2009 BCSC 49 Tallarico v. Workers' Compensation Appeal Tribunal

Before: The Honourable Mr. Justice Goepel

Reasons for Judgment

Counsel for Petitioner:	M.M. Giltrow L.C. Glowacki
Counsel for Respondent:	V.A. Pylypchuk
Date and Place of Hearing:	September 12, 2008
	Vancouver, B.C.

INTRODUCTION

[1] The petitioner, Mr. Tallarico, worked as a truck driver for 25 years. On April 22, 2002, he was injured in a workplace accident that rendered him unable to work as a truck driver. He made an application to the then Workers’ Compensation Board (the “Board”) for compensation relating to losses resulting from his workplace injury. The Board has determined that the petitioner is permanently partially disabled as a result of the April 22, 2002 accident.

[2] As part of his claim, the petitioner sought a loss of earnings (“LOE”) pension under s. 23(3) of the Workers Compensation Act, R.S.B.C. 1996, c. 492 (the “Act”) (as the Act appeared before amendments were enacted on June 30, 2002). On January 31, 2007, an officer with the Review Division of the Board denied his claim for a LOE pension. The petitioner appealed to the Workers’ Compensation Appeal Tribunal (the “WCAT”). On September 6, 2007, the WCAT denied his appeal. The petitioner now applies pursuant to the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, for an order quashing the WCAT decision and remitting the matter back to the WCAT for a rehearing in regard to the LOE pension.

HISTORY OF THE PETITIONER’S CLAIM

[3] The petitioner injured his right shoulder and left ankle on April 22, 2002. Over the next several years his claim for various benefits arising out of his injury was before the Board and the subject of various decisions, reviews and appeals. Those decisions resolved numerous issues concerning the petitioner’s claim and provide the background to the present application. In order to fully understand this application, it is necessary to review some of those earlier determinations.

[4] The permanence of the petitioner’s disability is not in dispute. What is in dispute is whether he is entitled to a LOE pension in addition to a permanent functional impairment (“PFI”) pension that he has been awarded.

[5] By January 2003, the Board had determined that the petitioner’s condition had stabilized (plateaued) and that the petitioner did not have the capacity to meet his pre-injury employment demands. The file was referred to Disability Awards to consider a pension for permanent partial disability and to Vocational Rehabilitation Services to determine alternate occupations.

[6] On February 12, 2003, the Board decided that the petitioner was capable of full time light work in many different occupations that would allow him to restore the wage rate established on the claim.

[7] On February 28, 2003, the petitioner appealed the Board’s February 12, 2003 decision to the Review Board.

[8] On March 3, 2003, the Review Board and the Appeal Division ceased to exist. The Review Division of the Board and the WCAT began operations.

[9] On June 14, 2004, a PFI assessment was performed. The petitioner was found to have a 14.54% of total impairment which included the effects of the not accepted rotator cuff injuries. The disability awards claims adjudicator recommended the petitioner be awarded a 5% PFI pension to reflect only those injuries accepted under the claim.

[10] On July 5, 2004, the Board issued its decision awarding the 5% PFI pension and denying a LOE pension.

[11] On July 23, 2004, the WCAT issued a decision on the petitioner’s appeals (the “First WCAT Decision”). The WCAT noted that the petitioner no longer disputed the plateau date. It concluded that the labral and/or rotator cuff tear were compensable consequences of the work injury. It confirmed the Board’s February 12, 2003 decision respecting vocational rehabilitation benefits.

[12] The WCAT was not persuaded that the petitioner was unemployable. It found the petitioner could work in jobs that met his physical restrictions including light bench assembly work but that driving jobs were beyond the petitioner’s physical ability. Finally, it directed the Board to use the one year immediately preceding the petitioner’s injury (April 22, 2001 to April 21, 2002) as a basis for calculating his average earnings (long-term wage rate).

[13] The petitioner did not seek reconsideration or judicial review of the First WCAT Decision. As a result, the finding that the Petitioner is not totally disabled from work and is capable of working within his physical restrictions stands as a final decision.

