Patrus v. Workers' Compensation Board (Alta.) et al.,

• Judge: Clark, J.
• Neutral Citation: 2011 ABQB 523
• Citation: 2011 ABQB 523,(2011), 527 A.R. 105 (QB),[1983] 2 WWR 8,23 Alta LR (2d) 141,41 AR 277,[1982] AJ No 686 (QL),527 AR 105,(2011), 527 AR 105 (QB),[1982] A.J. No 686 (QL),527 A.R. 105
• Date: 16 February 2011
• Court: Court of Queen's Bench of Alberta (Canada)

Patrus v. WCB (2011), 527 A.R. 105 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. OC.081

Tony Patrus (appellant) v. The Workers' Compensation Board and The Appeals Commission for the Alberta Workers' Compensation Board (respondents)

(0901 13580; 2011 ABQB 523)

Indexed As: Patrus v. Workers' Compensation Board (Alta.) et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Clark, J.

August 23, 2011.

Summary:

Patrus' left hand was amputated at work while operating a saw. His hand was surgically reattached, but despite two years of rehabilitation and follow-up surgeries, Patrus never regained much use of it. At the time of the accident, Patrus was engaged in unskilled manual labour, the only kind of work he was qualified to do (significant cognitive disabilities and psychological difficulties). The Appeals Commission (AC) for the Alberta Workers' Compensation Board (WCB): (1) upheld the WCB's finding that Patrus was employable and not entitled to temporary total disability benefits effective September 23, 2006; (2) rejected the WCB's finding that he was employable as a video store clerk; (3) remitted the matter back to the WCB, directing that the WCB identify a suitable job based on Patrus's ability; and (4) by way of interim relief, ordered that Patrus's post-accident earning capacity be based on minimum wage. Patrus appealed the finding of employability generally, the remitting of the matter back to the WCB, and the interim order.

The Alberta Court of Queen's Bench allowed the appeal except to the limited extent that the AC determined that Patrus was not capable of performing the duties of a video store clerk. That portion of the AC's decision was confirmed. The matter was referred back to the AC for reconsideration in accordance with the court's reasons and directions.

Workers' Compensation - Topic 63

General principles - Interpretation - Statutory policies and programs - [See both Workers' Compensation - Topic 5837 ].

Workers' Compensation - Topic 5609

Compensation - Compensable injuries and disabilities - Temporary total disability - [See both Workers' Compensation - Topic 5837 ].

Workers' Compensation - Topic 5837

Compensation - Termination - Where worker is no longer impaired as a result of the injury - The appellant's left hand was amputated at work while operating a saw - His hand was surgically reattached, but despite two years of rehabilitation and follow-up surgeries, he never regained much use of it - At the time of the accident, the appellant was engaged in unskilled manual labour, the only kind of work he was qualified to do (significant cognitive disabilities and psychological difficulties) - In the decision under appeal, the Appeals Commission (AC) for the Alberta Workers' Compensation Board (WCB) upheld the Board's finding that the appellant was employable - With respect to eligibility for temporary total disability (TTD) benefits, the AC decided that, pursuant to WCB Policy 04-02, the appellant's attributes and disabilities apart from those directly related to the accident were not relevant considerations - The Alberta Court of Queen's Bench stated that, to understand Policy 04-02, it was necessary to consider the definition of "suitable employment" in Policy 04-04 - "In other words, employment is only 'suitable' if the worker can perform it, considering the whole person, not just the accident-related injury ... The AC's reasons ... all focus on 'medical evidence' and 'compensable work restrictions' ... The AC simply gives no reason in this section of its decision for its conclusion that '[c]onsiderations such as cognitive abilities and academic background are not relevant considerations in determining whether or not the worker is entitled to TTD.' Accordingly, with respect to this issue, the reasons must fail the test of justification, transparency, and intelligibility" - In summary, in interpreting Policy 04-02, the AC adopted the wrong legal test, erring in law - As there were no reasons given in the AC's decision to support such an interpretation, that error was unreasonable - See paragraphs 51 to 60.

