ss. 55 – 58, of the ATA apply to the WCAT. As discussed above, s. 58 of the ATA provides that the standard of review of patent unreasonableness applies to certain decisions of the WCAT. Section 58 of the ATA provides as follows:

58(1) If the tribunal’s enabling Act contains 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)

(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,

(d) fails to take statutory requirements into account.

[84] Counsel for the WCAT submitted that notwithstanding s. 58 of the ATA the court is still obliged to conduct an analysis of the appropriate standard of review according to the “functional and pragmatic test” mandated by the Supreme Court of Canada most recently in Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226.

[85] In support of that submission, counsel for WCAT referred to Speckling, supra, in which Levine J.A. for the court wrote as follows in paragraph 15:

In this case, all of the parties agreed that the correct standard of review of the two Appeal Decisions was “patent unreasonableness” and that was the standard applied by the chambers judge. None of the parties or the chambers judge, however, carried out the analysis mandated by the Supreme Court of Canada in Dr. Q. Chief Justice McLachlin put it this way (at para. 21):

In a case of judicial review such as this, the Court applies the pragmatic and functional approach that was established by this Court in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, and gained ascendancy in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, and Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982...In every case where a statute delegates power to an administrative decision-maker, the reviewing judge must begin by determining the standard of review on the pragmatic and functional approach...

(underlining in original)

[86] After concluding that the functional and pragmatic analysis mandated the patently unreasonable standard of review in the circumstances of that case, Justice Levine went further at paragraph 32 as follows:

I note that on December 3, 2004, s. 182 of the Administrative Tribunals Act, S.B.C. 2004, c. 45 was brought into force, adding s. 245.1 to the Act, which made s. 58 of the Administrative Tribunals Act applicable to the Workers Compensation Appeal Tribunal (B.C. Reg. 516/2004). In written submissions, the parties all took the position that the Administrative Tribunals Act does not apply to this appeal, and I proceed on that basis.

[87] In a more recent decision, British Columbia v. Bolster, 2005 BCCA 65 [Bolster], Levine J.A. held as follows in paragraph 112:

In my opinion, the standard of review a court adopts on a judicial review proceeding is not a “right” that “belongs to” or is “in the control of” any party to the proceeding. As McLachlin C.J.C. pointed out in Dr. Q, it is the process a superior court follows to carry out its constitutional responsibility for the rule of law in reviewing the decisions of statutory tribunals. The standard of review in a particular case is determined by the court as part of the judicial review proceeding, at common law by employing a principled application of the pragmatic and functional approach, and under the Act by interpreting and applying s. 59. Previous determinations of the standard of review in similar cases, especially at common law, may or may not apply, as “[t]he pragmatic and functional approach demands a more nuanced analysis based on consideration of a number of factors. This approach applies whenever a court reviews the decision of an administrative body” (Dr. Q at para. 25). Thus, no party can claim a “right” in a particular standard of review.

(underlining in original)

[88] In my view, given the context of the issue being resolved by the court in Bolster: that s. 59 of the ATA (which deals with the standard of review when there is no privative clause) applies immediately rather than prospectively “because it does not interfere with any vested right”, and because the court applied s. 59 without conducting a functional and pragmatic analysis, it follows that the applicability of s. 58 to WCAT obviates the need for a functional and pragmatic analysis in determining the standard of review at this stage. The standard of review is patent unreasonableness.

[89] The standard of correctness, submitted by the petitioner to be the appropriate standard of review, would only apply in circumstances where the alleged error of jurisdiction related generally to a provision which confers jurisdiction: in other words, where the issue is whether the tribunal had the authority to act or not. Such an asserted jurisdictional error is classified as “narrow” and does not attract deference and is therefore subject to a correctness standard of review.

[90] On the other hand, the ATA mandates the highest level of deference to WCAT decisions which fall within the scope of the WCA’s privative clauses, and hence its area of expertise. Asserted jurisdictional errors of this category are referred to as “broad” in nature.

[91] Distinguishing between “broad” and “narrow” jurisdictional errors requires an application of the functional and pragmatic analysis. See United Brotherhood of Carpenters and Joiners of America Local 527 v. British Columbia (Labour Relations Board), 2006 BCCA 364, 55 B.C.L.R. (4th) 325 [United Brotherhood of Carpenters] and University of British Columbia v. University of British Columbia Faculty Association, 2007 BCCA 201.

[92] Under the WCA, the privative clause governing the Board is set forth in s. 96(1) as follows:

… the Board has exclusive jurisdiction to inquire into, hear and determine all matters and questions of fact and law arising under this Part, and the action or decision of the Board on them is final and conclusive and is not open to question or review in any court … and, without restricting the generality of the foregoing,, the Board has exclusive jurisdiction to inquire into, hear and determine

(a) the question whether an injury has arisen out of or in the course of an employment within the scope of this Part;

…

[93] WCAT is governed by ss. 250(1) and 254. Those sections read as follows:

250 (1) The appeal tribunal may consider all questions of fact and law arising in an appeal, but is not bound by legal precedent.