[14] On August 26, 2004, the Board recalculated the petitioner’s long-term average earnings or wage rate in accordance with the First WCAT Decision.

[15] On September 16, 2004, the Board revisited the petitioner’s pension determination. The Board found the petitioner was now entitled to a 14.54% PFI pension. The Board also adjusted the pension amount using the long-term wage rate set on August 26, 2004. Finally, the Board concluded that the petitioner could find work within his residual physical ability and restrictions paying in excess of $11.00 per hour that would enable him to replace his lost income. Therefore, he was not entitled to a LOE pension.

[16] On October 19, 2004, the Board revised the PFI pension to 15.49%. No LOE pension was awarded.

[17] On November 24, 2004 the petitioner sought a review of the Board’s August 26, 2004 long-term wage rate calculation decision.

[18] On January 18, 2005, the petitioner sought review of the October 19, 2004 Board decision.

[19] On April 22, 2005, the Review Division issued a decision regarding the Petitioner’s long-term wage rate. The Review Division varied the decision of August 26, 2004 altering the method of calculation and adjusting the average earnings figure downward.

[20] On April 28, 2005, the Review Division referred the calculation of vocational rehabilitation benefits to the Board to be recalculated using the wage rate that would result from the April 22, 2005 Review Division decision adjusting the average earnings figure.

[21] On May 20, 2005, the Review Division issued a decision directing the Board to reassess the pension wage rate based on the long-term wage rate in accordance with the April 22, 2005 Review Division decision. The Review Division also referred the LOE pension issue back to the Board with a direction to obtain labour market information to determine whether suitable employment was reasonably available and would produce earnings that would restore the petitioner’s earnings to pre-injury levels.

[22] On June 6, 2006, the Board provided the petitioner with a copy of a document entitled “Employability Assessment.” However, as noted in a memo dated June 14, 2006, this was not a full employability assessment, but simply the provision of the labour market information directed by the Review Division. The reason the Board gave for not doing a full employability assessment was because the WCAT, in the First WCAT Decision, had already determined what jobs were suitable for the petitioner within the petitioner’s residual physical abilities.

[23] In the Employability Assessment, the Board noted that the petitioner was unable to return to his pre-injury employment or to engage in any driving occupation. However, the Board also noted that the First WCAT Decision had found the petitioner capable of returning to suitable alternate employment such as dispatcher, light bench assembly worker or video store clerk and that such employment was available to the petitioner. The Employability Assessment provided labour market examples of such positions based on the Board’s research suggesting they would be available to the petitioner in the long term.

[24] On July 4, 2006, the Board issued an adjusted PFI pension decision letter.

[25] On July 18, 2006, the Board issued an amended decision as it had forgotten to reduce the adjusted PFI award by the amount already paid as a commuted sum. Further, the Board expressly determined that the petitioner was not entitled to a LOE pension.

[26] On October 2, 2006, the petitioner sought review of both the July 4 and July 18, 2006 decisions to the Review Division.

[27] On November 22, 2006, the petitioner provided a submission to the Review Division regarding the July 4 and July 18, 2006 decisions. The petitioner acknowledged that he did not dispute the effective pension date (plateau date), the percentage of PFI or the wage rate as finally established by the Board after the appellate decisions. It follows that the petitioner also had no issue with the PFI pension as determined by the Board. The only issue was entitlement to a LOE pension.

[28] The petitioner argued that the Board relied on earnings information for driving jobs that both the WCAT and the Review Division had determined were unsuitable. Second, the petitioner argued that the Board relied on earnings information for light assembly jobs garnered from statistical services with no specifics as to actual wages or availability. The petitioner raised a number of additional concerns regarding this job information.

[29] On January 31, 2007, the Review Division issued its decision. It found that First WCAT Decision had clearly determined that driving occupations were unsuitable. The Review Division also found there had been no new evidence that would warrant changing the WCAT’s finding of fact in the First WCAT Decision. Accordingly, the Review Division gave no weight to the Board’s reliance on labour market information related to driving occupations.

