2007 BCSC 1580 Schulmeister v. British Columbia (Workers' Compensation Appeal Tribunal)

Before: The Honourable Mr. Justice Hinkson

Reasons for Judgment

Counsel for Petitioner	Craig Paterson
Counsel for Respondent Workers’ Compensation Appeal Tribunal	Tim Martiniuk Vladimir (Walter) Pylypchuk
Date and Place of Hearing:	September 17-20, 2007
	Vancouver, B.C.

[1] The petitioner is the widow of Edward Peter Schulmeister.

[2] On January 10, 1994, Mr. Schulmeister was seriously injured at work. As a result of his injuries, Mr. Schulmeister sought and obtained a ruling from the Workers’ Compensation Board (the “Board”) that he was permanently and totally disabled from working as a result of his work-related accident. He was provided with a permanent disability award payable to him for life.

[3] In October 2002, while on a hunting trip on the North Kalum River (also known as the Beaver River) near Terrace, B.C., Mr. Schulmeister was lost. Mr. Schulmeister’s body was not recovered until August 4, 2003. The medical certificate of death certified by coroner Art Erasmus states that the date of Mr. Schulmeister’s death was October 2, 2002, and that the immediate cause of his death was drowning.

[4] The petitioner applied to the Board for benefits as a dependant survivor of her husband. On September 22, 2003, her application was denied on the basis that Mr. Schulmeister’s death did not result from his 1994 compensable injuries.

[5] The petitioner sought a review from the Review Division of the Board. On April 13, 2004, the Review Division confirmed the decision of the Board.

[6] The petitioner appealed the Review Division’s decision to the Workers’ Compensation Appeal Tribunal (WCAT). In a decision dated February 28, 2005, WCAT confirmed the decision of the Review Division, ruling that Mr. Schulmeister’s death was not a compensable consequence of his 1994 injuries.

The Petitioner’s Application

[7] The petitioner seeks orders from the court, pursuant to the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241:

a) setting aside the WCAT decision of February 28, 2005;

b) directing WCAT to find that the petitioner is entitled to a widow’s pension retroactive to October 3, 2002, with interest since that date, or alternatively directing WCAT to conduct an oral hearing de novo; and

c) directing WCAT to find that the petitioner is entitled to her legal costs and her disbursements before WCAT, and in these proceedings.

[8] The petition in this case was filed within 60 days of the WCAT decision as required by s. 245.1 of the Workers’ Compensation Act, R.S.B.C.1996, c. 492 (the “Act”), and s. 57(1) of the Administrative Tribunals Act, S.B.C. 2004, c. 45.

Statutory Framework

[9] The Act establishes a comprehensive, no-fault insurance scheme for British Columbia workers who sustain injuries arising out of and in the course of employment.

[10] The scheme is wholly funded by British Columbia employers, and administered by the Board. Section 82(1)(a) of the Act requires the directors of the Board to set and revise the Board’s policies which are binding on the Board in making or reviewing decisions, and binding on WCAT when deciding appeals.

[11] The policies of the Board relating to compensation claims are compiled in the Rehabilitation Services and Claims Manual (RSCM). While Mr. Paterson for the petitioner referred to a variety of Board policies, the parties agree that policy item #22.00 contained in Volume 2 of the RSCM sets out the principal policy in issue on this application. That policy states:

Once it is established that an injury arose out of and in the course of employment, the question arises as to what consequences of that injury are compensable. The minimum requirement before one event can be considered as the consequence of another is that it would not have happened but for the other.

Not all consequences of work injuries are compensable. A claim will not be reopened merely because a later injury would not have occurred but for the original injury. Looking at the matter broadly and from a “common sense” point of view, it should be considered whether the previous injury was a significant cause of the later injury.

[12] WCAT is an external, independent body from the Board, and is the final level of appeal from decisions of the Board. It can confirm, vary or cancel a decision or order appealed from, including substituting its own decision for that of the decision maker whose decision is appealed.

[13] Section 250(2) of the Act provides:

(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.

[14] Under s. 251 of the Act, WCAT can challenge a policy of the Board that is “so patently unreasonable that it is not capable of being supported by the Act and its regulations”.

[15] In Van Unen v. British Columbia (Workers’ Compensation Board) (2001), 87 B.C.L.R. (3d) 277, 2001 BCCA 262 at para. 40, Lambert J.A. for the court concluded that an appeal to the Appeal Division of the Board (the predecessor to WCAT) was not required to be by hearing de novo. I have concluded that an appeal to WCAT need not be by hearing de novo.

[16] On an appeal, WCAT is provided with the record of the Review Division and the Board, as well as the complete file of the Board. It may also “receive and accept information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law” as stated in s. 246.1(1) of the Act.

[17] Section 254 of the Act provides:

Exclusive jurisdiction

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.

