2007 BCSC 1005 Daniel v. British Columbia (Workers' Compensation Appeal Tribunal)

Before: The Honourable Madam Justice Bennett

Reasons for Judgment

Counsel for the Petitioner:	V.A. Ishkanian
Counsel for the Respondent:	V.A. Pylypchuk
Date and Place of Trial/Hearing:	June 26-29, 2007
	Vancouver, B.C.

[1] Ms. Daniel (“the worker”) brings an application for judicial review to contest a number of findings of the Workers’ Compensation Appeal Tribunal (“WCAT”). She seeks to have two decisions of WCAT quashed and remitted back to WCAT for a new hearing. The first decision is from what I will refer to as the “Original Panel”, which decided three appeals referred to as Appeal “A”, “B” and “H”. I will provide more detail about these decisions below. The worker also seeks to have the decision of the Reconsideration Panel (who reconsidered the decision of the Original Panel) quashed.

[2] For the reasons below, I have concluded that the two decisions should be quashed and I remit the matter back to WCAT for a new hearing.

THE FACTS

[3] The worker was employed at Tofino Consumer’s Co-operative Association in the meat department. The scope of her employment and nature of her employment were issues before WCAT.

[4] The worker was injured on August 28, 1999. She fell while at work and injured her right shoulder, left knee and lower back. She filed a claim for Workers’ Compensation Benefits, which was accepted. She was referred to a Work Conditioning Program and tried to continue working. She stopped working on September 4, 1999, due to the right shoulder injury.

[5] The worker was paid wage loss benefits and health care benefits. The long-term wage loss was based on her earnings during the three-month period prior to her date of injury. At this time she had been working full-time hours, five days a week, and her initial wage rate of $580.00 per week was based on these hours.

[6] In November 1999, the worker returned to work for two weeks on a part-time basis, but could not continue due to the injury.

[7] On January 26, 2000, the worker was referred to Dr. Leete, an orthopaedic surgeon, as her complaints regarding her shoulder were not subsiding. On March 16, 2000, the Workers’ Compensation Board (“the Board”) offered the worker a work conditioning program, but she did not participate as Dr. Leete advised against it, given her medical condition.

[8] In June 2000, Dr. Leete recommended an MRI, which was done in August 2000. The MRI showed a marked impingement in her shoulder and a possible tear to her rotator cuff. Surgery was recommended. The surgery was conducted on October 10, 2000. Physiotherapy post-surgery was recommended, however, funding for physiotherapy from the Board was delayed until early 2001, which slowed recovery. Part of the difficulty was because the worker lives in Tofino and there was no physiotherapist in Tofino at the time.

[9] The worker was offered a work conditioning program in April 2001; however, her family physician did not think she could undertake such a program at that time.

[10] On May 29, 2001, the Board issued a letter advising the worker that in the Board’s opinion, she had “plateaued”. As a result of this decision, she no longer received wage loss benefits, but instead received continuity benefits pending her assessment for a disability pension.

[11] She was improving until she attended an Occupational Rehabilitation assessment in Nanaimo. As a result of the testing, which required her to lift relatively heavy weights, her shoulder injury flared. Further physiotherapy was undertaken.

[12] The worker also attended a Vocational Rehabilitation Consultant (VRC), Mr. Linc Johnson, at the request of the Board. That consultant made the following findings:

Although Ms. Daniel has not yet been assessed for permanent functional impairment, based on treatment program results, she is unable to return to her pre-injury occupation. The Vocational Rehabilitation Consultant feels she could physically handle part-time LIMITED strength employment. Based on information available on the claim file, I would agree with this opinion.

Considering Ms. Daniel’s age, time since injury, and geographic location, there are few opportunities available within her physical abilities. She would require Board assistance by way of direct placement with an accommodating employer. A work assessment and potential training on the job program would be required. If successful, Ms. Daniel’s employment potential could be determined by the actual position secured. If the Board is unable to find a suitable employer, then I believe Ms. Daniel is unemployable in today’s labour market.

[13] On June 26, 2002, the worker received a letter from the Board’s VRC, Mr. Gerber, who said the following:

Please note that the Vocational Rehabilitation Services department is willing to consider further financial assistance towards your return to suitable work in the form of benefits for a work assessment or training on the job program with an interested employer. Also note that the department is willing to consider assisting you with moving expenses, if you find suitable permanent employment in another locale. Please note that you are not required to relocate, but our recommendations regarding projected loss of earnings is based on the availability of these benefits. If you have an employment possibility, now or in the future, where any of these benefits would assist your return to work, you may contact Vocational Rehabilitation Services in the Nanaimo office to discuss a specific plan.

[14] On June 26, 2002, Mr. Gerber wrote in the claim log the following regarding the Linc Johnson report:

I differ with the implication contained in his final statement that it is ultimately the Board’s responsibility to find suitable work for Ms. Daniel in Tofino.

The Board does not have the resources to take ultimate responsibility for finding her a new job. Although she moved to Tofino in 1976, is approaching 58 years of age and has no desire to relocate, I would consider her to be eligible for various vocational rehabilitation benefits to help her get placed in a suitable job. These would potentially include work assessment, training on the job and, if needed, moving expenses.

[15] He then did a survey of wages of available jobs within the worker’s limited ability to work. He contacted six hotels to obtain wage rates for a front desk worker. The hotels he contacted were in Nanaimo and Victoria. He did not contact any hotels in Tofino. The average salary was $479.66 per week in 2000 dollars. He also contacted car rental businesses in Victoria and Nanaimo and concluded that an average wage was $448.00 per week in 2000 dollars. He then recommended that her projected loss of earnings be set to half the average of the above-mentioned amounts to take into account that she could only work part-time.

[16] As a result of his conclusions, Mr. Gerber sent a letter to the worker on June 27, 2002, advising her that her continuity benefits would be reduced accordingly. He concluded that she was capable of earning $256.18 per week. As a result, her net weekly continuity benefits were reduced to $253.50 from a gross weekly benefit of $594.18.

[17] The worker appealed this decision to the Review Board, and this is one of the decisions under judicial review. This is referred to as Appeal “A”.

[18] The Board continued to pay full income continuity benefits in error for the month of August. Once it realized its error, it sent a letter to the worker on September 10, 2002, declaring the overpayment and an intention to collect the overpayment by deducting payments from her benefits.