[30] However, the Review Division found that light assembly work fell within the petitioner’s residual physical capability and, in this regard, agreed with the First WCAT Decision. The Review Division went on to find, based on the labour market data obtained by the Board, that wages in such positions could restore or exceed the petitioner’s pre-injury earnings. The Review Division also found that these jobs were reasonably available to the petitioner.

[31] On March 1, 2007, the petitioner appealed the January 21, 2007 Review Division decision to the WCAT.

[32] The WCAT hearing took place on August 30, 2007. At the hearing the petitioner gave viva voce evidence to supplement the written record. He also provided some job search records.

[33] On September 6, 2007, the WCAT released their decision (the “Challenged Decision”). The WCAT panel stated the issue broadly as to whether the petitioner was entitled to be assessed for an LOE pension under section 23(3) of the Act. It noted that the PFI was assessed and not in dispute. What remained to be addressed was only the petitioner’s entitlement to an LOE pension. This broad issue turned on the narrow question of whether suitable jobs were reasonably available to the petitioner and whether they would pay enough over the long term to offset any loss of earnings suffered by the petitioner.

[34] The WCAT panel set out the applicable law and policy and reviewed the petitioner’s evidence concerning the petitioner’s limited efforts to seek work. The panel noted the petitioner’s perspective that he did not believe he could work because of pain. The WCAT panel was not persuaded that the petitioner could not do electronic bench assembly work.

[35] The panel noted that the First WCAT Decision had determined that the petitioner was only restricted from employment involving above shoulder work or work that exceeds light strength demands. The WCAT panel agreed with the Review Division and the First WCAT Decision that bench assembly work involving below the shoulder activity was suitable for the petitioner. The First WCAT Decision effectively decided this issue and it remained a conclusive determination.

[36] The WCAT panel then turned to the narrow issue before the panel being whether suitable jobs were reasonably available to the petitioner in the long term.

[37] The WCAT panel then reviewed the labour market information obtained by the Board as well as the statistical information regarding remuneration and concluded that suitable positions would be reasonably available to the petitioner in the long term.

[38] As a result, the WCAT panel concluded on the broad issue that the petitioner could restore his earning capacity in light bench assembly work and offset any loss of earnings. The panel held that electronic bench assembly work would be suitable and available to the petitioner and on this basis denied compensation under s. 23(3):

While I would prefer to have additional labour market information on which to base a decision concerning loss of earnings consideration, as well as more relevant labour market information which did not address employment opportunities previously excluded as being unsuitable for the worker, I conclude the evidence is sufficient to establish that employment in light bench assembly would be available to the worker over time.

[39] In the result, the petitioner’s appeal was denied. The WCAT confirmed that the petitioner was not entitled to a LOE pension because the petitioner could restore his earning capacity in light bench assembly work, and such work was both suitable and available.

STANDARD OF REVIEW

[40] The first task on an application for judicial review of a statutory tribunal is to identify the applicable standard of review. It is common ground that the Challenged Decision is to be reviewed pursuant to ss. 58(1) and (2a) of the Administrative Tribunals Act, S.B.C. 2004, c. 45 (the “ATA”), which reads as follows:

58(1) If the tribunal’s enabling Act contains a privative clause, relative to the courts the tribunal must be considered to be an expert tribunal in relation to all matters over which it has exclusive jurisdiction.

(2) In a judicial review proceeding relating to expert tribunals under subsection (1)

(a) a finding of fact or law or an exercise of discretion by the tribunal in respect of a matter over which it has exclusive jurisdiction under a privative clause must not be interfered with unless it is patently unreasonable.

[41] The point of contention is the meaning to be given to the term “patently unreasonable” in s. 58(2)(a) in light of the decision in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190. When the ATA was enacted, the common law provided three possible standards of judicial review: correctness, reasonableness and patent unreasonableness. In Dunsmuir, the Supreme Court of Canada determined that the distinction between “reasonableness” and “patently unreasonable” has proven difficult to apply in practice and combined those two standards into a single standard of review based on reasonableness.

