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Decision No: 2012-34, 2012 CanLII 666 (AB WCAC)

Date:
2012-01-11
File number:
34125
Citation:
Decision No: 2012-34, 2012 CanLII 666 (AB WCAC), <https://canlii.ca/t/fpmd3>, retrieved on 2024-03-29

Appeals Commission

for

Alberta Workers’ Compensation

 

 

Docket No.: 34125

Decision No.:  2012-34

 

Introduction

[1]                  The Appeals Commission issued a decision on July 16, 2010 that decided two issues of appeal affecting the worker.  In relation to his December 8, 2004 accident, it found that his back symptoms were not the result of his accident injuries and it determined that he was capable of sedentary employment as a parking lot attendant.

[2]                  On September 27, 2011 the Appeals Commission received a request from the worker that it reconsider the question of whether the position of parking lot attendant was within the worker’s ability.

[3]                  In support of the reconsideration request, the worker’s representative wrote:

“[The worker] was not successful in pursuing his appeal relating to the ability to work as a parking lot attendant (8.50 x 40) from May 24, 2008.

In the July 16, 2010 Appeals Commission decision paragraph (68) the Hearing Chair stated:

‘If the worker is unable to pursue that employment at this point in time it is due to his non-compensable back or other non-compensable conditions.’

Under the new evidence Policy 01-08 (1.0 (appeal findings)), [the worker] is requesting a reconsideration of this decision.

I would reference Court of Queen’s Bench decision #2011 ABQB 523 (enclosed).  Interpretation of the court regarding suitable employment see paragraph [85](1).

Please review and advise.”

[4]                  The argument incorporates by reference the August 2011 decision of the Court of Queen’s Bench of Alberta in Patrus v Alberta (Workers’ Compensation Board, Appeals Commission) 2011 ABQB 523 (Patrus).


[5]                  Paragraph 85(1) of the Patrus decision, states:

“(1) in accordance with the definition of “suitable employment”, the AC is directed to consider all relevant attributes of the Appellant when determining whether he is capable of suitable employment, not just limitations related to the accident.  This is relevant for determining TTD and other benefits.”

[6]                  The worker suggested that by comparing paragraph 85 of the Patrus decision with paragraph 68 of the Appeals Commission decision that it could be concluded the criteria adopted by the court to determine the suitability of work is different than the criteria used by the 2010 panel. 

[7]                  Essentially, the worker argues that the court overruled the panel by adopting a different and expanded criteria for determining work suitability.  The criteria expressed by the court in Patrus should be retroactively applied says the worker and his appeal reconsidered on the basis of that criteria.

[8]                  The worker also argues that by virtue of Policy 01-08, the Patrus decision is an appeal finding and therefore by policy definition “new evidence” which meets the criteria for reconsideration established in Appeal Rule 5.5 (3).

Issue(s)

[9]                  In order to decide the worker’s request for reconsideration we must consider two questions:

[9.1]              Issue 1:  Does the Patrus decision have retroactive effect?

[9.2]              Issue 2:  Does the Patrus decision constitute new evidence?

Analysis – Issue 1

[10]               Does the Patrus decision have retroactive effect?

Legislation and Policy

[11]               Section 13.1(7) of the Workers' Compensation Act, R.S.A. 2000, c. W-15 (the Act) permits the Appeals Commission to reconsider its previous decisions.

[12]               Applications for reconsideration are decided by a reconsideration threshold panel that decides whether the application is timely and made in accordance with the threshold requirements.  The relevant provisions of the Appeal Rules provide as follows:


5.5(1) The Reconsideration Threshold Panel must review an application or motion for reconsideration and only decide that a matter must be reconsidered if the application is made in time and the threshold requirements for reconsideration under subrule (2) are met or subrule (3) applies.

(2) The threshold requirements for reconsideration are that:

(a)  the decision shows an obvious and important error of law or jurisdiction;

(b)  the decision shows an important error of fact, or an error of mixed fact and law, in the decision that affects the decision;

(c)  the decision was based on a process that was obviously unfair or unjust.