[18] Section 255 of the Act is a privative clause:

Appeal tribunal decision or action final

255(1) Any decision or action of the chair or the appeal tribunal under this Part is final and conclusive and is not open to question or review in any court.

(2) Proceedings by or before the chair or appeal tribunal under this Part must not

(a) be restrained by injunction, prohibition or other process or proceeding in any court, or

(b) be removed by certiorari or otherwise into any court.

(3) The Board must comply with a final decision of the appeal tribunal made in an appeal under this Part.

(4) A party in whose favour the appeal tribunal makes a final decision, or a person designated in the final decision, may file a certified copy of the final decision with the Supreme Court.

(5) A final decision filed under subsection (4) has the same force and effect, and all proceedings may be taken on it, as if it were a judgment of the Supreme Court.

[19] Although the Administrative Tribunals Act, S.B.C. 2004, c. 45 was proclaimed in force after Mr. Schulmeister’s death, it nonetheless applies to the WCAT decision at issue in these proceedings. Section 58(1) and (2) provide:

Standard of review if tribunal's enabling Act has privative clause

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.

[20] The statute then defines the term “patently unreasonable” in s. 58(3):

58(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.

History

[21] Mr. Schulmeister was born on March 17, 1951. During the course of his working life, he had a number of compensable injuries. His most serious injuries occurred on January 10, 1994, and included a compound depressed left frontal skull fracture, a left orbital and facial fracture, a left ruptured globe, the loss of his left eye, an anterior basal skull fracture, the loss of his senses of smell and taste, numbness and decreased sensation of his left forehead, cheek and upper lip, injury to his right optic nerve and impairment of his depth perception.

[22] Mr. Schulmeister’s 1994 injuries required facial surgery including the fixation of various metal plates and screws. It left him with cognitive impairments, memory deficits, and resulted in personality changes marked by impatience and anger.

[23] Although Mr. Schulmeister continued to drive a car after his 1994 injuries, he did not do so in snowy conditions due to his visual difficulties. There was evidence before the WCAT that Mr. Schulmeister was an unsafe driver even in better weather.

[24] Mr. Schulmeister was apparently a keen and accomplished fisherman and hunter both before and after his 1994 injuries. After the injuries, however, he encountered difficulties that he had not encountered before. For example, he was apparently involved in a near boating accident in ocean waters after 1994, due to difficulties with his depth perception.

[25] One of Mr. Schulmeister’s sons and three of his friends described how his visual difficulties hampered his handling of his boat, as his impaired depth perception caused him to misjudge objects in the water such as buoys and logs. One of the friends described how Mr. Schulmeister’s visual difficulties after 1994 caused him to hit gravel bars or beach his boat on a number of occasions.

[26] In May of 2001, Mr. Schulmeister went on a hunting expedition to South Africa. While on this trip, Mr. Schulmeister was unable to traverse down a steep incline due to his difficulties with depth perception.

[27] On Wednesday, October 2, 2002, Mr. Schulmeister was hunting along the Beaver River near Terrace, B.C. with his brother Henry, Tom Urbanowski, and perhaps one other man.

[28] The group was using Mr. Schulmeister’s boat to take them to various spots along the river where they would be put ashore to hunt. Mr. Schulmeister was operating the boat when it ran into difficulty and began to take on water. The boat ultimately capsized. While Mr. Schulmeister’s companions were able to make it to places of safety, he did not.

[29] When Mr. Schulmeister’s body was recovered, an autopsy was not performed and his body was cremated.

Position of the Petitioner

[30] Through her counsel Mr. Paterson, the petitioner raises a host of complaints and challenges including the assignment of the file following the petitioner’s claim, the field investigation, the review by the Review Division and the appeal to WCAT to name but some.

[31] The petitioner argues that the responsible case manager contravened policy item #97.00 by including in his referral memo to the field investigator a view that it “seems very unlikely that this would be an acceptable claim”.

[32] The field investigator’s report was the basis for the initial rejection of the petitioner’s claim. The petitioner argues that it was wanting because the investigator either failed to obtain copies or failed to place copies of the RCMP and coroner’s records relating to their investigations, and in particular, the witness statements they obtained in the Board file.

[33] The petitioner further argued that she was never provided with the field investigator’s report before her claim was rejected.

[34] With respect to the Review Division decision, the petitioner submits that the training and qualifications of the reviewer are unknown, that he failed to do his own investigation, and that he relied upon hearsay evidence from the field investigator.

[35] Insofar as the WCAT hearing is concerned, Mr. Paterson challenged the conclusions reached by the panel.

[36] In his attack on the WCAT decision, Mr. Paterson relied upon both s. 250(4) of the Act and a variety of Board policies, including board policy item #26.22. Subsection 250(4) of the Act provides:

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.

[37] Policy item #26.22 provides in part:

Since workers’ compensation in British Columbia operates on an inquiry basis, there is no onus on the worker to prove his or her case... It is then the responsibility of the Board to research the available scientific literature and carry out any investigations…which may be necessary...the worker will not be prejudiced by his or her own failure or inability to find the evidence to support the claim.