[19] The worker appealed this decision to the Review Board, and this is also one of the decisions under judicial review. This is referred to as Appeal “B”.

[20] The worker’s earnings were reassessed and instead of the three month average based on her income just prior to her accident, the Board decided to use her 1999 earnings. In 1999, she earned $13,938.03. This period also includes four months of disability, which was not taken into account when assessing her twelve month income. The $6,522.47 that she received from WCB as wage loss benefits were not included in the calculation. The Board did not use her income for the twelve months pre-injury.

[21] The worker was advised in February 2003 of the decision to “deem” her earnings at $1,221.16 per month and her net continuity benefits at $36.26 per month. The VRC concluded that the functional disability award would be $154.19 per month, which was higher (WCB pays the higher of the two calculations), and recommended her pension be based on a functional award.

[22] The worker appealed the decision to “deem” her wages and this decision is subject to judicial review. This is part of Appeal “H”.

[23] On March 6, 2003, the worker was advised that she had been awarded a permanent partial disability pension, which was based on the twelve month earnings. The pension entitlement was $236.71 per month. The worker also appealed this decision and this decision is subject to judicial review. This is also part of Appeal “H”.

[24] On March 3, 2003, a revised appeal structure came into existence and the Review Board became an internal level of review and WCAT was the external final level of review.

[25] The worker requested that the Review Division review both the February 28, 2003 VRC decision and the March 6, 2003 Disability Awards Claims Adjuster decision. In a decision dated January 21, 2004, the Review decision confirmed the Board’s decision. There were two issues before the Review Division. First, there was the decision of the VRC to adjust future income continuity benefits to reflect the pension wage rate established on the twelve month period. The Review Division found this issue to be moot as no future income continuity benefits were to be made under the adjusted rate because the pension payments had commenced immediately. The second issue was the wage rate established for pension purposes. The Review Division found the twelve month period to appropriately reflect the part-time nature of the worker’s pre-injury employment and to best represent her average earnings and earning capacity at the time of the injury. The Review Division found that the worker was capable of some sedentary employment and awarded the pension on a permanent functional impairment (PFI) instead of loss of earnings (LOE). As noted, the Board pays the higher of the two calculations.

[26] The worker appealed the January 21, 2004 Review Division decision which contained both the February 28, 2003 and the March 6, 2003 decision to WCAT (Appeal “H”). The two outstanding appeals to the Review Board (Appeals A & B), were continued as WCAT appeals as a result of the March 3, 2003 legislative change and all three appeals were heard together by WCAT on September 24, 2004. WCAT permitted an oral hearing. (Appeals B, C, D, E, F, & G are not before this Court).

[27] In the meantime, the worker was referred to an orthopaedic surgeon in Vancouver, Dr. Regan. He provided an opinion that she continued to suffer from an impingement and acromioclavicular arthritis. He advised that surgery only stood a 60% chance of improving her condition.

[28] The worker also commissioned a functional capacity evaluation which was completed on April 2004. The rehabilitation specialist, Ms. Quastel, concluded that the worker was competitively unemployable.

[29] The worker submitted four signed letters regarding her employment at Tofino Consumer’s Co-operative Association. Two were from former supervisors, one was from a co-worker and one was from her partner who had seen her working. These letters set out her duties, included learning the trade of meat cutting.

[30] The employer filed a letter from Dean Shropshire who was the worker’s supervisor commencing August 15 1999. Mr. Shropshire wrote that the worker was working 40 hours plus per week, but was not considered a full-time employee. He said that she was hired as a part-time meat wrapper and would have continued in that capacity. He wrote that because the business was tourist driven, her hours would have been reduced to 32 hours in September and down to 25 hours per week by February. He wrote that he was the only full-time employee.

[31] The worker sought to cross-examine Mr. Shropshire; however, the employer did not produce him, nor did the Board subpoena him.

[32] The worker testified and when questioned about the veracity of Dean Shropshire’s letter, she said that it was a lie.

[33] On October 20, 2004, WCAT denied all three appeals. The issues before the Original Panel were whether the Board: a) properly reduced the worker’s income continuity benefits; b) appropriately declared an overpayment; and, c) appropriately calculated the disability pension. The last issue contained two sub-issues: first, whether the Board selected the appropriate long-term wage rate and second, whether the Board was correct in finding that a pension on a PFI and not an LOE basis was appropriate in the circumstances.

[34] The following is a summary of the Original WCAT decision.

[35] WCAT found that income continuity benefits are part of vocational rehabilitation under s. 16 of the Workers Compensation Act, R.S.B.C. 1996, c. 492 and are discretionary. Policy item #89.12 permits the Board to reduce income continuity benefits based on the result of the employability assessment. Here, WCAT found that the employability assessment concluded that the worker had long-term earning capacity in sedentary employment. The Original Panel found the worker considered herself unemployable and thus made no effort to participate in the vocational rehabilitation to secure a sedentary position. The Original Panel concluded that the Board properly reduced the income continuity benefit to reflect what, according to the Employability Assessment, the worker could have earned had she made the effort. With regard to the overpayment, the Original Panel concluded that the overpayment was a result of administrative error and thus recoverable under policy item #48.41. The Original Panel found that the long-term wage rate for pension purposes was properly established. The Original Panel found as a fact that the worker was a part-time employee and she would be subject to lay-off in the slow season. As a result of this finding, the Original Panel concluded that the twelve month period selected by the Board best reflected the long term earnings pattern of the worker, as opposed to the three months of earnings immediately preceding the injury and thus the appropriate pension wage rate. With regard to the loss of earnings pension, the Original Panel concluded that the worker was employable in a sedentary position and as any loss of earnings would not be greater than the loss of function award, the pension award on the PFI was appropriate.

[36] The Original Panel found the evidence of the worker credible. The Original Panel also accepted the letter from Dean Shropshire over the evidence of the worker. The worker sought judicial review of this decision as well as a reconsideration hearing by WCAT.