(3) A decision may also be reconsidered if the Threshold Reconsideration Panel is satisfied that new evidence is now available or that evidence, not available on reasonable and justifiable grounds at the hearing, is now available, and that the evidence

     (a)   is relevant to the decision, and

     (b)  is likely to have had an impact on the decision.”

[13]               There are conditions restricting the timing of reconsideration requests.  Except in the case of an application made on the basis of new evidence, applications for reconsideration must be made within six months of the date the matter was decided:

5.2 (2) An application for reconsideration must be made to the Appeals Commission under rule 5.1 [Application for reconsideration] within 6 months of the date that the matter the subject of the application was decided, or in the case of an application based on new or unavailable evidence described in rule 5.5(3) [Criteria for reconsideration], within 6 months of the date the evidence was discovered or became available.”

[14]               Legislation intends that decisions of the Appeals Commission be final and conclusive:

Power of Appeals Commission

13.1(1) Subject to sections 13.2(11) and 13.4, the Appeals Commission has exclusive jurisdiction to examine, inquire into, hear and determine all matters and questions arising under this Act and the regulations in respect of


and the decision of the Appeals Commission on the appeal or other matter is final and conclusive and is not open to question or review in any court.” (emphasis added)

Evidence/Findings

[15]               It is important to say at the beginning that whether the decision in Patrus changed the criteria for determining employment suitability or whether the 2010 panel adopted the wrong criteria are questions that are not before us.  The only questions we have considered are those raised by the submission of the worker’s representative.  Our role is restricted to deciding whether the application meets the threshold requirements.  We also note that the decision in Patrus is currently under appeal before the Alberta Court of Appeal.

[16]               The first issue is whether the court’s finding in Patrus has retroactive effect in the context of the worker’s reconsideration request.

[17]               The question of retroactivity based on changed legal interpretation by reason of a court decision was extensively considered by the Workers’ Compensation Appeals Tribunal of Ontario (WCAT) in its decision number:  915 A - Retroactivity Addendum.

[18]               The tribunal issued this leading decision in 1988.  In the context of workers’ compensation legislation, it dealt exhaustively with several topics including the retroactivity of adjudication standards changed by reason of a new court decision.  A changed adjudication standard is characterized as an “overruling”.

[19]               The tribunal described decision 915 as follows:

“In Decision No. 915 this panel decided, amongst other things, that disabling chronic pain - what the decision refers to as enigmatic chronic pain and pain magnification associated with a psychogenic pain disorder-was one of the potential consequences of an industrial injury which under the terms of the Workers’ Compensation Act is compensable.  This decision was contrary to the board’s practice of not compensating for chronic pain.

Because that decision represented what could be characterized, in part at least, as a change in workers compensation law, the panel was concerned with the issue of the retroactive application of such a change-both in the context of this particular case, and generally.”

[20]               The addendum to decision 915, (decision number 915A) focused specifically on the concept of retroactivity, and in the process, examined several different facets of that concept.


[21]               About changes in legislative interpretation induced by new court decisions, it characterized the current state of the law in the following terms:

“In the courts, when the law ‘changes’ by reason of a new interpretation by, say, the Supreme Court of Canada, the change does not have a retroactive effect on cases in which judgments have previously been rendered on the basis of the old understanding of the law.  The common law’s commitment to the finality of judgments sees to that.”

[22]               In reviewing the case law relative to retroactivity, the panel distilled the following principles:

[22.1]           The retroactive effect of changes in the law arising from over rulings of prior interpretations is governed by common law principles of general application.

[22.2]           Generally, an overruling has a limited effect, except in relation to the overruling case where it may be applied retroactively.

[22.3]           It is the duty of the administrative agency applying the overruling to establish the extent of the limitation.

[23]               As the panel put it:

“It is now clear that when a court or an administrative agency or tribunal overrules a previous interpretation of a statute, there is a common-law presumption that the retroactivity of that overruling will normally be limited.  It is the duty of a court or administrative agency or tribunal making or applying such an overruling to determine the nature of the appropriate restriction in that particular case in accordance with the principles of the law.” 