[38] Mr. Paterson argued that the WCAT erred in failing to hold a pre-hearing conference.

[39] Mr. Paterson argued that the WCAT panel failed to adhere to a number of procedural steps that he says ought to have been followed, and that the panel misconstrued the test to be applied under policy item #22.00.

[40] Among the procedural complaints raised by Mr. Paterson was the refusal of the petitioner’s request for an oral hearing by WCAT. He said that this deprived the petitioner of the ability to challenge the evidence relied upon by WCAT by having the witnesses whose statements were relied upon produced for the purpose of cross-examination.

[41] Mr. Paterson argued that there ought to have been an autopsy. As he did with respect to the Review Division decision, Mr. Paterson argued that the WCAT should have insisted upon seeing the files of both the coroner and the RCMP, who apparently had two files at one point in time. One of those two files has apparently been destroyed.

[42] Mr. Paterson also argued that the WCAT decision was wanting as the panel didn’t have or ask for the records of the Terrace search and rescue service.

[43] Mr. Paterson forcefully argued that the statements provided by Henry Schulmeister and Tom Urbanowski to the police and the coroner were untrue, as they failed to mention the presence of Mr. Urbanowski’s son Michael in the boat when the events leading to the capsize of the boat began.

[44] In a letter dated January 28, 2004 from Henry Sculmeister’s wife Jeanette to the Workers’ Compensation Board, she described the events leading to the loss of Mr. Schulmeister that were related to her by her husband. Michael Urbanowski is not mentioned in this account. The letter was an exhibit to the affidavit of Mr. Paterson’s law firm assistant sworn July 11, 2007. No copy of this letter, or the subpoena to the RCMP, was included in the Certified Record produced by the Board. Mr. Paterson said this was an indication that the Record was incomplete.

[45] In her affidavit of July 10, 2007, the petitioner deposed that in the fall of 2004 she was told by Jeanette Schulmeister that “Mike Urbanowski was with Tom, Ed, and Henry when Ed’s boat ran into trouble”.

[46] The petitioner, through her counsel, also argued that the panel took extraneous considerations into account.

[47] Section 249 of the Act enables the WCAT to obtain “independent assistance or advice” from “health professionals”, and the petitioner argues that the panel ought to have done so in this case. The petitioner further argued that the rejection of the medical opinions proffered on her behalf was patently unreasonable.

[48] The petitioner further argued that the WCAT panel fell into error by failing to refer the interpretation of board policy item #22.00 to a precedent panel pursuant to s. 238(6) of the Act. That section provides:

238(6) If the chair determines that the matters in an appeal are of special interest or significance to the workers’ compensation system as a whole, the chair may appoint a panel of up to 7 members with either of the following memberships…

[49] Mr. Paterson also argued that the decision of the WCAT panel to refer to the non-medical witnesses without using their names was an error in procedure.

[50] Mr. Paterson asserted that the petitioner ought to have been awarded her legal costs and her full disbursements by the WCAT.

[51] In his oral submissions, Mr. Paterson strenuously argued that the WCAT panel’s application of causation pursuant to policy item #22.00 was patently unreasonable.

Position of the Respondent

[52] In their written submissions, counsel for the respondent recognized the constraints upon them in making submissions, and limited their argument to the question of the appropriate standard of review, matters of jurisdiction and an explanation of the record; see CAIMAW Local 14 v. Paccar of Canada Ltd., [1989] 2 S.C.R 983, 62 D.L.R. (4th) 437. They did not make written submissions on the issues of natural justice or procedural fairness.

[53] Counsel for the respondent pointed out that the Board field investigator:

a) reviewed related RCMP records obtained from the RCMP by subpoena;

b) reviewed the coroner’s Judgment of Inquiry;

c) conducted personal interviews of Mr. Schulmeister’s friend Jim Lynch;

d) interviewed Mr. David Jephson of the Terrace Search and Rescue service;

e) interviewed Mr. Schulmeister’s former business partner Mr. Rapozo;

f) interviewed Mr. Schulmeister’s long time friend Mr. Russell Tanner; and

g) obtained and reviewed various documents relating to Mr. Schulmeister’s hunting and fishing activities.

[54] Counsel for the respondent pointed out that in the course of its review, the Review Division had the benefit of letters from nine of Mr. Schulmeister’s friends and relatives.

[55] The WCAT received yet more evidence including the medical records and a report from Dr. Fourie, Mr. Schulmeister’s general practitioner, and reports from Drs. Montgomery and Maté. It also received statistical information.

Analysis

[56] It is important to observe that this is a judicial review of the decision of the WCAT and the procedure that led to that decision, and not a review of the decisions preceding the WCAT decision.

