Tompkins v. Workers' Compensation Board Appeals Commission (Alta.), 2012 ABQB 783

JudgeGates, J.
CourtCourt of Queen's Bench of Alberta (Canada)
Case DateNovember 01, 2012
Citations2012 ABQB 783;(2012), 555 A.R. 44 (QB)

Tompkins v. WCBAC (2012), 555 A.R. 44 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. JA.073

In The Matter Of The Workers' Compensation Act, being Chapter W-15 of the Revised Statutes of Alberta, 2000, and Amendments thereto;

And In The Matter Of the Certain Decision of the Appeals Commission dated the 29th day of May, 2006

Bruce Tompkins (applicant) v. Alberta (Workers' Compensation Act, Appeals Commission)

(respondent)

(0603 14897; 2012 ABQB 783)

Indexed As: Tompkins v. Workers' Compensation Board Appeals Commission (Alta.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Gates, J.

December 21, 2012.

Summary:

In 1975, Tompkins suffered a scalp laceration while at work. He received workers' compensation benefits for nine days. By 2002, Tompkins had been diagnosed with degenerative arthritis of the cervical spine. He asked the Workers' Compensation Board to reopen his claim, asserting that the 1975 injury had caused his arthritis. Tompkins was interviewed and examined by a medical review panel who concluded that the 1975 injury was not a significant factor that predisposed Tompkins to the development of arthritis. The Decision Review Board concluded that a probable relationship between the accident and the arthritis had not been established. Tompkins appealed. The Appeals Commission denied the appeal, finding that the accident did not contribute to or cause the arthritis. Tompkins applied for judicial review.

The Alberta Court of Queen's Bench dismissed the application.

Torts - Topic 54

Negligence - Causation - Test for (incl. ''but for'' test and ''material contribution'' test) - [See both Workers' Compensation - Topic 5604 ].

Workers' Compensation - Topic 5604

Compensation - Compensable injuries and disabilities - Causation - In 1975, Tompkins suffered a scalp laceration while at work - He received workers' compensation benefits for nine days - By 2002, Tompkins had been diagnosed with degenerative arthritis of the cervical spine - He asked the Workers' Compensation Board (WCB) to reopen his claim, asserting that the 1975 injury had caused his arthritis - Tompkins was interviewed and examined by a medical review panel who concluded that the 1975 injury was not a significant factor that predisposed Tompkins to the development of arthritis - The Appeals Commission (AC) denied Tompkins' appeal, finding that the accident did not contribute to or cause the arthritis - Tompkins applied for judicial review, arguing that the AC should have applied a causation test that asked whether there was anything beyond a de minimus connection between the accident and the arthritis - Tompkins relied on Shuchuk (2007 Alta. C.A.), where Ritter, J.A., stated that there was nothing in the WCB's entitlement policies that required anything beyond a de minimus connection - The Alberta Court of Queen's Bench dismissed the application - Ritter, J.A.'s statement was simply an observation that the WCB's policies did not mandate a stricter approach on causation than was provided in the common law - It was not a broad pronouncement on the causation test to be applied in all cases - Even assuming that only something slightly more than a de minimus connection was required, there was nothing to suggest that the AC was of the view that such a relationship existed in this case - See paragraphs 76 to 82.

Workers' Compensation - Topic 5604

Compensation - Compensable injuries and disabilities - Causation - The Alberta Court of Queen's Bench reviewed the leading jurisprudence on the causation test in tort law - See paragraphs 56 to 60, 80 and 81.

Workers' Compensation - Topic 6965

Practice - Decision of board - Effect of decision of medical review committee - [See Workers' Compensation - Topic 7008 ].

Workers' Compensation - Topic 7008

Practice - Appeals - Review of board's decision by an appeal board or by the courts - Evidence and proof - In 1975, Tompkins suffered a scalp laceration while at work - He received workers' compensation benefits for nine days - By 2002, Tompkins had been diagnosed with degenerative arthritis of the cervical spine - He asked the Workers' Compensation Board to reopen his claim, asserting that the 1975 injury had caused his arthritis - Tompkins was interviewed and examined by a medical review panel who concluded that the 1975 injury was not a significant factor that predisposed Tompkins to the development of arthritis - The Appeals Commission (AC) denied Tompkins' appeal, finding that the accident did not contribute to or cause the arthritis - Tompkins applied for judicial review, arguing that the AC erred in adopting the medical panel's findings without undertaking any legal analysis or making a legal determination - The Alberta Court of Queen's Bench dismissed the application - The AC evaluated the relationship between the arthritis and the accident - It accepted the findings of the medical panel as it was bound to do (Workers' Compensation Act, s. 46.1(5)) - There was no suggestion that the AC felt that the evidence equally supported findings of entitlement and no entitlement, let alone met Tompkins' burden to establish entitlement on a balance of probabilities - The AC's conclusion was clearly within the range of acceptable outcomes - See paragraphs 61 to 75.

Cases Noticed:

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. 29].

Buckley et al. v. Entz Estate et al. (2007), 401 A.R. 231; 391 W.A.C. 231; 2007 ABCA 7, refd to. [para. 29].

Workers' Compensation Board (Alta.) v. Workers' Compensation Board Appeals Commission (Alta.) et al. (2010), 504 A.R. 79; 2010 ABQB 368, refd to. [para. 29].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 29].