[37] In the meantime, after the Original Panel rendered its decision, the Board considered Dr. Regan’s suggestion for surgery and approved surgery on November 24, 2004. Dr. Regan performed the surgery on December 16, 2004. Dr. Regan had to redo the surgery that was done by Dr. Leete as it had not worked. He also operated on the clavicle to alleviate the arthritis that had developed in the acromio-clavicular joint. On December 20, 2004, Dr. Regan prepared a report where he indicated that the worker was doing well. On March 11, 2005, Dr. Regan reported that the worker had regained 95% of the motion in her shoulder. He felt she could return to work 20 weeks post-surgery.

[38] After the surgery, the Board issued decision letters. On January 5, 2005, the Board advised the worker that she would not receive wage loss benefits for the time she was disabled due to the surgery because it was her personal choice not to work, which was based on the WCAT finding. This decision was reviewed and upheld on the same basis. This decision was also appealed to WCAT. WCAT refused to suspend the appeal until after the reconsideration panel had reconsidered the Original Panel’s decision. This dilemma was created because the decision that the worker made a personal choice not to work was based on a finding of the Original Panel, (which was under review), but in the meantime, was binding on all subsequent decision makers. Indeed, the WCAT panel who heard the surgical wage loss appeal decided it too was bound by the Original Panel’s decision. This latter decision is not directly before this court on judicial review in these proceedings.

[39] On May 19, 2005, the Board decided that the worker had “plateaued” and issued a plateau letter.

[40] A further assessment by the Board concluded that the worker was less disabled, but decided not to reduce the pension.

[41] The Reconsideration Panel Decision was rendered June 22, 2006. The issues before the Reconsideration Panel were: a) whether WCAT committed a breach of natural justice or other error of law going to jurisdiction and, b) whether new evidence had been provided which meets the requirements of s. 256 of the Act. The first issue had several sub-issues: first, whether WCAT breached natural justice by not summonsing adverse witnesses in order to enable the worker to cross-examine them; second, whether WCAT’s handling of the evidence resulted in a patently unreasonable decision (I add that the worker takes issue with this standard); third, whether WCAT erred by not considering an appeal of the Review Division that found the Board’s proposed adjustment of income continuity benefits to be moot; and fourth, whether WCAT’s decision contravened the Board policy and thus was patently unreasonable. The second issue included the question of whether the Board should bear the expense of the new report of Dr. Regan.

[42] WCAT found that the failure by the Original Panel to consider the Review Division’s decision, that the Board’s proposed adjustment of income continuity benefits were moot, did not amount to jurisdictional error because in a provisional decision dated April 2, 2004, WCAT advised the worker that the issue was not appealable to WCAT. Decisions regarding s. 16 vocational rehabilitation benefits, including income continuity benefits, were no longer appealable to WCAT after March 3, 2003, relying on s. 40 of the Transitional Provisions of the Workers Compensation Amednment Act No. 2, 2002 S.B.C. 2002, c. 56 and s. 239(2)(b) of the Act. The worker did not object to this decision which was subsequently confirmed by WCAT on May 21, 2004. While the Reconsideration Panel noted that the Original Panel made no mention of this aspect of the appeal (which was identified as appeal G), in its decision, that failure did not amount to jurisdictional error in light of the earlier May 21, 2004 WCAT decision. The Review Division also found that this aspect of the Board’s decision was moot as no income continuity benefits were paid at the reduced rate. The Reconsideration Panel listened to the entire oral hearing before the Original Panel and noted that the Original Panel mentioned this point in the oral hearing.

[43] With respect to the issue of cross-examination of the adverse witness, the Reconsideration Panel reviewed the worker’s notice of appeal wherein she expressed her wish to cross-examine the employer’s witness, WCAT rules found in the Manual of Rules of Practice and Procedure (MRPP), the correspondence and submissions, the oral hearing tapes, and the law with respect to cross-examination and the ability of the tribunal to subpoena a witness. The Reconsideration Panel found that the Notice of Appeal was too vague in its request to cross-examine the employer’s witness. The Reconsideration Panel concluded that that could mean anyone, in spite of the fact that Dean Shropshire was the only person who provided a witness statement for the Review Board. The Reconsideration Panel also found that although the worker did request to cross-examine the employer’s witness in her appeal, she did not ask WCAT to issue a subpoena. When the employer appeared at the hearing by telephone, without the witness, the worker did not object or reiterate her request for cross-examination. At the end of the hearing, the worker complained about the fact that Dean Shropshire was not available for cross-examination, but there was no specific request to WCAT to subpoena him. As a result, the Reconsideration Panel concluded that there was no breach of procedural fairness.

[44] The Reconsideration Panel reviewed the Record of Proceedings and the decision and concluded that the Original Panel’s decision on the evidence was not patently unreasonable.

[45] The Reconsideration Panel reviewed the policies as applied by the Original Panel and concluded that the Panel had not rendered a patently unreasonable decision.

[46] The last issue for the Reconsideration Panel was the new evidence in the form of Dr. Regan’s report. The Reconsideration Panel concluded that the new evidence was aimed at a request for wage loss benefits from the time of the accident. Wage loss benefits are not payable after the plateau letter is sent, and the worker unsuccessfully attempted to appeal the plateau letter. The Reconsideration Panel concluded that the worker was attempting to get around the plateau letter which was valid. The Reconsideration Panel concluded that the worker’s condition was stable for approximately 3 ½ years after the May 29, 2001 plateau decision and the new evidence did not alter the fact that the worker’s condition remained relatively unchanged from May 2001 until the December 2004 surgery.

[47] The Reconsideration Panel concluded that the new evidence was not substantial and material.

[48] This decision is also before the Court by way of a judicial review.

[49] In summary, the worker received wage loss benefits until the Board concluded her medical condition had stabilized or plateaued. She was then awarded income continuity benefits pending the assessment for a disability pension. The income continuity benefits were paid at the same rate as the wage loss benefits. However, once she had her employment assessment, the Board concluded that she was able to earn some income in a sedentary position. Her income continuity payments were adjusted down to reflect the money she was potentially capable of earning.

[50] There are two methods of calculating a disability pension: permanent functional impairment (PFI) or loss of earnings (LOE). The PFI method provides a disability pension based on the percentage of functional impairment of the whole person (here about 17.7%). The LOE method provides a disability pension based on the difference between the long term earnings of the worker at the time of the injury and the long term earnings that the claimant earns or is capable of earning at any job that is suitable and reasonably available. The worker is paid a pension on the basis of the greater of the two.