[57] Insofar as the decision of the WCAT is concerned, the question is not whether the decision is one which a court might come to if it heard the evidence. The question is whether the decision of the WCAT is patently unreasonable: see Badesha v. British Columbia (Workers’ Compensation Board) (1991), 25 A.C.W.S. (3d) 767, 48 Admin L.R. 302 (B.C.S.C.).

[58] In Speckling v. British Columbia (Workers’ Compensation Board) (2005), 46 B.C.L.R. (4th) 77, 2005 BCCA 80, Levine J.A. for the court stated at para. 37:

As the chambers judge noted, a decision is not patently unreasonable because the evidence is insufficient. It is not for the court on judicial review, or for this Court on appeal, to second guess the conclusions drawn from the evidence considered by the Appeal Division and substitute different findings of fact or inferences drawn from those facts. A court on review or appeal cannot reweigh the evidence. Only if there is no evidence to support the findings, or the decision is "openly, clearly, evidently unreasonable", can it be said to be patently unreasonable. That is not the case here.

[59] The provisions of s. 58 of the Administrative Tribunals Act establish the standards to be applied in this review. For issues of procedure, the standard is fairness. For issues of discretion and findings of law or fact, the standard is one of patent unreasonableness.

[60] I am unable to accept Mr. Paterson’s criticism of the initial referral memo to the field investigator. While offering a preliminary view of the likelihood of the outcome, it did not fetter the investigator in his work, nor did it discourage him from undertaking whatever investigation he saw fit. In any event, it did not fetter the WCAT and presents no reviewable issue on this application.

[61] The field investigator’s reliance on information from the RCMP and the coroner was, in my view, entirely acceptable. While it would have been preferable for him to have kept file copies (if he did not do so), there was nothing before the WCAT to raise any suspicion that the statements relied upon by the field investigator were untrue. Mr. Paterson made the point in his oral submissions that he often asks WCAT panels to rely upon hearsay evidence that he proffers, and clearly it is within the discretion of the Board and the WCAT to rely upon hearsay evidence.

[62] The fact that the petitioner was not given a copy of the field investigator’s report before the initial decision to reject her claim was made was again a matter that the WCAT had discretion to address. However, given the nature of the WCAT review, and the fact that the report was available to the petitioner and her counsel before the WCAT review, it was open to the WCAT panel to conclude that any disadvantage stemming from a failure to deliver the report at an earlier time had been remedied.

[63] I reject the assertion that the training and qualifications of the reviewer in the Review Division ought to have been disclosed. Other than speculation, the petitioner offered no substance to this complaint, and there is therefore no basis for any finding of patent unreasonableness on the part of WCAT on this issue.

[64] The criticism of the Review Division in not conducting its own full investigation of the claim is again a matter that the WCAT was asked to consider. It was open to the WCAT to remit the matter back to the Board for further investigation if it thought that further investigation was needed. It did not choose to do so, and its decision on the record before it was not unreasonable, let alone patently so.

[65] The choice of not holding a pre-hearing conference was a matter of discretion for the WCAT. Mr. Paterson pointed to nothing by way of a disadvantage from the lack of a pre-hearing conference, other than his assertion that had one occurred, he would have raised issues at the conference that he raised in his submissions to the WCAT. This is not a basis for this Court to interfere with the decision of the WCAT.

[66] The failure to subpoena witnesses is only germane if an oral hearing was to take place. This complaint therefore stands or falls with the complaint that the petitioner was not afforded an oral hearing.

[67] The practice of the WCAT in ordering oral hearings is set out in s. 8.90 of the WCAT Manual of Rules of Practice and Procedure (MRPP) which states:

WCAT may conduct an appeal in the manner it considers necessary, including conducting hearings in writing or orally. Oral hearings may be conducted in person, by teleconference, videoconference, or any other electronic means.

RULE: WCAT will normally grant a request for an oral hearing where the appeal involves a significant issue of credibility. An oral hearing may also be granted where there are:

(a) significant factual issues to be determined;

(b) multiple appeals of a complex nature;

(d) other compelling reasons for convening an oral hearing (e.g. where an unrepresented appellant has difficulty communicating in writing).

WCAT will normally conduct an appeal on a read and review basis where the issues are largely medical, legal, or policy based and credibility is not at issue.

...

[68] The WCAT panel explained the reasoning for declining to hold an oral hearing at pages 2 and 3 of its decision. Mr. Paterson asserted that the explanation was after the fact, and was no more than an attempt to justify a failure to address the matter properly before the decision. I disagree.

[69] The panel considered that there were no significant issues of credibility at the time that the appeal was considered. This was a matter for the exercise of the panel’s discretion, and on the record before it, an exercise that can be supported. Other than the notice of appeal and Mr. Paterson’s submissions that the information relied upon by the field investigator and the Review Division were not credible, there was no apparent disagreement as to what occurred to Mr. Schulmeister on October 2, 2002.