Workers' Compensation - Topic 5837

Compensation - Termination - Where worker is no longer impaired as a result of the injury - The appellant's left hand was amputated at work while operating a saw - His hand was surgically reattached, but despite two years of rehabilitation and follow-up surgeries, he never regained much use of it - At the time of the accident, the appellant was engaged in unskilled manual labour, the only kind of work he was qualified to do (significant cognitive disabilities and psychological difficulties) - In the decision under appeal, the Appeals Commission (AC) for the Alberta Workers' Compensation Board (WCB) upheld the Board's finding that the appellant was fit to return to work - The appellant had provided evidence to the AC that he had been granted benefits under the Assured Income for the Severely Handicapped Act (AISH benefits) - The AC dismissed the fact that the appellant was eligible for AISH benefits as not relevant to a determination of entitlement to temporary total disability (TTD) benefits - The Alberta Court of Queen's Bench stated that "[A] finding by an AISH appeal panel is not binding as such on the WCB or the AC. In that sense, it would not have been unreasonable for the AC not to adopt it. However, that is not the reason the AC dismissed this evidence" - Its interpretation of the applicable WCB policy was that such considerations were not relevant to the determination of eligibility for TTD benefits - That was an unreasonable interpretation of the policy - See paragraphs 61 to 66.

Workers' Compensation - Topic 7082

Practice - Appeals to the courts - Question of law or jurisdiction - The Alberta Court of Queen's Bench considered whether the appellant had proceeded in the correct manner by initiating this appeal pursuant to s. 13.4 of the Workers' Compensation Act (WCA), instead of seeking judicial review - This required the court to consider the statutory authority for the appeal and to characterize the decision maker and the decision to determine what kinds of issues were raised - "Section 13.4 (1) of the WCA provides an appeal from a decision of the AC [Appeals Commission] lies to this Court only on questions of law or jurisdiction. The Court of Appeal has confirmed that questions of fact and of mixed fact and law must be heard by way of judicial review rather than by a section 13.4 appeal" - In the end result, the court found that the appeal did raise questions of law, and therefore concluded that a s. 13.4 appeal was the correct avenue for the appellant to pursue - Moreover, even if the respondents were right to the extent that part of the complaint was of a factual nature, the appellant continued to have the right to launch an appeal under the statute because of the errors of law - See paragraphs 9 to 15.

Workers' Compensation - Topic 7082

Practice - Appeals to the courts - Question of law or jurisdiction - The appellant, instead of seeking judicial review, argued that the Appeals Commission (AC) decision under appeal was based on errors of law and/or jurisdiction and was therefore subject to appeal to the court, pursuant to s. 13.4 of Alberta's Workers' Compensation Act - The three grounds of appeal were: (1) that it was an error of law or a failure to exercise jurisdiction to refuse to consider his reduced cognitive abilities, language deficits, and learning and academic background in determining whether or not he was capable of competitive employment; (2) that it was an error of law or a failure to properly exercise jurisdiction when the AC refused to consider evidence that the appellant had been granted assured income for the severely handicapped by the Alberta government; and (3) that it was an error in law to find that he was capable of other suitable work when that finding was unreasonable based on the evidence - The Alberta Court of Queen's Bench concluded that a s. 13.4 appeal was the correct avenue for the appellant to pursue - "The first two grounds of appeal, which are closely related, raise issues related to the interpretation of WCB compensation policies and the correct legal test for determining whether one is capable of employment for the purposes of those policies. These are questions of law, but not of jurisdiction. The third ground of appeal, attacking as it does the finding of employability itself, is on its face a question of mixed fact and law. However, if, on the evidence before the AC, such a finding was not one that could reasonably have been made, then an error of law occurred and this ground therefore also raises a question of law" - See paragraphs 16 to 44.