[24]               The panel, in reaching this decision relied heavily on the Supreme Court of Canada’s decision in Wigman v R. 1985 CanLII 1 (SCC), [1987] 56 CR (3rd) 289 as well as leading decisions from the English Court of Appeal and the United States Supreme Court. From its decision we elicited three factors that must be considered when defining the limitation (if any) to be placed on an overruling.  Adjudicators must consider:

[24.1]           the purpose of the change;

[24.2]           the reliance placed upon the previous interpretation;

[24.3]           and the effect on the administration of justice of a retroactive change.

[25]               The WCAT panel endorsed the concept that the retroactive effect of an interpretation overruling be subject to limits necessitated by the requirements of good public administration and concluded that over rulings should not have retroactive effect.


[26]               In rejecting the proposition that the common law, which normally restricts the retroactive effect of interpretive changes in the law, has in fact no limiting effect when applied to the compensation of injured workers, the WCAT panel expressed the view that it would require explicit legal direction before it could be persuaded to the virtue of that view.  It rationalized this conclusion in the following way:

“The adoption of such a proposition would accord to injured workers a massively privileged position relative to any other citizen in similar circumstances.  From a policy perspective the reasons for such a special privilege are far from clear.  Why, it would be fair to ask in this regard, for instance, would the Legislature or the courts have intended to give injured workers so great advantage over injured plaintiffs?”

[27]               In arriving at the conclusion that there are and should be limits to retroactivity in relation to the worker’s compensation system, the WCAT panel recognized the uniqueness of the Ontario workers’ compensation system in the following terms:

“The application in workers’ compensation cases of the common-law limitation on the retroactivity of overrulings is immensely complicated by the fact that the workers’ compensation system in Ontario has appeal rights that are not time limited and agency and tribunal powers of reconsideration that are not restricted by the doctrine of res judicata.  There are also no limitation periods applicable to the commencement of a claim.”

[28]               These factors complicated the analysis of overrulings in Ontario.  In Alberta however these factors are not present and, the situation is clearer than in Ontario.  In contrast to the Ontario legislation:

[28.1]           The Alberta Act incorporates a 24 month limitation period applicable to the commencement of a claim,

[28.2]           It embodies a one-year limitation in respect to reviews by the WCB review body of decisions issued by claims adjudicator and a one-year limitation affecting appeals from a decision of the review body to the Appeals Commission.

[28.3]           Finally, there is clear legislative intent, expressed in section 13.1 of the Act confirming that the decisions of the Appeals Commission are final and conclusive and not open to question or review in any court, which inhibits the reopening of claims settled by adjudication at the appeals level.

[29]               From these differences between the Ontario and Alberta legislative schemes, we conclude it is even clearer in Alberta that the concept of retroactivity is not generally applicable in workers’ compensation matters.

[30]               In spite of the legislative matrix unique to Ontario, the WCAT panel reached, among several others, the following conclusions:


“We have found that there is a common law of limited retroactivity which encompasses the traditional presumption against retroactivity of legislative changes in the law and extends to limitations on agency, tribunal or court over rulings.  The law applies to the worker’s compensation system and applies whether over rulings are based on changes in the interpretation of the law or on the acceptance of advances in medical knowledge.

By ‘overrulings’ is meant decisions by administrative agencies, tribunals or courts inconsistent with previous institutional positions on generic issues of law or medicine, which decisions are dictated by new interpretations of the law or the recognition of new medical knowledge.

The law of retroactivity requires any adjudicator applying an overruling to consider what limits on the retroactivity of benefits derived from that overruling considerations of good public administration require-having due regard to the facts and circumstances of the particular case.”

[31]               In the context of the worker’s reconsideration application, we have concluded the decision in Patrus is not retroactively applicable to the worker’s appeal and cannot reasonably be used as a license in 2011 to require the reconsideration of the decision reached by the Appeals Commission in 2010.

[32]               In reaching this conclusion, we utilized the factors we previously identified in this decision in relation to Wigman to assist us in determining the limit of retroactivity. 