[70] The panel also considered the other three reasons in the MRPP as to why an oral hearing might have been granted, and provided a reasonable explanation as to why, in its discretion, none persuaded it to engage in that form of hearing.

[71] The WCAT panel reviewed the findings of the Board as to the events that led to the capsizing of Mr. Schulmeister’s boat. The panel referred at page 5 of its decision to the assumptions that Mr. Schulmeister’s party were travelling in his river boat, being dropped off at various locations along the Beaver River, and that shortly before the boat ran into difficulty, it was near the river bank. The WCAT panel considered that as the boat left the bank, its engine sucked in some gravel or sand and lost power or was shut off.

[72] This description doesn’t differ in any significant way from Mr. Paterson’s description in his written submissions on the hearing of this petition as:

The boat in which they were fishing started taking in water, as a result of which the boat capsized, apparently because the prop became snarled in the gravel bed of the moving river, and the engine cut out, or because the boat collided with some debris, or both. ES [Mr. Schulmeister] was allegedly operating the boat.

[73] Mr. Paterson’s arguments to the WCAT were that the incident would not have occurred but for Mr. Schulmeister’s 1994 injuries, as without them he would have been at work, and hence, not out hunting.

[74] Alternatively, Mr. Paterson argued to the WCAT that the reason that the boat engine sucked in gravel or sand was because Mr. Schulmeister’s difficulties with depth perception and vision caused him to misjudge the depth of the river in the area.

[75] As a further alternative, Mr. Paterson argued to the WCAT that Mr. Schulmeister’s cognitive difficulties were such that he was unable to react appropriately to the boat’s problems when they occurred. Mr. Paterson pointed to the fact that the other men in the boat were able to make it to safety.

[76] The WCAT properly rejected the argument that but for his 1994 injuries, Mr. Schulmeister would have been at work. Such a proposition is simply too tenuous to be compensable: see Terence Ison, Workers’ Compensation in Canada, 2nd ed. (Toronto: Butterworths, 1989) at 61.

[77] There was evidence upon which the WCAT could properly conclude that Mr. Schulmeister’s cognitive or visual difficulties, or his problems with depth perception, played a role in the incident that led to his death.

[78] At p. 15 of the decision, the panel said:

I cannot conclude on the evidence that the worker’s compensable disabilities were a significant cause of the accident itself. Even if the worker’s disabilities were a cause, and “but for” those disabilities he would not have placed the boat and his [sic] occupants in danger, the other factors were far more significant. Their significance far outweighs any significance to be given to the worker’s disabilities as a cause of the underlying events leading to the accident.

[79] After discussing the issue of causation, the panel concluded at p. 18 of the decision:

… The accident was by far the most significant cause of his loss of life. Even if his compensable injuries contributed to the accident or his inability to save himself, the contribution was not significant enough to meet the requirements of policy item #22.00.

[80] These portions of the decision will be discussed with respect to the issue of causation below.

[81] Insofar as the failure to conduct an autopsy is concerned, that was a matter for the coroner and/or the family of Mr. Schulmeister. After the cremation of his body, it was not a matter that the WCAT could address.

[82] The panel’s choice not to insist upon production of the files of the RCMP, the coroner and the Terrace search and rescue service was reasonable in the absence of any dispute as to the events leading to Mr. Schulmeister’s death.

[83] Judicial review of a decision of an investigative body is warranted for a failure to inquire only where an investigator failed to investigate obviously crucial evidence (see Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574, 46 A.C.W.S. (3d) 923 (T.D.)), and the WCAT panel’s acceptance of the summary of these records does not warrant any review of that decision.

[84] Until the petitioner heard from her sister-in-law Jeanette, there was no reason to believe that there was a fourth man in Mr. Schulmeister’s boat when he experienced difficulties, and this point was not raised by Mr. Paterson before the WCAT.

[85] While a court on judicial review may consider extrinsic evidence which shows a lack of jurisdiction or a denial of natural justice, it is not the function of this court on a judicial review to retry a case based on new evidence.

[86] Section 256 of the Act provides:

Reconsideration of appeal decision

256(1) This section applies to a decision in

(a) a completed appeal by the appeal tribunal under this Part or under Part 2 of the Workers Compensation Amendment Act (No. 2), 2002, and

(b) a completed appeal by the appeal division under a former enactment or under Part 2 of the Workers Compensation Amendment Act (No. 2), 2002.

(2) A 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

(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.

(4) Each party to a completed appeal may apply for reconsideration of a decision under this section on one occasion only.

[87] This section permits the WCAT to reconsider one of its own decisions on the basis of new evidence, as long as the chair determines that the new evidence is substantial and material to the decision, and did not exist at the time of the appeal hearing. If the new evidence did exist at the time of the appeal hearing, it must not have been and could not have been discovered through the exercise of due diligence before it should be considered.