Workers' Compensation - Topic 7082

Practice - Appeals to the courts - Question of law or jurisdiction - The Alberta Court of Queen's Bench held that this appeal pursuant to s. 13.4 of the Workers' Compensation Act was the appropriate course of action, instead of seeking judicial review - However, "[i]f this had turned out to be a case that should have been commenced by judicial review instead of an appeal, it would have been an appropriate case for the application of Rule 3.2(6) or some other curative amendment ... It would not have been appropriate, in my view, to let an otherwise meritorious claim fail because of confusion over the correct form of the application" - In any event, no one had been prejudiced by commencing the proceedings as an appeal, and the limitation period for a s. 13.4 appeal was the same as that for judicial review - See paragraphs 45 and 46.

Workers' Compensation - Topic 7085

Practice - Appeals to the courts - Error or question of law - [See all Workers' Compensation - Topic 7082 ].

Workers' Compensation - Topic 7121

Practice - Judicial review - General (incl. when available) - [See all Workers' Compensation - Topic 7082 ].

Cases Noticed:

Sarcee Gravel Products Inc. v. Workers' Compensation Board (Alta.) et al. (2006), 394 A.R. 74; 2006 ABQB 56, refd to. [para. 9].

Workers' Compensation Board (Alta.) v. Workers' Compensation Board Appeals Commission (Alta.) (2005), 371 A.R. 318; 354 W.A.C. 318; 2005 ABCA 276, refd to. [para. 11].

Buckley et al. v. Entz Estate et al. (2007), 401 A.R. 231; 391 W.A.C. 231; 71 Alta. L.R.(4th) 25; 2007 ABCA 7, refd to. [para. 11].

Lee v. Workers' Compensation Board (Alta.) et al. (2007), 417 A.R. 370; 410 W.A.C. 370; 2007 ABCA 225, refd to. [para. 11].

White v. Workers' Compensation Board Appeals Commission (Alta.) (2006), 400 A.R. 183; 2006 ABQB 359, refd to. [para. 12].

Foster v. Transportation and Safety Board (Alta.) (2006), 397 A.R. 82; 384 W.A.C. 82; 2006 ABCA 282, refd to. [para. 12].

Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 26 N.R. 364; 96 D.L.R.(3d) 14, refd to. [para. 13].

Merchant v. Law Society of Alberta (2008), 440 A.R. 377; 438 W.A.C. 377; 2008 ABCA 363, refd to. [para. 14].

Gahir v. Workers' Compensation Board Appeals Commission (Alta.) et al. (2009), 448 A.R. 135; 447 W.A.C. 135; 2009 ABCA 59, refd to. [para. 20].

Workers' Compensation Board (Alta.) v. Workers' Compensation Board Appeals Commission (Alta.) et al. (2005), 371 A.R. 62; 354 W.A.C. 62; 2005 ABCA 235, refd to. [para. 21].

R. v. International Vacations Ltd. (1980), 33 O.R.(2d) 327; 124 D.L.R.(3d) 319 (C.A.), refd to. [para. 23].

Alberta Giftwares Ltd. v. R., [1974] S.C.R. 584; 36 D.L.R.(3d) 321, refd to. [para. 23].

Guy v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2008), 261 N.S.R.(2d) 89; 835 A.P.R. 89; 68 Admin. L.R.(4th) 314; 2008 NSCA 1, refd to. [para. 23].

Shuchuk v. Workers' Compensation Board Appeals Commission (Alta.) (2007), 409 A.R. 321; 402 W.A.C. 321; 2007 ABCA 213, refd to. [para. 23].

Halifax Employers' Association v. Workers' Compensation Appeals Tribunal (N.S.) et al., 2000 NSCA 86, refd to. [para. 24].

Elgie v. Workers' Compensation Board Appeals Commission (Alta.) et al. (2009), 464 A.R. 127; 467 W.A.C. 127; 2009 ABCA 277, refd to. [para. 26].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20; 144 D.L.R.(4th) 1, refd to. [para. 27].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 28].