Melanson v. Workers' Compensation Board Appeals Commission (Alta.) et al. (2011), 511 A.R. 178; 2011 ABQB 367, refd to. [para. 29].

Kovach v. Workers' Compensation Board (B.C.) et al. (1998), 108 B.C.A.C. 283; 176 W.A.C. 283; 52 B.C.L.R.(3d) 98 (C.A.), revd. [2000] 1 S.C.R. 55; 251 N.R. 356; 133 B.C.A.C. 85; 217 W.A.C. 85; 2000 SCC 3, refd to. [para. 30].

Thompson Brothers (Construction) Ltd. v. Workers' Compensation Board Appeals Commission (Alta.) et al. (2012), 522 A.R. 18; 544 W.A.C. 18; 2012 ABCA 78, refd to. [para. 31].

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. 31].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 31].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 424 N.R. 220; 2011 SCC 62, refd to. [para. 32].

Shuchuk v. Workers' Compensation Board Appeals Commission (Alta.) (2007), 409 A.R. 321; 402 W.A.C. 321; 2007 ABCA 213, consd. [para. 35].

Decision No.: 2009-928, 2009 CanLII 57016 (Alta. W.C.A.C.), refd to. [para. 40].

Decision No.: 2009-722, 2009 CanLII 57367 (Alta. W.C.A.C.), refd to. [para. 40].

Decision No.: 2009-515, 2009 CanLII 61352 (Alta. W.C.A.C.), refd to. [para. 40].

Decision No.: 2012-232, 2012 CanLII 13521 (Alta. W.C.A.C.), refd to. [para. 40].

Decision No.: 2010-823, 2010 CanLII 65346 (Alta. W.C.A.C.), refd to. [para. 40].

Decision No.: 2012-187, 2012 CanLII 12804 (Alta. W.C.A.C.), refd to. [para. 40].

Decision No.: 2011-457, 2011 CanLII 32960 (Alta. W.C.A.C.), refd to. [para. 40].

Decision No.: 2008-261, 2008 CanLII 86591 (Alta. W.C.A.C.), refd to. [para. 40].

Decision No.: 2011-785, 2011 CanLII 54564 (Alta. W.C.A.C.), refd to. [para. 40].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 43].

Hanke v. Resurfice Corp. et al., [2007] 1 S.C.R. 333; 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333; 2007 SCC 7, refd to. [para. 43].

Clements v. Clements (2012), 431 N.R. 198; 2012 SCC 32, refd to. [para. 43].

Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc., [2011] 3 S.C.R. 616; 423 N.R. 95; 275 Man.R.(2d) 16; 538 W.A.C. 16; 2011 SCC 59, refd to. [para. 45].

Canada (Attorney General) v. P.P.G. Industries Canada Ltd. and Pilkington Brothers (Canada) Ltd., [1976] 2 S.C.R. 739; 7 N.R. 209, refd to. [para. 50].

Strachan v. Edmonton (City) (2003), 349 A.R. 289; 2003 ABQB 309, refd to. [para. 50].

Bonnington Castings Ltd. v. Wardlaw, [1956] 1 All E.R. 615 (H.L.), refd to. [para. 57].

Counsel:

Johannes H. Schenk, for the applicant;

William P. Ostapek, for the WCB;

Sandra Hermiston, for the Appeals Commission.

This application for judicial review was heard on November 1, 2012, before Gates, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on December 21, 2012.

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2 practice notes
  • Boyd v. Workers' Compensation Board (Alta.) et al., 2015 ABCA 380
    • Canada
    • Court of Appeal (Alberta)
    • December 14, 2015
    ...2 S.C.R. 3 ; 470 N.R. 1 ; 2015 SCC 16 , refd to. [para. 57]. Tompkins v. Workers' Compensation Board Appeals Commission (Alta.) (2012), 555 A.R. 44; 2012 ABQB 783 , refd to. [para. Lehigh Inland Cement Ltd. v. Cement, Lime, Gypsum & Allied Workers Division of the International Brothe......
  • Boyd v. Workers' Compensation Board (Alta.) et al., 2014 ABQB 433
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • March 18, 2014
    ...; 29 Admin. L.R.(5th) 321 ; 2011 ABCA 323 , refd to. [para. 70]. Tompkins v. Workers' Compensation Board Appeals Commission (Alta.) (2012), 555 A.R. 44; 2012 ABQB 783 , refd to. [para. Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3......
2 cases
  • Boyd v. Workers' Compensation Board (Alta.) et al., 2015 ABCA 380
    • Canada
    • Court of Appeal (Alberta)
    • December 14, 2015
    ...2 S.C.R. 3 ; 470 N.R. 1 ; 2015 SCC 16 , refd to. [para. 57]. Tompkins v. Workers' Compensation Board Appeals Commission (Alta.) (2012), 555 A.R. 44; 2012 ABQB 783 , refd to. [para. Lehigh Inland Cement Ltd. v. Cement, Lime, Gypsum & Allied Workers Division of the International Brothe......
  • Boyd v. Workers' Compensation Board (Alta.) et al., 2014 ABQB 433
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • March 18, 2014
    ...; 29 Admin. L.R.(5th) 321 ; 2011 ABCA 323 , refd to. [para. 70]. Tompkins v. Workers' Compensation Board Appeals Commission (Alta.) (2012), 555 A.R. 44; 2012 ABQB 783 , refd to. [para. Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3......

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