[88] The legislature has designated the WCAT as having the expertise to determine what is relevant for the purposes of workers’ compensation. It remains open to the petitioner to persuade the WCAT that she has new evidence which meets the requirements of s. 256 of the Act so that she can seek a reconsideration of its decision on the basis of new evidence.

[89] I dismiss this ground for the orders sought by the petitioner.

[90] The assertion that the panel took extraneous information into account fails. In the light of its privative clause, the WCAT is taken to have expertise in the determination of workers’ compensation claims. Given that expertise, it is for the panel to determine what is and what is not relevant, and there is nothing that it considered that is so clearly extraneous as to amount to patent unreasonableness.

[91] The decision not to seek the assistance of an independent health professional was another instance of the exercise of discretion by the panel. The opinion offered by the petitioner from Dr. Fourie did not attribute Mr. Schulmeister’s death to his compensable injuries. It went no further than stating that those injuries might have contributed to the death.

[92] The opinion of Dr. Maté was unhelpful as it was based on minimal factual assumptions, not necessarily consistent with the facts relied upon by the panel, and concluded only that “given the medical facts, the balance of probabilities would highly militate against the sequelae of Mr. Schulmeister’s injuries not making a significant contribution to his death”.

[93] The basis for the opinion of Dr. Montgomery is unstated, and one is hard pressed to understand how he could be so dogmatic. It was well within the discretion of the panel to reject it.

[94] In the absence of any basis for the panel to think that an independent health professional who had never seen Mr. Schulmeister, and had as little information about the events leading to his death as the panel had, could offer a useful opinion, it was not at all unreasonable for the panel not to seek an opinion from an independent health care professional.

[95] The petitioner argued that the WCAT erred in failing to specifically refer to a number of additional Board policies. The choice not to refer to additional Board policies does not suggest a lack of awareness of those policies, and does not demonstrate patent unreasonableness.

[96] I adopt the reasoning of Romilly J. in Baldwin v. Workers’ Compensation Appeal Tribunal, 2007 BCSC 942, 158 A.C.W.S. (3d) 687, where he stated at para. 43:

...

WCAT is required to provide reasons for its decisions, pursuant to s. 253(3) of the WCA. However, I am unaware of any requirement stating that a tribunal must mention every factor that could possibly influence a decision. In my view, to require endlessly detailed reasons in all situations would ask too much. Reasons must be sufficient to allow the parties involved to understand the decision-maker's reasoning and to provide enough information for an appeal, if one is desired, but should not be held to a standard of perfection. Indeed, there are cases which seem to acknowledge that such perfect reasons are unrealistic: see e.g. Canada (Minister of Justice) v. Mahoney, [2004] O.J. No. 2044 (C.A.) (Q.L.).

[97] Mr. Paterson argued that the panel embarked upon an unprecedented interpretation of policy item #22.00. He said that before doing so, the panel ought to have referred its intended interpretation to the Chairman to constitute a precedent panel pursuant to s. 238(6) of the Act, which provides:

238(6) If the chair determines that the matters in an appeal are of special interest or significance to the workers' compensation system as a whole, the chair may appoint a panel of up to 7 members with either of the following memberships:

(a) the chair or a vice chair, acting as presiding member, plus additional vice chairs;

(b) the chair or a vice chair, acting as presiding member, plus additional vice chairs and extraordinary members.

[98] While challenging the panel’s implementation of policy item #22.00, the petitioner did not challenge the legality of the policy.

[99] In my view, there was no need for the panel to seek the constitution of a precedent panel with respect to policy item #22.00.

[100] The choice of the panel to name only the doctors in the decision is not a matter that in my view is reviewable pursuant to the Judicial Review Proceedings Act. Even if it were, I see nothing wrong with that choice.

[101] Section 7(2) of the Workers’ Compensation Appeal Regulation, B.C. Reg. 321/2002 provides:

7(2) The appeal tribunal may not order the Board to reimburse a party’s expenses arising from a person representing the party or the attendance of a representative at a hearing or other proceeding related to the appeal.

[102] Item 13.24 of the MRPP states:

Representatives’ Fees

If a party retains a representative, they do so at their own expense. Section 7(2) of the Appeal Regulation provides that WCAT may not order the Board to reimburse a party’s expenses arising from a person representing the party, or the attendance of a representative of the party at a hearing or other proceeding related to the appeal.

If the appellant requests that the oral hearing be held at a location near the representative rather than in the appellant’s community, the appellant’s travel expenses will generally not be reimbursed.

[103] The panel awarded the petitioner only the costs of Dr. Fourie’s report. I consider that the report of Dr. Maté was of no real value to the panel, and that it properly declined to award the cost of that report to the petitioner.

[104] I consider the report of Dr. Montgomery to be sheer speculation and valueless, and I conclude that its cost was properly left to the petitioner.