[51] When the Board calculated the LOE, it reduced the wage loss period from the three months just prior to injury, when the worker was working more than full-time hours, to a twelve month period, from January to December 1999 based on her 1999 tax return. She started to work for the employer in February 1999, although she had worked there in the past in 1994 and 1995. She was on wage loss benefits from September to December, a sum which was not included in her loss of income analysis, even though the employer said she would be working 32 hours a week during this time period.

ISSUES

The issues for Judicial Review are:

1) Was the reduction of the worker’s income continuity benefits justified?

2) Should the Original Panel have required Dean Shropshire, the representative for the company, to be cross-examined?

3) Should the report of Dr. Regan be admitted as new evidence? Should the Board pay the full amount for Dr. Regan’s report?

4) Should the long term wage rate for pension purposes be based on a twelve month or three month period?

5) Should the worker be entitled to a loss of earnings pension as opposed to a permanent functional impairment pension?

STANDARD OF REVIEW

[52] The overarching issue and the one I will address first, is what is the standard of review for these questions?

[53] The position of WCAT with regard to the Original Panel’s findings that the worker was not competitively unemployable, and that the correct wage rate was determined on the basis of a twelve month period, and with regard to the Reconsideration Panel’s finding that the new evidence did not meet the statutory or policy tests as well as its decision regarding the reimbursement of expenses, is that the appropriate standard of review is patent unreasonableness. For the alleged failure to subpoena Dean Shropshire, the test is whether WCAT acted fairly in all of the circumstances. For the aspect of the Reconsideration Decision that reviews the Original Decision for jurisdictional error, the test is generally correctness, excepting those portions where the Reconsideration Panel provides its own analysis of an issue, and then the test is patent unreasonableness.

[54] The worker takes issue with the Reconsideration Panel applying a standard of patent unreasonableness to the findings made by the Original Panel. She submits that this is too high a standard and not supported by the legislation. The worker submits that a Reconsideration Hearing should be essentially a fresh hearing.

THE LAW

[55] The law requires that I determine the appropriate standard of review. See Speckling v. British Columbia (Workers’ Compensation Board), 2005 BCCA 80.

[56] In Speckling, the Court suggested, following Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, that the Chambers Judge must carry out the appropriate analysis and determine the appropriate standard of review. They quote, at para. 15 from Dr. Q (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 UES Local 298 v Bibeault [1988] 2 SCR 1048 and gained ascendancy in Canada (Director of Investigation and Research) v Southam Inc. [1997] 1 SCR 748 and Pushpanathan v Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 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.

[57] In Speckling, at para. 18, the Court set out the four contextual factors considered in the application of the pragmatic and functional approach:

i) the presence or absence of a privative clause or statutory right of appeal;

ii) the expertise of the tribunal relative to that of the reviewing court on the issue in question;

iii) the purposes of the legislation and the provision in particular; and

iv) the nature of the question – law, fact or mixed law or fact.

[58] The standard of review for WCAT is now legislated in the Administrative Tribunals Act, S.B.C. 2004, c. 45 (“ATA”). Section 58 of the ATA states:

(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 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…

[59] As is apparent, there is no mention of the pragmatic and functional approach. However, the case law has not developed to a point where I can be confident that it is not necessary to embark on this analysis. If it applies, it must be applied in the context of s. 58 of the ATA. I am not deciding that the pragmatic and functional approach still applies; however, I will review the standard of review in this context. Indeed, with respect to the standard of review the Reconsideration Panel applied to the Original Panel, it seems to me that a pragmatic and functional analysis must be applied to that issue.

[60] I say this having regard to the recent decision of Rowles J.A. in University of British Columbia v. University of British Columbia Faculty Association 2007 BCCA 201. I that decision, Rowles J.A., speaking for the majority said as follows:

¶ 55 One of the objectives of the legislature in enacting the ATA was to simplify the analysis required to determine the standard of review applicable on judicial review of decisions of various administrative provincial tribunals. In that regard, it is permissible to refer to what was said by the then Attorney-General, Geoff Plant, when the ATAwas in second reading, about the purposes of the ATA: R. v. Gladue, [1999] 1 S.C.R. 688 at para. 45; Global Securities Corp. v. British Columbia (Securities Commission), [2000] 1 S.C.R. 494, 2000 SCC 21 at para. 25; Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31 at para. 17. During the Attorney General's speech, found at British Columbia, Legislative Assembly, Debates of the Legislative Assembly (Hansard), Volume 25, Number 15, (18 May 2004) at 11193, he said, in part:

The question of what the standard of review should be on a case-by-case basis is often interpreted by the courts as a search for legislative intent. The words "legislative intent" are, in fact, the words that you see in the judicial decisions. What the courts are trying to do is find out what the intention of the Legislature was around the role of the courts in supervising decisions of administrative tribunals. Frankly, the Legislature does not always do as good a job as it should in making its intent clear. Accordingly, searching for that intent tends to be a time-consuming, expensive and sometimes disruptive exercise.

* * *

Absent express legislation - that is, in cases where there is not a clear statement of the legislative intent in this area - what the courts have done is develop standards of review on a case-by-case basis within the factual context of individual decisions and according to some basic principles of approach. But the result is that there are a number of different standards, and the standards are sometimes confusing. The variety of standards in itself is a source of confusion. Sometimes the standards conflict with each other, and they are often difficult to apply when questions are raised in other contexts and circumstances.

* * *

	In the bill before us today, this government is for the first time taking up the challenge of defining legislative intent by simplifying and codifying the standards of review that we want courts to apply in their review of tribunal decisions. For tribunals with specialized expertise, like the Farm Industry Review Board and the Employment Standards Tribunal, this bill generally provides that a court must defer to a tribunal's decision unless the decision is patently unreasonable or the tribunal has acted unfairly. For other tribunals - including, for example, the mental health review panels - the bill provides that with limited exceptions, a court must adopt a standard of correctness in reviewing the tribunal's decisions.
	[...] The provisions in this bill that codify the standards of review will shift the focus from what has been largely a scholarly debate about fine points of law to matters of greater immediate concern to the parties in tribunal proceedings. I believe these provisions offer the promise of greater certainty and finality to those British Columbians who want tribunals to help them on the matters that concern their health, their jobs and their futures.

