Lewis v. Workers' Compensation Board (Sask.), (2004) 246 Sask.R. 27 (QB)

• Judge: Baynton, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: March 03, 2004
• Jurisdiction: Saskatchewan
• Citations: (2004), 246 Sask.R. 27 (QB);2004 SKQB 85

Lewis v. WCB (2004), 246 Sask.R. 27 (QB)

MLB headnote and full text

Temp. Cite: [2004] Sask.R. TBEd. MR.036

Ronald Samuel Lewis (applicant) v. Workers' Compensation Board of Saskatchewan (respondent)

(2003 Q.B.G. No. 2083; 2004 SKQB 85)

Indexed As: Lewis v. Workers' Compensation Board (Sask.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Baynton, J.

March 3, 2004.

Summary:

Lewis injured his back at work in 1975. He had back surgery in 1976. The Workers' Compensation Board (WCB) determined that Lewis' permanent partial disability was five percent. In 1997, a medical review panel (MRP) declined to vary that rating. In 1999, Lewis received medical information that his alleged ongoing pain was caused by scar tissue from the surgery (failed back surgery syndrome). Lewis presented that information to the WCB. Decisions of the WCB in 1999 and 2000 declined to vary the MRP's decision and in 2002 the WCB declined to review or reconsider its earlier decisions. Lewis sought to quash the decision of the 1997 MRP and the WCB's 2002 decision. He also sought an order of mandamus to compel the WCB to grant him full benefits from the date of his injury in 1975. Alternatively, he sought mandamus to require the WCB to review his file in light of the new medical evidence or to require the WCB to provide a new MRP to determine the degree of his disability considering the information regarding the failed back surgery syndrome.

The Saskatchewan Court of Queen's Bench held that the WCB's refusal to provide Lewis with a second MRP was patently unreasonable. The medical information regarding the failed back surgery syndrome constituted a new issue and new evidence that was not available to the 1997 MRP. The court ordered the WCB to provide a second MRP to determine Lewis' disability rating in light of all of the evidence including the new medical information.

Administrative Law - Topic 3306

Judicial review - General - Bars - Delay - [See Workers' Compensation - Topic 7128 ].

Workers' Compensation - Topic 6886

Practice - Medical exam - Medical review panel - Establishment of - Lewis injured his back at work in 1975 - He had back surgery in 1976 - The Workers' Compensation Board (WCB) determined that Lewis' permanent partial disability was five percent - In 1997, a medical review panel (MRP) declined to vary that rating - In 1999, Lewis received medical information that his alleged ongoing pain was caused by scar tissue from the surgery (failed back surgery syndrome) - Lewis presented that information to the WCB - Decisions of the WCB in 1999 and 2000 declined to vary the MRP's decision and in 2002 the WCB declined to review or reconsider its earlier decisions - On an application for judicial review, the Saskatchewan Court of Queen's Bench held that the WCB's refusal to provide Lewis with a second MRP was patently unreasonable - The medical information regarding the failed back surgery syndrome constituted a new issue and new evidence that was not available to the 1997 MRP - The court ordered the WCB to provide a second MRP to determine Lewis' disability rating in light of all of the evidence including the new medical information.

Workers' Compensation - Topic 7128

Practice - Judicial review - Time for - Lewis injured his back at work in 1975 - He had back surgery in 1976 - The Workers' Compensation Board (WCB) determined that his permanent partial disability was five percent - In 1997, a medical review panel (MRP) declined to vary that rating - In 1999, Lewis received medical information that his alleged ongoing pain was caused by scar tissue from the surgery (failed back surgery syndrome) - Lewis presented that information to the WCB - Decisions of the WCB in 1999 and 2000 declined to vary the decision of the 1997 MRP and a 2002 decision of the WCB declined to review or reconsider its earlier decisions - Lewis applied for judicial review - The Saskatchewan Court of Queen's Bench held that the application should not be dismissed for delay even though four years had passed since the failed back surgery issue was raised by Lewis and over a year had elapsed between Lewis' last written request to the WCB and his application - Lewis advised the WCB of the new issue in 1999 and he had consistently tried to induce the WCB to review his claim in light of the new information - See paragraph 25.

Cases Noticed:

Lyne v. Workers' Compensation Board (Sask.), [1998] 2 W.W.R. 470; 155 Sask.R. 309 (Q.B.), dist. [para. 22].

Sieben v. Workers' Compensation Board (Sask.) (1998), 166 Sask.R. 233 (Q.B.), consd. [para. 23].

Counsel:

Anne M. Wallace, Q.C., for the applicant, Ronald Lewis;

Wayne P. Dale, for the respondent, Workers' Compensation Board of Saskatchewan.

This application was heard before Baynton, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following decision on March 3, 2004.