[105] The WCAT panel based its analysis of the issue of causation on its interpretation of Board policy item #22.00. She acknowledged that the general test for causation in tort is the “but for” test, unless that test proves unworkable in the specific instance being considered. In that event, the test becomes whether the act in question materially contributed to the injury.

[106] The panel considered the tort approach to causation to be a minimum requirement only, under policy item #22.00, and considered that the policy modified that tort approach.

[107] The panel considered that board policy item #22.00 was a lawful and reasonable modification of the common law given that the Board is not bound by legal precedent, and that compensation for “compensable consequences” extends the principle that an injury must arise out of and in the course of employment. The panel further based its analysis on the view that workers’ compensation provides for benefits in circumstances that may not warrant a recovery in tort.

[108] On this basis, the panel turned to the issue of whether the evidence was at least equally balanced on the question of whether Mr. Schulmeister’s death would not have occurred but for his 1994 injuries. It concluded that his death would have occurred regardless of those injuries.

[109] The panel then considered whether a common sense point of view led to the conclusion that the 1994 injuries were a “significant cause” of Mr. Schulmeister’s death, and answered that question in the negative. In answering this question, the panel concluded that the causation test for a compensable consequence was different, and stricter, than both the test for causation at common law and the test for causation normally applied in the workers’ compensation system.

[110] In Kovach v. British Columbia (Workers’ Compensation Act) (1998), 52 B.C.L.R. (3d) 98, 79 A.C.W.S. (3d) 1088 at para. 28, Donald J.A. in dissent observed:

The Board was not bound to apply common law principles of causation, such as novus actus interveniens, in deciding the matter. No single theory of causation can be said to be infallible or universally applicable. What works for a tort based system may be unsuitable for a no fault scheme. It all depends on the policy goals of the system. The Board may decide that in order to encourage workers to undergo treatment for their industrial injuries, it must cover mistakes made during treatment. It may decide that it is unfair to deny coverage in such circumstances or inconsistent with a broadly inclusive policy of worker protection.

[111] The Supreme Court of Canada allowed the appeal in this case substantially for the reasons given by Donald J.A. (2000 SCC 3, [2000] 1 S.C.R. 55).

[112] In Shuchuk v. Alberta (Workers’ Compensation Board Appeals Commission), 2007 ABCA 213, [2007] A.J. No. 725 (QL) at para. 41, the Alberta Court of Appeal considered the scope of the causation test that the board in that province could create:

I agree that the WCB, as part of its policy-making function, may develop a policy whereby causation principles applicable to the provincial workers' compensation scheme differ from those principles applied by tort law: Kovach v. British Columbia (Workers' Compensation Board) (1999), 108 B.C.A.C. 283; 52 B.C.L.R. (3d) 98 (per Donald J.A., dissenting), aff'd at 2000 SCC 3, [2000] 1 S.C.R. 55. Although the decision in Kovach had the effect of expanding causation principles for the purpose of workers' compensation scheme, it is conceivable for the WCB to create a policy that imposes a stricter causative analysis under the legislative scheme as compared to the common law. However, the WCB has not done so here as there is nothing in the Policy's entitlement criteria that requires anything beyond a de minimus connection between the underlying accident and the personal injury.

[113] Policy item #22.00 refers to the question of whether a previous injury is “a significant cause” of a later injury. In interpreting this policy, the WCAT panel introduced a relative element to this term that is not found in the policy itself.

[114] Mr. Paterson conceded that in order to succeed on a judicial review application with respect to the interpretation of this policy, the standard of review to be met was one of patent unreasonableness. I agree that that is the standard on this issue.

[115] On one hand, s. 254 of the Act prescribes that the WCAT has exclusive jurisdiction with respect to matters of law. On the other hand, the WCAT panel is bound by the policies of the Board pursuant to s. 250(2) of the Act.

[116] If the panel’s analysis of policy item #22.00 is in fact a failure to apply Board policy, then the matter goes beyond a determination of a matter of law. It may then be a decision based upon an irrelevant factor or a failure to take statutory requirements into account. The decision could thus be patently unreasonable pursuant to either s. 58(3)(c) or (d) of the Administrative Tribunals Act.

[117] The panel stated that it could not conclude that Mr. Schulmeister’s compensable injuries were a significant cause of the accident that led to his death. To explain its reasoning, the panel engaged in a comparative or relative analysis with other factors.

[118] I have come to the conclusion that by introducing a relative or comparative component to the question of causative factors, the panel cannot be said to have based its decision entirely or even predominantly on irrelevant factors contrary to s. 58(3)(c) of the Administrative Tribunals Act.

[119] The failure of the panel to restrict its analysis to the question of whether or not Mr. Schulmeister’s compensable injuries were a significant cause of his death is, in my view, a failure to properly take board policy item #22.00 into account.

[120] While the policy requires a finding of significant causation before an injury or death can be considered a compensable consequence of an event, it does not require that the event be the most significant cause of the injury or death, or that other factors cannot play a greater role than the compensable injuries.