Pezim v. British Columbia Securities Commission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1; 114 D.L.R.(4th) 385, refd to. [para. 30].

Wood v. Wood (1874), L.R. 9 Ex. 190, refd to. [para. 32].

Desjardins v. Bouchard, [1976] 2 F.C. 539; 71 D.L.R.(3d) 491, refd to. [para. 32].

Canadian Cable Television Association v. American College Sports Collective of Canada Inc., [1991] 3 F.C. 626; 129 N.R. 296; 81 D.L.R.(4th) 376 (C.A.), refd to. [para. 32].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 34].

E.B. v. Order of the Oblates of Mary Immaculate (B.C.) et al., [2005] 3 S.C.R. 45; 340 N.R. 202; 217 B.C.A.C. 1; 358 W.A.C. 1; 2005 SCC 60, refd to. [para. 39].

Cape Breton Development Corp. et al. v. Penny (1977), 20 N.S.R.(2d) 292; 27 A.P.R. 292; 76 D.L.R.(3d) 186 (C.A.), refd to. [para. 40].

Edwards (Inspector of Taxes) v. Bairstow, [1956] A.C. 14; [1955] 3 All E.R. 48 (H.L.), refd to. [para. 41].

Canadian Lift Truck Co. v. Deputy Minister of National Revenue, [1956] 1 D.L.R.(2d) 497, refd to. [para. 41].

Chauvet et al. v. Workers' Compensation Board Appeals Commission (Alta.) et al. (2007), 409 A.R. 17; 402 W.A.C. 17; 76 Alta. L.R.(4th) 242; 2007 ABCA 155, refd to. [para. 45].

JT Tax Consulting Ltd. v. Calgary (City) et al. (2011), 523 A.R. 263; 2011 ABQB 503, refd to. [para. 46].

Precision Drilling Corp. v. Calgary (City) - see JT Tax Consulting Ltd. v. Calgary (City) et al.

Halliburton Group Canada Inc. v. Alberta (Minister of Finance) (2009), 481 A.R. 72; 2009 ABQB 420, refd to. [para. 46].

Lewis v. Pincher Creek No. 9 (Municipal District) (2005), 375 A.R. 331; 2005 ABQB 201, refd to. [para. 46].

Alberta Union of Provincial Employees v. Alberta et al. (2002), 310 A.R. 240 (Q.B.), refd to. [para. 46].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 47].

Dr. Q. v. College of Physicians and Surgeons of British Columbia - see Dr. Q., Re.

Watson v. Workers' Compensation Board (Alta.) et al. (2010), 491 A.R. 307; 2010 ABQB 280, refd to. [para. 78].

Statutes Noticed:

Judicature Act, R.S.A. 2000, c. J-2, sect. 8 [para. 45].

Rules of Court (Alta.) (2010), rule 3.2(6) [para. 45].

Authors and Works Noticed:

Jones, David, and de Villars, Anne, Principles of Administrative Law (5th Ed. 2009), p. 621-6 [para. 13].

Wade, H.W.R., and Forsyth, C.F., Administrative Law (10th Ed. 2009), pp. 214 [para. 35]; 794 [para. 37].

Woolf, Harry, Jowell, Jeffrey, and Le Sueur, Andrew, De Smith's Judicial Review (6th Ed. 2007), para. 11-052 [para. 40].

Counsel:

Brian E. Devlin, Q.C. (O'Brien Devlin MacLeod) for the appellant;

Ron C. Goltz (Worker's Compensation Board), for the respondent, The Worker's Compensation Board;

Sandra R. Hermiston (Appeals Commission for Alberta Worker's Compensation), for the respondent, The Appeals Commission for Alberta Worker's Compensation.

This statutory appeal was heard on February 16, 2011, before Clark, J., of the Alberta Court of Queen's Bench, who delivered the following judgment and reasons for judgment, dated at Calgary, Alberta, on August 23, 2011.