¶ 56 Before the ATA was enacted, the standard of review that applied to judicial review of all decisions of administrative tribunals in this province was determined through the pragmatic and functional analysis developed by the Supreme Court of Canada beginning with U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048. In Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19, McLachlin C.J.C., for the Court, reviewed that approach and outlined its four factors, beginning at para. 26:

In the pragmatic and functional approach, the standard of review is determined by considering four contextual factors - the presence or absence of a privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purposes of the legislation and the provision in particular; and, the nature of the question - law, fact, or mixed law and fact. The factors may overlap. The overall aim is to discern legislative intent, keeping in mind the constitutional role of the courts in maintaining the rule of law. ... I must emphasize that consideration of the four factors should enable the reviewing judge to address the core issues in determining the degree of deference. It should not be viewed as an empty ritual, or applied mechanically. The virtue of the pragmatic and functional approach lies in its capacity to draw out the information that may be relevant to the issue of curial deference.

¶ 57 In my opinion, the Board's approach to the interpretation of sections 58(1) and (2) does not take into account the extent to which sections 58 and 59 of the ATA, taken together with the enabling statutes of various tribunals, are designed to incorporate into the legislative scheme the elements of the pragmatic and functional analysis. The standard of review applicable to decisions of tribunals with a privative clause in their enabling legislation is governed by s. 58 of the ATA whereas s. 59 of the ATA applies where the enabling act contains no privative clause. Under s. 59, the standard of review to be applied to a decision of the tribunal is correctness for all questions except those respecting the exercise of discretion, findings of fact and the application of the common law rules of natural justice and procedural fairness.

¶ 58 The Board contends that the structure and language of s. 58(2)(a) supports its position that the patently unreasonable standard is the appropriate standard of review to apply. I will repeat that subsection for convenience of reference:

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,

¶ 59 The Board argues that "the matter" before the Board was the review of the arbitral award for consistency with Code principles under s. 99 of the Code, not the University's "argument" concerning the University Act. Thus, the standard of review set out in subsection 58(2)(a) must apply. That argument assumes that the interpretation of the University Act was intended to be within the exclusive province of the Board in its review of the arbitral award.

¶ 60 When the enabling legislation contains a privative clause, s. 58(1) of the ATA provides that "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." Section 58(2)(a) directs that "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." Subsection 58(2)(c) provides that "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."

¶ 61 By the inclusion of s. 58(2)(c) of the ATA, it seems to me that the legislature must have intended that the standard of review to be applied in respect of those matters over which a expert tribunal does not have exclusive jurisdiction is correctness.

[61] While this case goes a considerable distance in suggesting that the ATA has dispensed with the pragmatic and functional approach, the case law since the proclamation of the ATA is not entirely settled. As a result, while I am of the opinion that the ATA, and more specifically, s. 58, applies to this case, I have performed the “pragmatic and functional” approach out of an abundance of caution. As will be seen, the result is the same.

PRIVATIVE CLAUSE

[62] The ATA defines “privative clause” as follows:

“privative clause” means provisions in a 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.

[63] In Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890, Sopinka J., speaking for the court, at para. 17, defined a full privative clause as “one that declares that decisions of the tribunal are final and conclusive from which no appeal lies and all forms of judicial review are excluded”.

[64] WCAT has a full privative clause, which is found in s. 255:

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.

[65] The following sections of the Act are also relevant:

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 s. 239;

(b) all appeals from Board decisions or orders as permitted under s. 240;

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

s. 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.

s. 253 (1) On an appeal, the appeal tribunal may confirm, vary or cancel the appealed decision or order.

[66] Section 96 sets out the Board’s privative clause and its exclusive jurisdiction. The relevant portions applicable to this application are:

The Board has exclusive jurisdiction to inquire into, hear and determine…

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

(b) the existence and degree of disability by reason of an injury;

(d) the degree of diminution of earning capacity by reason of injury;

(e) the amount of average earnings of a worker, whether paid in cash or board or lodging or other form of remuneration, for the purpose of levying assessments, and the average earnings of a worker for purposes of payment of compensation…

THE APPLICATION OF THE PRAGMATIC AND FUNCTIONAL APPROACH

[67] There is clearly a broadly worded full privative clause which indicates that the intention of the Legislature was that WCAT would have exclusive jurisdiction to decide issues arising from the Act.

[68] In Pasiechnyk, supra, Sopinka J. said, at para. 36:

The expertise of workers’ compensation boards was recognized early on. In Dominion Canners, Idington J. noted at p. 53 that:

The past experience of the members of the board, no doubt, was sufficient guide and we should at least give them credit therefore, and knowledge, by this time, of the Act, superior, I imagine, to ours.

[69] The legislation sets out the appointment and composition of the Board, as the regulations demonstrate its expertise.

[70] Further, in Pasiechnyk, Sopinka J. said at para. 38:

The composition, tenure and powers of the Board demonstrate that it has very considerable expertise in dealing with all aspects of the worker’s compensation system. Not only does the Board have day-to-day expertise in handling claims for compensation, in settling assessment rates and promoting workplace safety; but it also has expertise in ensuring that the purposes of the Act are not defeated. As Wakeling J commented at p. 301 in his dissenting reasons:

[The Board Members] are well equipped to draw on a background of experience to determine how the Act will best function so as to assure a continued consistent development of the intended purposes of the Act. I have no reason to doubt they are well-qualified to decide the various issues the legislation is designed to present to them.

[71] Many other decisions have confirmed the Board’s expertise in the area of workers compensation: See Basura v. BC (WCB), 2005 BCSC 407, Wu v. BC (WCAT), 2005 BCSC 1449, Wyant v. BC (WCB), 2006 BCSC 680 and Albert v. BC (WCB), 2006 BCSC 838.

[72] The expertise of the Board clearly favours deference to it. On the other hand, the worker submits that the Reconsideration Panel is as expert in this area as the Original Panel and thus, no deference should be given to the Original Panel’s findings of fact. Indeed, this aspect weighs against deference on this point. I will explore this further when I address the issue of the legislative purpose.