…

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;

(d) all other matters for which the Lieutenant Governor in Council by regulation permits an appeal to the appeal tribunal under this Part.

[94] The sections of the WCA applicable to a determination of causation are ss. 5(1) and 250(4). Those sections read as follows:

5(1) Where, in an industry within the scope of this Part, personal injury or death arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part must be paid by the Board out of the accident fund.

…

250(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.

[95] In United Brotherhood of Carpenters, supra, which considered the jurisdiction of the British Columbia Labour Relations Board with respect to s. 18(4) of the Labour Relations Code, R.S.B.C. 1996 c. 244, Levine J.A. held as follows at paragraphs 47 and 48:

Applying the pragmatic and functional approach to the determination of the Board’s jurisdiction with respect to the interpretation of s. 18(4)(b) requires reference to the four factors of: the presence or absence of a privative clause; the tribunal’s relative expertise; the purpose of the Act as a whole and the provision in particular; and the nature of the problem: see Ryan at para. 27.

The chambers judge referred to each of these factors, and correctly concluded that the Board had the exclusive jurisdiction to interpret s. 18(4)(b) and, therefore, the standard of review was patent unreasonableness.

[96] As I see it, the question before me is akin to that before the court in United Brotherhood of Carpenters, supra. It is clear, in the case at bar, that there is a privative clause granting WCAT exclusive jurisdiction to make a determination of fact or law in relation to its area of expertise, and to deal with issues of the causation, nature, and extent of workplace injuries. That is recognized by the applicability of s. 58 of the ATA, and has been accepted by the court in a number of different decisions including Basura v. British Columbia (Workers’ Compensation Board) et al, 2005 BCSC 407; Albert v. British Columbia (Workers’ Compensation Board), 2006 BCSC 838; Wu v. British Columbia (Workers’ Compensation Board), 2005 BCSC 1449; and Wyant v. British Columbia (Workers’ Compensation Board), 2006 BCSC 680.

[97] In dealing with the question whether the WCA and the specific provisions at issue support the impugned decisions as fitting within the scope of the privative clauses, it is helpful to consider the purpose of the WCA as described by Sopinka J. in Pasiechnyk v. Saskatchewan (Workers’ Compensation Board) [1997] 2 S.C.R. 890 in para. 24 as follows:

Workers’ Compensation is a system of compulsory no-fault mutual insurance administered by the state.

[98] In para. 26 Sopinka J. went on to say as follows:

The importance of the historic trade-off has been recognized by the courts. In Reference re Validity of Sections 32 and 34 of the Workers’ Compensation Act, 1983 (1987), 44 D.L.R. (4th) 501 (Nfld. C.A.), Goodridge C.J. compared the advantages of workers’ compensation against its principal disadvantage: benefits that are paid immediately, whether or not the employer is solvent, and without the costs and uncertainties inherent in the tort system; however, there may be some who would recover more from a tort action than they would under the Act. Goodridge C.J. concluded at p. 524:

While there may be those who would receive less under the Act than otherwise, when the structure is viewed in total, this is but a negative feature of an otherwise positive plan and does not warrant the condemnation of the legislation that makes it possible.

I would add that this so-called negative feature is a necessary feature. The bar to actions against employers is central to the workers’ compensation scheme as Meredith conceived of it: it is the other half of the trade-off. It would be unfair to allow actions to proceed against employers where there was a chance of the injured worker’s obtaining greater compensation, and yet still to force employers to contribute to a no-fault insurance scheme.

[99] In this case, the centre of the dispute lies in the impugned decision’s application of s. 5(1) of the WCA. I accept the submission of the tribunal that this section lies:

… at the heart of the board’s exclusive jurisdiction to determine entitlement to compensation and, thus, WCAT’s exclusive jurisdiction to hear appeals on these issues and substitute its own decision for that of the board.

[100] I conclude therefore that the decision at the core of this petition, the June 2003 WCAT Decision, represents an exercise of authority conferred on WCAT within the scope of the WCA and the privative clauses, and hence is subject to a standard of review of patent unreasonableness, rather than correctness as would be the case if the asserted error related to a provision which infers jurisdiction.

[101] So far as the March 2006 and June 2006 decisions are concerned, as they too revolve around the application of s. 5(1) they similarly engage a standard of review of patent unreasonableness.

2. The Application of the Patently Unreasonable Test to the Decisions at Issue

[102] Under s. 58 of the WCA the standard of review of patent unreasonableness applies equally to “a finding of fact or law”. What is at issue before me is, ultimately, whether the 2003 WCAT Decision contained an error that vitiated the tribunal’s jurisdiction to rule as it did. The jurisdictional error at issue before the June 2006 reconsideration panel was the original panel’s articulation of the test to be applied in considering whether the petitioner’s complaints of low back and right leg pain were caused by the accident.