[121] Had the Board intended to require that sort of weighting of causes, it would have clearly stated that a relative analysis was needed. Instead, it stated only that a cause must be “a significant cause” of a later injury before it could be the basis for the reopening of a claim.

[122] On this basis, I have concluded that by embarking upon an analysis of “more significant” factors as it did at p. 15 of the decision, and on the “most significant cause” of the accident that led to Mr. Schulmeister’s death, on p. 18 of the decision, the panel did not properly apply policy item #22.00.

[123] Section 82(1)(a) of the Act requires the Board to set and revise policies respecting compensation, assessment, rehabilitation and occupational health and safety. The policies contained in the RSCM pursuant to s. 82(1)(a) of the Act, including policy item #22.00, have been validly prepared for the purposes of the Act and within the general terms of the Board.

[124] Generally, if subordinate legislation is both within the general purposes of the parent legislation and within the terms of the regulation-making authority, the subordinate legislation is as valid and effective as if it had been enacted by the legislature itself: see David Phillip Jones & Anne S. de Villars, Principles of Administrative Law, 4th ed. (Toronto: Thomson Carswell, 2004) at 101.

[125] I therefore conclude that board policy item #22.00 is as valid and effective as if it had been contained as a statutory requirement in the Act itself, and the WCAT is bound to apply that policy item pursuant to s. 250(2) of the Act.

[126] As a result, I find that the panel’s decision is patently unreasonable pursuant to s. 58(3)(d) of the Administrative Tribunals Act since the panel failed to take the requisite statutory requirements into account. The petitioner’s application must thus succeed, at least in part.

Conclusion

[127] The petitioner’s application for judicial review is allowed.

[128] The decision of the WCAT dated February 28, 2005 is set aside, and the matter is remitted back to the WCAT for rehearing. I decline to order that the rehearing be oral or otherwise. That is a matter for the WCAT to determine on whatever evidence and submissions are properly before it.

[129] The costs and disbursements of the petitioner before the WCAT are not recoverable, other than the cost of Dr. Fourie’s report as previously allowed.

[130] In Lang v. British Columbia (Superintendent of Motor Vehicles) (2005), 43 B.C.L.R. (4th) 65, 2005 BCCA 244 at paras. 44-48, Donald J.A. for the court considered the circumstances in which an award of costs should be made against an administrative tribunal:

As mentioned, it has been held that the adjudicator exercises a quasi-judicial function which attracts the patently unreasonable standard of review: Gordon, supra, Pointon, supra.

It follows that the Superintendent whose powers are delegated to the adjudicator enjoys the traditional immunity protecting quasi-judicial tribunals.

The parties agree that the immunity extends to costs, subject only to certain exceptions.

In Brown and Evans, Judicial Review of Administrative Action in Canada (Toronto: Canvasback, 1998-), the learned authors write:

5:2560 Costs Payable by or to the Administrative Agency

Generally, an administrative tribunal will neither be entitled to nor be ordered to pay costs, at least where there has been no misconduct or lack of procedural fairness on its part. As one court has noted:

It has been recognized ... that, contrary to the normal practice, costs do not necessarily follow the event where administrative or quasi-judicial tribunals are concerned. They may be awarded only in unusual or exceptional cases, and then only with caution ... where the tribunal has acted in good faith and conscientiously throughout, albeit resulting in error, the reviewing tribunal will not ordinarily impose costs ... I am of the view that the circumstances which prevail here do not warrant an order for costs against the commission [St. Peters Estates Ltd. v. Prince Edward Island (Land Use Commn.) (1991), 2 Admin. L.R. (2d) 300 at 302-04 (PEITD)].

However, costs have been awarded against an administrative tribunal where it cast itself in an adversarial position, acted capriciously in ignoring a clear legal duty, made a questionable exercise of state power, effectively split the case so as to generate unnecessary litigation, manifested a notable lack of diligence, or was the initiator of the litigation in question, or where bias among tribunal members had necessitated a new hearing. However, generally only court costs, and not costs associated with the entire administrative proceeding, are assessed where there has been misconduct on the part of the tribunal.

Costs were also ordered against a chief judge whose order relocating the applicant to a different district because he disapproved of his decision was set aside as in breach of judicial independence. Otherwise, judges would be discouraged from discharging their duties to uphold constitutional rights.

[Emphasis added, footnotes omitted]

For the purposes of this case it is enough to identify two exceptions:

1. misconduct or perversity in the proceedings before the tribunal; or

2. the tribunal argues the merits of a judicial review application rather than its own jurisdiction.

[131] I do not consider that there was any misconduct or perversity before the WCAT, nor on the merits of the application before me.

[132] I therefore order that the parties bear their own costs of these proceedings.

“Hinkson J.”

Citation:	*Schulmeister v. British Columbia (Workers’ Compensation Appeal Tribunal),*
	2007 BCSC 1580