LEGISLATIVE PURPOSE

[73] The Act sets up a comprehensive legislative scheme for workers’ compensation. The development of the scheme is traced by Sopinka J. in Pasiechnyk. In his reasons, he discusses the “historic trade-off” by introducing a no-fault benefit scheme which paid workers who suffered injuries, but also prevented them from suing their employer. At para. 26, Sopinka J. said this:

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 DLR (4^th) 501 (Nfld CA) 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.

[74] In Kovach v. British Columbia (Workers’ Compensation Board), [1998] B.C.J. No. 1245 (C.A.) (overturned on appeal and the dissenting reasons of Donald J.A. affirmed), [2000] 1 S.C.R. 55, Donald J.A. said the following at para. 33:

…the principles of the model WCB scheme [have been] identified by Mr Justice Sopinka in Pasiechnyk, supra, at 909:

Montgomery J also commented on the purposes of workers compensation in Medwid v Ontario (1988), 48 DLR (4^th) 272 (Ont. H.C). He stated at p. 279 that the scheme is based on four fundamental principles:

a) compensation paid to injured workers without regard to fault;

b) injured workers should enjoy security of payment;

c) administration of the compensation schemes and adjudication of claims handled by an independent commission, and

d) compensation to injured workers provided quickly without court proceedings.

I would note that these four principles are interconnected. For instance, security of payments is assured by the existence of an injury fund that is maintained through contributions from employers and administered by an independent commission, the Workers’ Compensation Board. The principle of quick compensation without the need for court proceedings similarly depends upon the fund and the adjudication of claims by the Board. The principle of no-fault recovery assists the goal of speedy compensation by reducing the number of issues that must be adjudicated. The bar to actions is not ancillary to the scheme but central to it.

[75] The structure of the workers’ compensation scheme also is a factor which tends towards deference to WCAT. It is obliged to take into consideration the workers’ circumstances, the employer’s interests, the public interest and the application of policy. All of which requires deference from the reviewing court.

[76] The legislative scheme and purpose is also a relevant factor when considering whether the Original Panel should be given deference by the Reconsideration Panel. In my view, this factor supports such deference. One of the purposes of the Act is to ensure that workers’ claims are decided quickly, without recourse to the Courts. If the Reconsideration Panel hearing was, in essence, a new hearing, then proceedings would be inappropriately prolonged. Every unhappy party, whether it is the worker or employer, would simply request a rehearing on the facts. Presently the rehearing is limited to new evidence and to a jurisdictional error by the Original Panel. This is a sensible, and if I may say, a pragmatic and functional approach.

THE NATURE OF THE QUESTION

[77] The issues raised by the worker (save the issue of cross-examination of Dean Shropshire) involve primarily findings of fact or mixed law and fact. The determination of the wage rate and the degree of disability requires an assessment of the medical evidence, the oral evidence, and all the documents filed, such as employment information and the employability assessments.

[78] The issue of the admissibility of new evidence requires the application of fact finding and law. WCAT has exclusive jurisdiction to interpret and apply its own statute.

[79] Thus, this factor also weighs in favour of deference to WCAT by the Court. It generally does not weigh in favour of deference by the Reconsideration Panel to the Original Panel. Both have the necessary expertise, although in this case, the worker testified before the Original Panel and thus that Panel had the benefit of seeing and hearing the witness in order to assess credibility.

[80] Considering the four factors as set out in the pragmatic and functional approach, it is clear that this court must give considerable deference to WCAT on all the issues, save and except the issue of cross-examination, which I will return to shortly. The standard of review therefore is one of patent unreasonableness with respect to the Court’s review of WCAT, subject to my comments below.

[81] With respect to the issue of the standard of review regarding the Reconsideration Panel and the Original Panel, although three of the four factors seem to weigh in favour of no deference between panels, such a standard would completely undermine the entire scheme that has been established. The Reconsideration Panel hearing has been set up to correct jurisdictional errors without recourse to the courts, an issue on which the standard is correctness, and to consider fresh evidence – again to avoid having to proceed in the courts when fresh evidence is available and may change the decision. To permit a completely fresh hearing is simply not efficient or realistic. Obviously the weight to attach to each factor will vary in the context of the application.

[82] The third factor, the legislative purpose, in these circumstances, outweighs the other factors in terms of applying the pragmatic and functional approach. Therefore, I conclude that the standard of review in terms of questions of facts as between the Reconsideration Panel and the Original Panel is one of patent unreasonableness.

[83] Finally, the failure to subpoena Dean Shropshire, the employer’s witness, is pleaded as a breach of natural justice. The standard of review is fairness. Counsel for WCAT made no submissions, save for an outline of the facts and law, on this issue, which is the standard practice as the Courts have found it is not appropriate for WCAT to take a position on issues of natural justice.

PATENT UNREASONABLENESS

[84] Section 58(3) of the ATA states:

(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.

[85] This legislation applies to discretionary decisions and does not address issues of mixed fact and law. Therefore, the common law definition of patently unreasonable still applies. See: Albert, supra, at para. 37; Basura, supra.

[86] In PSAC, supra, the Court said at 963-964:

It is said that it is difficult to know what “patently unreasonable” means. What is patently unreasonable to one judge may be eminently reasonable to another. Yet any test can only be defined by words, the building blocks of all reasons. Obviously, the patently unreasonableness test sets a high standard of review. In the Shorter Oxford English Dictionary “patently” an adverb, is defined as “openly, evidently, clearly”. “Unreasonable” is defined as “[n]ot having the faculty of reason; irrational…Not acting in accordance with reason or good sense”. Thus, based on the dictionary definition of the words “patently unreasonable”, it is apparent that if the decision the Board reached, acting within its jurisdiction, is not clearly irrational, that is to say evidently not in accordance with reason, then it cannot be said that there is any loss of jurisdiction. This is clearly a very strict test.

[87] In Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, Iacobucci J. stated at para. 57:

The difference between “unreasonable” and “patently unreasonable” lies in the immediacy or obviousness of the defect. If the defect is apparent on the face of the tribunal’s reasons, then the tribunal’s decision is patently unreasonable. But if it takes some significant searching or testing to find the defect, then the decision is unreasonable but not patently unreasonable.

[88] Further, in Kovach, supra, Donald J.A., said at para. 26:

Madam Justice Newbury identified serious flaws in the Board’s reasoning but I think that the review test must be applied to the result not to the reasons leading to the result. In other words, if a rational basis can be found for the decision it should not be disturbed simply because of defects in the tribunal’s reasoning.

