Naylor v. Workers' Compensation Board Appeals Commission (Alta.) et al., 2015 ABQB 333

• Judge: Lee, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 09, 2015
• Citations: 2015 ABQB 333;(2015), 617 A.R. 271 (QB)

Naylor v. WCBAC (2015), 617 A.R. 271 (QB)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. MY.127

Michael Naylor (appellant/applicant) v. The Appeals Commission for Alberta Workers' Compensation and the Workers' Compensation Board of Alberta (respondent)

(1403 04635; 2015 ABQB 333)

Indexed As: Naylor v. Workers' Compensation Board Appeals Commission (Alta.) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Lee, J.

May 22, 2015.

Summary:

On April 20, 2014, Naylor, a heavy duty mechanic, sustained a lower back injury at work, for which he received full wage loss benefits from the Workers' Compensation Board of Alberta (WCB) from April 27 to December 4, 2004. On August 20, 2008, it was determined that he sustained an aggravation of his pre-existing work related back injury. The WCB determined that his ongoing back problems were related to a compensable accident and he was declared not fit to return to his position as a heavy duty mechanic effective December 2004. He was employed from December 2004 to May 2006, during which time the WCB determined that he was capable of working as a gas station cashier, and temporary partial disability benefits were paid. He became employed as a lot attendant with an RV company in British Columbia from May 2006 to December 2009, and his benefits during that period were based on his actual earnings. A functional capacity evaluation confirmed that Naylor's work restrictions were permanent, and he was entitled to an ongoing economic loss payment (ELP) in accordance with the Alberta Workers' Compensation Act (WCA). The ELP's calculation was a comparative one where a worker's earnings at the date of the accident were compared to any post-accident earnings, either actual or deemed, and the difference was the injury related ELP. The WCB determined that Naylor was capable of working as a service writer in Canmore, Alberta, earning $40,000 per year effective December 1, 2009, which ELP was to be reviewed again in November 2012. In 2012, the WCB determined that his earnings had increased to $52,000 per year as a reflection of a service writer with three years' experience. The WCB also advised him that effective December 1, 2013, his estimated earnings as a service writer with four years' experience would be increased to $56,00 and then to $60,000 effective December 1, 2014. Naylor appealed the rulings, first to the Dispute Resolution and Decision Review Board and then to the Appeals Commission (AC). The AC heard the appeal de novo, and agreed with the WCB's decision respecting the ELP effective December 1, 2012, but rejected the decision respecting the ELP for 2013 and 2014, noting that it was unreasonable to implement a reduction plan on a prospective basis. Naylor appealed, asserting that the AC's decision was unreasonable as it failed to explain and/or justify how he could be expected to have three years' experience in an employment position when he was not employed in any such position. He also asserted that he was denied procedural fairness as (1) he had no notice that the application and interpretation of s. 63 of the WCA ("Determining impairment of earning capacity") was relevant to the appeal, and was therefore unaware of the case he had to meet; and (2) the AC considered and relied upon the WCB's Business Procedures without providing him notice that the Procedures would be considered, and without providing for him to make submissions regarding the Procedures.

The Alberta Court of Queen's Bench dismissed the appeal stating that "... I conclude that the interpretation and application of section 63 of the WCA by the AC was reasonable. Further AC's decision explaining and justifying how the Applicant could be expected to have three years' experience in an employment position when he was not actually employed in such a position was also reasonable. As for the AC's hearing and resulting decision, I conclude that it was procedurally fair and complied with the rules of natural justice notwithstanding that there was no formal notice that section 63 of the WCA would be applied, and notwithstanding the AC mentioned the WCB Business Procedures."

Workers' Compensation - Topic 5513

Compensation - General - Re-employment (incl. assessment of functional ability) - See paragraphs 5 to 14.

Workers' Compensation - Topic 5623

Compensation - Measure of - Method of calculation - See paragraphs 5 to 14.

Workers' Compensation - Topic 5624.5

Compensation - Measure of - Considerations - "Ability to earn wages" - See paragraphs 5 to 14.

Workers' Compensation - Topic 6943

Practice - Hearing - Procedural fairness - See paragraphs 15 to 27.

Counsel:

Kenneth W. Penonzek, for the appellant;

Dale Wispinski, for the Appeals Commission;

Curtis Craig, for the Workers' Compensation Board, the respondent.

This appeal was heard on January 9, 2015, by Lee, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on May 22, 2015.