[103] In my opinion, the test imposed by the original panel was patently unreasonable as it placed a burden on the petitioner, not to prove the July 6, 2000, injury was causative of the symptoms at issue, but to identify the specific source or sources of those symptoms. I conclude that to do so was an error of law which went to the original panel’s jurisdiction to make the determination which was made. It is clear from his reasons that the original panel member equated an inability to prove a specific source for the petitioner’s pain symptoms with an inability to prove causation. A finding that the evidence failed to establish a specific source for the pain symptoms may be of assistance in arriving at a conclusion that causation has not been made out, but to convert such a finding into a dispositive conclusion without regard for all the surrounding evidence, the sequence of events, and several other potential available conclusions has the hallmarks of jurisdictional error.

[104] As earlier noted, s. 250(4) of the WCA mandates the WCAT to resolve an issue in a manner that favours the worker where the evidence supporting different findings on an issue is evenly weighted.

[105] I conclude that by adopting a test that precluded an inquiry beyond the evidence of the specific sources of the petitioner’s pain symptoms and thereby preventing weighing in the balance, for example, the evidence that there was no other potentially causative event, that the rigours of the petitioner’s work may have exacerbated latent symptoms, and that even the Board medical advisor diagnosed the petitioner with mechanical back strain, the original panel member patently failed to address the proper test to establish causation mandated by the WCA.

[106] So far as the reconsideration decision is concerned, I conclude that it does not rehabilitate the jurisdictional error of the original decision. In her decision, the reconsideration panel member described the original panel member’s approach as “not the usual way to express the elements of a finding of compensable injury or compensable consequences of an injury”, as “not completely correct … in the abstract”, and as “not completely correct [but] … reasonable in context and certainly not patently unreasonable.”

[107] Having made those determinations, the reconsideration panel member went on to review and analyze the original panel’s assessment of the evidence, in light of the proposition that “a decision based on no evidence is patently unreasonable, but a decision based on insufficient evidence is not”, concluding that there was no patently unreasonable finding of fact, justifying a different conclusion.

[108] As I read the reconsideration decision, it does not correct the original panel’s jurisdictional error in relation to the application of the legal test for establishing causation. Because of her conclusion that the standard of review governing a reconsideration decision is patent unreasonableness, and having found no jurisdictional error of law, the reconsideration panel member did not conduct her own analysis of the evidence, or substitute her opinion for that of the original panel. Thus, the jurisdictional error was perpetuated through the reconsideration decision.

[109] Insofar as the March 06 WCAT Decision is concerned, it, of course, rests upon the substantive determination of whether the petitioner’s symptoms were caused by his workplace accidents and I can see no patent unreasonableness in the decision that the petitioner “is not entitled to a reopening of either the 1993 or 2000 claim for low back and right leg symptoms” until and unless “the worker is successful in his application for a reconsideration of the June 18, 2003 WCAT decision.”

[110] In my view, the appropriate disposition of this petition is to quash the 2003 WCAT Decision and the 2006 Reconsideration Decision and to remit the matter to WCAT for a hearing pursuant to ss. 5 and 6 of the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 which read as follows:

5 (1) On an application for judicial review in relation to the exercise, refusal to exercise, or purported exercise of a statutory power of decision, the court may direct the tribunal whose act or omission is the subject matter of the application to reconsider and determine, either generally or in respect of a specified matter, the whole or any part of a matter to which the application relates.

(2) In giving a direction under subsection (1), the court must

(a) advise the tribunal of its reasons, and

(b) give it any directions that the court thinks appropriate for the reconsideration or otherwise of the whole or any part of the matter that is referred back for reconsideration.

6 In reconsidering a matter referred back to it under section 5, the tribunal must have regard to the court's reasons for giving the direction and to the court's directions.

[111] In finding jurisdictional error in the present case, I have found a clearly wrong formulation of the test for determining causation. By articulating a test that was contingent on determining the specific sources of the plaintiff’s symptoms, rather than one which encompassed, and permitted him to weigh, all the relevant evidence in considering a range of reasonable conclusions, the original panel member failed to apply the WCA as he was mandated to do.

[112] There is no reason why, given the tribunal’s expertise, that this matter should not be remitted to it for reconsideration in light of these reasons for judgment. Because of the lapse of time between the March 06 WCAT Decision and the 2006 Reconsideration Decision, and the additional passage of time to pursue this application, I direct that the tribunal reconsidering this matter do so in light of all the current medical evidence, not just that placed before the original panel in June 2003.

[113] I am satisfied on the basis of Lang v. British Columbia (Superintendent of Motor Vehicles), 2005 BCCA 244, 43 B.C.L.R. (4th) 65 that costs ought not to be awarded, save for exceptional cases where there is “misconduct or perversity in the proceeding before the tribunal” or “the tribunal argues the merits of a judicial review application rather than its own jurisdiction.” Those exceptions do not exist in the present case and accordingly I decline to order costs.

“A.F. Cullen J.”
The Honourable Mr. Justice A.F. Cullen

Citation:	*Cianelli v. Workers' Compensation Board of B.C.,*
	2007 BCSC 862