[89] In Speckling, the Court of Appeal, at para. 33, approved of the approach taken by the Chambers Judge (Josephson J.) where he noted the following principles:

1. The standard of review is that of patent unreasonableness: Canada (Attorney General) v. P.S.A.C. (1993), 101 D.L.R. (4^th) 673 (S.C.C.).

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

3. The review test must be applied to the result not to the reasons leading to the result: Kovach v. British Columbia (Workers’ Compensation Board) 2000 184 D.L.R. (4^th) 415 S.C.C.

4. The privative clause set out in s. 96(1) of the Act requires the highest level of curial deference: Canada Safeway v B.C. (Workers Compensation Board) (1998), 59 B.C.L.R. (3d) 317 (C.A.)

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

[90] Finally, Board policy is binding on WCAT as set out in s. 250 of the Act.

1) REDUCTION OF THE INCOME CONTINUITY BENEFITS

[91] In reducing the income continuity benefits, the Original Panel found that the worker was a part-time worker. Further, the Original Panel found that she was capable of some part-time work.

[92] The Original Panel found that the worker, although working full-time at the date of injury would be facing reduced hours as the tourist season ended and was not going to continue full-time. The Original Panel also found that she may have been subject to lay-offs which is a finding contrary to the evidence filed by the employer, but based on the worker’s history with the employer. The Original Panel relied on the letter of Dean Shropshire submitted by the employer, as well as the worker’s history with the employer. The worker had worked for the employer in the past and had been subject to lay-offs. The worker also acknowledged that she had been hired as permanent-part-time, but was working full-time when the injury occurred.

[93] In order for the Original Panel to be patently unreasonable, there must be no evidence to support the conclusion. There is clearly some evidence and thus, the decision cannot be said to be patently unreasonable.

2) CROSS-EXAMINATION OF DEAN SHROPSHIRE

[94] This is the logical place to address this issue as it relates directly to the issue of the reduction of continuity benefits. The request to cross-examine the employer’s witness appeared on the Notice of Appeal. The Original Panel clearly accepted the half-page hand-written undated letter signed by Dean Shropshire. The worker testified and said Dean Shropshire was lying. At no time did the Original Panel address the issue of the request for cross-examination. In final submissions, the worker complained that Mr. Shropshire had not been produced for cross-examination, but did not request that the hearing be adjourned for him to be subpoenaed.

[95] The failure to issue a subpoena was addressed by the Reconsideration Panel. The Reconsideration Panel referred to the fact that when the employer did not produce Dean Shropshire at the hearing, the worker did not request a subpoena for him. WCAT has the power to subpoena witnesses, but requires the person requesting the subpoena to make written application. See Policy #8.60. The worker submits that the only person her written request could have referred to was Dean Shropshire as he was the only witness from the employer.

[96] The worker also challenges the policy of the Board and submits that the policy (which requires the person requesting the subpoena to provide information including the name and address of the witness and whether the witness is likely to attend) is unfair. I am told that this policy has since been amended.

[97] The worker submits that it should not be assumed that she acquiesced to the lack of cross-examination by not raising it directly either prior to or at the hearing. Frankly, I can come to no other conclusion. The worker knew before the hearing that Mr. Shropshire was not attending, and certainly by the time the hearing commenced, she was well-aware that he was not attending. There was no request, oral or written, to have him attend, either before, during, or at the close of the hearing. In these circumstances, it cannot be said that the Original Panel acted unfairly. I agree with the conclusion of the Reconsideration Panel.

[98] I return to the issue of the continuity benefits. The next issue in relation to continuity benefits is the finding that the worker was employable part-time in a limited capacity. In coming to this conclusion, the Original Panel had medical evidence of Dr. Leete who suggested that the worker could be retrained for sedentary work. The employment assessment by Mr. Johnson opined that the worker could do sedentary work in the hotel industry or as a counter clerk, such as in a car rental agency. However, he said that the unlikelihood of this type of employment being available to her in Tofino rendered the worker unemployable. The worker was in her late 50’s, had been out of the job market for some time and had lived in Tofino for many years in the house she built.

[99] The VRC then obtained information for salary rates in Nanaimo and Victoria, but none in Tofino. He advised the worker that she did not have to relocate, but the assessment of her benefits would take into account the offers by the Board to assist her. The offers did not include helping her find a job in Tofino.

[100] Of some importance is the finding that the worker considered herself unemployable and made a personal decision to remove herself from the workforce. The evidence in support of this finding is in a letter dated June 26, 2002, to the worker from the Board regarding vocational rehabilitation assistance available to secure suitable employment and an explanation of the next step in the pension process. In particular, the VRC said that the Board “is willing to consider further financial assistance towards your return to suitable work in the form of benefits for a work assessment or training on the job program with an interested employer. Also note that the department is willing to consider assisting you with moving expenses, if you find suitable permanent employment in another locale” (in spite of telling her in the same letter that she did not have to relocate). The Original Panel relied on this in order to find that the worker had voluntarily removed herself from the workforce because she did not take the Board up on these offers. The difficulty with this finding is that the worker never accepted or rejected the offer. She appealed it.

[101] Although the Board did not assist the worker in finding new work in Tofino, the finding that she was capable to perform part-time sedentary work is supported by the evidence.

[102] What is not supported by the evidence, in fact there is no evidence, is that the worker voluntarily withdrew from the workforce. The fact the worker’s response to the offers of assistance based on certain findings by the VRC was to appeal is not evidence that she voluntarily withdrew from the workforce. This finding is patently unreasonable based on the test stated above.

NEW EVIDENCE

[103] The issue relating to the new evidence relates to the issue of employability of the employee and I will address this now.

[104] The section addressing new evidence is s. 256:

s. 256 (2) party to a completed appeal may apply to the chair for reconsideration of the decision in that appeal if new evidence has become available or been discovered.

(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 is

(a) substantial and material to the decision, and

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

[105] Dr. Regan submitted a report post-surgery, in December 2004. The surgery occurred after the Original Panel released its decision. The findings post-surgery were not before the Original Panel.