[42] Since the decision in Dunsmuir to fuse the former standards of reasonableness and patent unreasonableness, there have been conflicting decisions in this court concerning the meaning to be given to “patently unreasonable” in s. 58 of the ATA: Howe v. 3770010 Canada Inc., 2008 BCSC 330, 74 Admin. L.R. (4th) 258, Carter v. Travelex Canada Ltd., 2008 BCSC 405,70 Admin. L.R. (4th) 88, Lavigne v. British Columbia (Workers Compensation Board), 2008 BCSC 1107, and British Columbia Securities Commission v. Burke, 2008 BCSC 1244, 297 D.L.R. (4th) 464. In Brown v. Residential Tenancy Act, 2008 BCSC 1538, Hinkson J. reviewed the above decisions, together with the decision of Macaulay J. in Evans v. University of British Columbia, 2008 BCSC 1026 which concerned s. 59 of the ATA and concluded that despite Dunsmuir, the three standards of review continue to be applicable on judicial review proceedings governed by the ATA. In particular, he held at paras 36-37 that Dunsmuir does not establish a new definition of “patent unreasonableness” and agreed with the reasoning of Macaulay J. in Evans, that Dunsmuir does not address legislative standards of review and that to import the definition of “reasonableness” from Dunsmuir into the ATA would be to ignore the clear legislative intent underlying s. 58 of the ATA.

[43] As restated in McCready v. Nanaimo (City), 2005 BCSC 762 at paras. 46-47, 46 B.C.L.R. (4th) 331, a trial judge should depart from the judgment of another judge of the same court only in the following circumstances:

(a) subsequent decisions have effected the validity of the impugned judgment;

(b) it is demonstrated that some binding authority in case law, or some relevant statute was not considered;

(c) the judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial judges, where the exigencies of the trial require an immediate decision without the opportunity to fully consult authorities; or

(d) the judgment was palpably wrong and based on a patent error of law or fact.

[44] In circumstances where there are conflicting decisions, the latter decision is to be preferred, if it is reached after full consideration of the earlier decisions: Jones v. New Westminster (City) (1981), 29 B.C.L.R. 252 (S.C.) at para. 15, rev’d on other grounds (1983), 148 D.L.R. (3d) 279 (B.C.C.A.). Where there are two conflicting decisions and the second decision is given in ignorance of the first, a judge is free to choose between the two decisions and should not start with any preference for one over the other: Niebuhr v. Vancouver (City) Board of Variance, 2006 BCSC 1425 at para. 38, 60 B.C.L.R (4th) 135, aff'd on other grounds, 2007 BCCA 528, 75 B.C.L.R. (4th) 27 (supp. reasons 2007 BCCA 593, 75 B.C.L.R. (4th) 34), leave to appeal to S.C.C. refused, [2008] S.C.C.A No. 3.

[45] The reason that trial judges should follow earlier decisions in their court was set out by Wilson J. in Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590 (B.C.S.C.) at 592:

I have no power to overrule a brother Judge, I can only differ from him, and the effect of my doing so is not to settle but rather to unsettle the law, because, following such a difference of opinion, the unhappy litigant is confronted with conflicting opinions emanating from the same Court and therefore of the same legal weight.

[46] Although the rule that a judge of this court should follow a prior decision is a discretionary rule of practice, it is one of long standing. The purpose of the rule is to bring certainty to the law. Therefore, I should follow Brown unless one of the McCready exceptions applies. To do otherwise would unsettle the law.

[47] Hinkson J.’s decision in Brown was reached after a full consideration of the relevant authorities. He considered the earlier conflicting decisions and chose between them. None of the exceptions apply and, accordingly, I intend to follow Brown and review the Challenged Decision on a standard of patent unreasonableness.