[32.1]           The purpose of the change:

        The overruling in Patrus resulted from a judicial review of the Appeals Commission decision affecting the rights of Mr. Patrus to TTD and other benefits.  It was not argued, nor did the court indicate, that it intended its decision to effect a retroactive change to all previous TTD decisions made in relation to WCB claimants prior to the publication of its decision.  In order to conclude that the potential overruling issued by the court in Patrus was intended to have retroactive application to other claimants would require a clear indication in the court’s decision.  In the absence of such direction, we conclude that the court’s decision is intended to affect only the rights of Mr. Patrus.

[32.2]           Reliance placed upon the previous interpretation:

        As the worker did not base his reconsideration application on error of law, it is not within the scope of this review to determine whether the correct standard was employed by the panel in determining the suitability of employment


        If we are wrong, and the worker’s reconsideration request is in fact based on error of law, then because the Appeals Commission received the worker’s reconsideration request outside the six-month limitation period, it is not in compliance with the conditions affecting reconsideration applications and therefore is invalid.

[32.3]           The effect on the administration of justice of a retroactive change:

        We take judicial notice of the fact that TTD issues represent approximately 15% of the total of approximately 1000 appeals heard by the Appeals Commission each year.  This is a proxy for thousands of similar appeals made by the WCB at the claims adjudicator and review body levels.  An overruling that retroactively changed adjudication standards in respect to TTD entitlement has the potential for destabilizing the accident fund and the actuarial calculations pursuant to which employer assessments have been calculated in the past. 

        In our view, because of these financial considerations related to the sufficiency of the accident fund, and the desirability of certainty of assessments, a decision reaching the conclusion the Patrus had retroactive effect, would not meet the requirements of good public administration and would undermine the legislative intent that decisions of the Appeals Commission be final and conclusive.

[33]               For these reasons, we have concluded that the Patrus decision does not have retroactive applicability to the worker’s appeal.

Analysis – Issue 2

[34]               Does the Patrus decision constitute new evidence?

Legislation and Policy

[35]               Policy 01-08 Part I is the WCB’s new evidence policy.  It provides, in part, as follows:

“The WCB will consider any new evidence and, if appropriate, amend or rescind its previous decision. The effective date of the amended decision depends the nature of the decision.

This policy is effective June 1, 2010, and applies to all decisions and administrative reviews on or after that date except when noted otherwise in a specific policy section(s).


1. New Evidence

New evidence is new information that may affect the outcome of a workers' compensation decision. It must meet two basic criteria:

         the evidence is material (relevant) to the issue in question

         the evidence is substantive - it gives new information that was not previously available to the decision maker and could affect the outcome of the decision

Information is not new evidence when it simply summarizes or reformats information that was considered by the decision maker when the decision was made. For example, a medical report is not new evidence if it consists of the same clinical findings, by the same or another physician, already taken into account by the decision maker. A medical report may be new evidence if, for example, new clinical findings lead to a change in diagnosis.

New evidence includes:

         health information

         work-relatedness

         fitness to work earnings information

         information about employer operations

         administrative review findings that identify previous errors or omissions

         appeal findings

         various other relevant facts

The principles of fairness and natural justice generally require that the WCB considers all relevant evidence, new or otherwise, when reviewing a decision. However, the WCB expects that interested parties will make all reasonable efforts to provide all relevant information when the initial decision is made. If new evidence was reasonably available to the party at the time of the initial decision, the WCB will take into consideration why the information was not provided at the time. Depending on the circumstances, the WCB may decide not to accept the information as new evidence.”

Evidence/Findings

[36]               This application for reconsideration is brought forward on the basis of new evidence solely on the strength of the court’s publication of Patrus.  No other factor or changed circumstance is identified in support of the reconsideration application. 


We must decide whether the Patrus decision is an appeal finding constituting new evidence.

[37]               The Patrus decision establishes that an assessment of “suitable employment” for the purpose of determining a worker’s eligibility for the continuation of TTD benefits must be made in reference all relevant attributes of the worker, not simply his compensable conditions.