[106] One of the findings of fact of the Original Panel was that the worker was not competitively unemployable. In reaching this finding, the Original Panel considered the medical evidence, the functional evaluations and the employability assessments. The Original Panel rejected findings made in the employability assessments (assessments of Linc Johnson and Ms. Quastel) and instead relied primarily on medical evidence which seemed to suggest that she could qualify for sedentary work.

[107] The report of Dr. Regan addresses this issue squarely. His report is essentially that he had to redo the surgery performed by Dr. Leete, however, more importantly, he said when he opened up the shoulder he also found acromio-clavicular arthritis. He opined that the worker would have been disabled from working as a result of her 1999 accident and would only be able to return to work approximately five months post-December surgery. This is new evidence which clearly sheds more light on the condition of the worker than did the evidence of Dr. Leete. Indeed, it seriously calls into question the opinion of Dr. Leete, on which the Original Panel put considerable emphasis.

[108] The Reconsideration Panel addressed the issue first on the basis that the worker was attempting to get wage loss benefits and circumvent the plateau letter which was issued in May 2001. This was one argument that was put forward by the worker. No quarrel is made with the finding that the new evidence could not go behind the plateau letter.

[109] The Reconsideration Panel also discussed the new evidence in terms of the success achieved by the worker. This is true, but irrelevant. The success achieved was not the point of the new evidence.

[110] However, the Reconsideration Panel never addressed the primary point, and with the greatest of respect, missed the point of the new evidence. The new evidence directly addressed the issue of the worker’s employability, and therefore the issue of the reduction of income continuity benefits and the later pension assessment. Dr. Regan’s report contradicts Dr. Leete in terms of the worker’s ability to work, and he discovered an additional condition which was not addressed by Dr. Leete.

[111] The Chair obviously found that the evidence was substantial and material as he ordered a reconsideration hearing. See Policy #15.23. It does not appear that this finding binds the Reconsideration Panel. The finding by the Reconsideration Panel, although due the highest of deference, is patently unreasonable. He did not address the main issue with which the evidence was clearly substantial and material. It goes to the heart of the Original Panel’s decision that she was employable, which was based primarily on what now appears to be flawed medical evidence and the rejection of other evidence.

[112] This will necessitate a new hearing. The issue of the overpayment depends on the finding regarding the income continuity benefits, and therefore that issue is also remitted to the Board for a new hearing. The cost of Dr. Regan’s report is also referred back as this analysis is tied to the usefulness of the evidence.

WAGE LOSS FOR PENSION PURPOSE

[113] The decision to assess wage loss for pension benefits is based on a reassessment of the wage loss. The initial wage loss benefit was based on the three months prior to the worker’s employment, which was full-time work. She was then reassessed based on her 1999 tax year, which included one month of unemployment and four months of WCB benefits.

[114] Section 33 governs this issue:

The Board must determine the amount of average earnings and the earning capacity of a worker with reference to the worker’s average earnings and earning capacity at the time of the worker’s injury.

[115] Policies #67.20 and #68:00 apply to this calculation as well.

[116] In this case, the Original Panel looked at the history of the worker with this company. She had worked there in 1994 and 1995. Both times she had been laid off in October. However, when she returned in 1999, she was hired as a permanent part-time employee. Her employer confirmed that although her hours would be reduced, there was no mention of the possibility of a lay-off. However, the Original Panel found that she might be subjected to lay-off.

[117] Policy #67.20 reads in part, as follows:

As part of the Claims Adjudicator’s enquiries, information will be obtained as to the worker’s long-term earnings prior to the injury. Normally, earnings in the one-year period prior to the injury are obtained and used to reflect the worker’s long-term wage loss and the pension rate. In some instances, however, the three-month figure prior to the injury may be used. Its use, however, is generally limited to those situations where there is a relatively fixed change in the worker’s earning pattern which is deemed likely to continue in the future. In some instances, the Claims Adjudicator may decide to select the three-year earnings figure prior to the injury. These situations are normally limited to cases where there are extenuating circumstances in the one-year period prior to injury and therefore the use of that one-year period would be incompatible with the worker’s normal historical earning pattern….[Emphasis added]

[118] The Original Panel did find that the worker had a fixed change in employment, but concluded that it would not continue in the future.

[119] The decision to base the income on the worker’s 1999 tax year does not fall into either category of assessment. It does not reflect her wages earned the three months pre-injury and it does not reflect the wages earned in the twelve months pre-injury. It is something else. It strikes me that this is a clear violation of both the statute and the above-mentioned policy. The Original Panel is bound to follow the policy of the directors. Failure to do so in this case results in a patently unreasonable decision.

[120] Much of the decision is based on the acceptance that the worker would be facing reduced hours (even though these hours were not taken into account by the Original Panel) as opposed to the worker’s position that she was working full-time. As there is to be a new hearing, the worker can make a proper application to subpoena Dean Shropshire for the new hearing.

[121] The issue of a pension based on LOE or PFI will be determined by the new panel once it hears the case. If changes are made to the LOE, I expect changes to the pension will follow.

Relief Ordered:

A. This Court declares that pursuant to the Judicial Review Procedure Act, R.S.B.C. 1996, c. 242 that the decisions of the respondent, WCAT -2004-05439-RB dated October 20, 2004 and WCAT-2006-02602 dated June 22, 2006, are null and void and of no force and effect;

B. This Court grants certiorari and quashes the aforesaid decisions and remits them to WCAT for rehearing in accordance with this Court’s reasons;

C. This Court grants certiorari and quashes the WCAT Original Panel’s decision confirming the pension wage rate in WCAT 2004-05439 dated October 20, 2004 and remits the matter to WCAT for a rehearing in accordance with this Court’s reasons;

D. This Court grants certiorari and quashes the Original Panel’s decision confirming the reduction in income continuity payments and the denial of the Loss of Earnings pension in WCAT 2004-05439 and remits the matter to WCAT for a rehearing in accordance with this Court’s reasons;

E. This Court grants certiorari and quashes the Reconsideration Panel’s decision regarding the new evidence in WCAT-2006-02602 dated June 22, 2006, and to remit the matter to a new WCAT reconsideration panel in accordance with the Court’s reasons.

As per the position of both parties, no costs are ordered.

________________________________

The Honourable Madam Justice Bennett

Citation:	*Daniel v. (British Columbia) Workers’ Compensation Appeal Tribunal,*
	2007 BCSC 1005