[48] Patent unreasonableness requires a court to show the highest degree of deference to a tribunal. The test was defined in Canada (Attorney General) v. Public Service Alliance, [1993] 1 S.C.R. 941 at 964:

It is not enough that the decision of the Board is wrong in the eyes of the court; it must, in order to be patently unreasonable, be found by the court to be clearly irrational.

POSITION OF THE PARTIES

[49] The petitioner submits that the Challenged Decision was patently unreasonable. In support of that conclusion, he submits that the evidence is incapable of supporting the tribunal’s findings of fact. He relies on s. 250(4) of the Act which requires the WCAT to find in favour of a worker in the face of equally weighted evidence on a point of fact. The petitioner submits that in order for the decision to survive judicial review, the court must find that, viewed reasonably, there was more evidence in support of the proposition that employment would be suitable and reasonably available to the petitioner than against this proposition. Anything less would lead to a conclusion that the decision was patently unreasonable.

[50] The respondent submits that the issue on this application is whether there was some evidence on the record on which a finding could be made that: (1) suitable employment was reasonably available to the petitioner over the long term; and (2) that such employment would restore the petitioner’s earnings to a pre-injury level such that he would suffer no loss of earnings. As long as there is some evidence in the record on which the Challenged Decision can rationally rest, it cannot be disturbed.

DISCUSSION

[51] The question of whether the petitioner is entitled to receive a LOE award is a matter which falls within the Board’s and, on appeal, the WCAT’s exclusive jurisdiction. Entitlement to an LOE award turns on the issue of the petitioner’s residual employability and diminution of earning capacity. This matter also falls within the Board’s and, on appeal, the WCAT’s exclusive jurisdiction. It is therefore not for this court on judicial review to determine whether the petitioner was or was not employable (and to what degree), whether his earning capacity was or was not diminished, or whether the petitioner was entitled to a LOE award.

[52] The petitioner must show that upon review of the evidence, there is no rational basis for the conclusion reached by the WCAT. In applying the standard of patent unreasonableness, I am not entitled to weigh and assess the evidence: Basura v. British Columbia (Workers Compensation Board), 2005 BCSC 407, at para. 34.

[53] In considering the decision under review, it is important to note that the First WCAT Decision, from which no reconsideration or judicial review had been sought, finally and conclusively determined that the petitioner has the capability to work in light occupations that did not require above the shoulder work. The issue of the petitioner’s residual physical capabilities is no longer in issue. To the extent that the panel in the Challenged Decision made a finding, it was only that electric bench level assembly work met the criteria of light assembly work, involving below shoulder work activities, as already determined in the earlier decision.

[54] The Challenged Decision determined that suitable employment was reasonably available to the petitioner over the long term and that this employment would restore the petitioner’s earning to a pre-injury level, such that he would suffer no loss of earnings.

[55] The issue for the court on this application is whether there is some evidence in the record on which such findings could be made. Sufficiency or insufficiency of that evidence is not a matter for this court to consider: Speckling v. British Columbia (Workers’ Compensation Board), 2005 BCCA 80 at para. 33, 46 B.C.L.R. (4th) 77.

[56] The record indicates that there was evidence of suitable jobs that were likely reasonably available over the long term. The WCAT panel was not persuaded by the petitioner’s evidence that the petitioner was unable to perform the work. While the WCAT said it would have liked additional evidence, it found the evidence sufficient to establish that employment in light bench assembly would be available to the worker over time. In reaching that decision, the panel considered and applied Board policy.

[57] There was a line of reasoning that took the WCAT from the evidence in the record to the outcome. There was a rational basis for the conclusion that the WCAT reached. The Challenged Decision is not patently unreasonable.

DISPOSITION

[58] The petition is dismissed.

COSTS

[59] As the respondent specifically did not seek costs, each party will pay their own costs.

“R.B.T. Goepel J.”
__________________________________
The Honourable Mr. Justice R.B.T. Goepel

Citation:	*Tallarico v. Workers’ Compensation Appeal Tribunal,*
	2009 BCSC 49