[38]               In its July 16, 2010 decision, the Appeals Commission panel adopted a different standard, which it expressed as follows at paragraph:

“WCB policy 04-02 provides that a worker is entitled to TTD benefits when the worker’s compensable work restrictions prevent him or her from pre-accident or other work.  Considerations such as cognitive abilities and academic background are not relevant considerations in determining whether or not the worker is entitled to TTD.  The work restrictions must be the result of a work-related injury, i.e. the work restrictions must be compensable restrictions.”

[39]               We have to decide whether the standard adopted by the court in Patrus constitutes “an appeal finding” and is therefore, according to Policy 01-08, “new evidence” justifying reconsideration.  It should not be concluded from this analysis that the Appeals Commission is bound by this policy as it is essentially an adjudicative policy and not a compensation policy.  We make no finding in this regard.  Nevertheless, Policy 01-08 was specifically referred to by the worker’s representative and the policy is instructive if not necessarily binding.

[40]               In considering this question, we reached the conclusion that a judgement or decision of a superior court is neither an “appeal finding”, nor is it “new evidence”.  We relied upon the following rationale in reaching this conclusion:

[40.1]           A “judgment” is, by definition:

“A court’s final determination of the rights and obligations of the parties in a case.”  Bryan Garner, (St. Paul: West, a Thomson business, 2004) Black’s Law Dictionary, (8th edition) p.858.

[40.2]           The court’s explanation within a judgement of the criteria to be used in deciding an issue is a legal interpretation.  In Patrus for example, the court decided employment suitability is determined in reference to all factors that affect a person’s ability, not simply in reference to compensable work restrictions.  Judicial interpretations are not the same as evidence.

[40.3]           “Evidence”, is:

“Is any matter of fact which is furnished to a legal tribunal, otherwise than by reasoning or a reference to what is noticed without proof, as the basis of inference in ascertaining some other matter of fact.”


“Something, (including testimony, documents and tangible objects) that tend to prove or disprove the existence of an alleged fact.”

Garner, Black’s Law Dictionary, (8th edition), p.555

[40.4]           In other words, evidence is information, which is legally admissible in a hearing, which derives from the testimony of witnesses, or the entry into the record of documents and other exhibits to prove the truth of a fact in contention.  Neither judgements nor judicial interpretations fall within the scope of this definition.

[40.5]           When Policy 01-08 uses the phrase “appeal findings” it refers to “findings of fact”.  “Findings of fact” are defined as follows:

“A determination by a judge, jury or administrative agency of a fact supported by the evidence in the record, usually presented at the trial or the hearing - often shortened to ‘finding’.”  Garner, Black’s Law Dictionary, (8th edition), p.664.

[41]               In other words, facts are determined following an evaluation of evidence by a court or adjudicator.  A judgment is the final determination by the court or adjudicator of the parties’ rights and obligations.  A judgment is made on the basis of findings reached after weighing evidence and depend upon interpretation of applicable policy, legislation and law.

[42]               We are led by this logic to conclude that the judgment in Patrus is not an appeal finding and therefore cannot be said to constitute new evidence.

Conclusions and Reasons

[43]               These findings lead us to the conclusion that the worker’s reconsideration request of July 24, 2011 does not satisfy the threshold requirements for reconsideration.  The Patrus decision does not have retroactive application and it does not constitute new evidence.  For these reasons, the worker’s reconsideration application must fail.

Decision

[44]               The worker’s request for reconsideration of the July 16, 2010 Appeals Commission decision is denied.

 

 


 

This decision is made with the full agreement of the hearing panel.

 

Decision dated at Edmonton this 11th day of January, 2012.

 

 

 

                                                                                                                                                           

                                                                           D. Tadman

                                                                           Hearing Chair

                                                                           (on behalf of the panel)

 

Hearing Panel:

D. Tadman

–  Hearing Chair

 

R. Mohammed

–  Commissioner

Typed by:  tt

D05 (2010/12)