Judicial review decisions

C.A.S v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (September 6, 2024) | Summary (PDF, 125KB)
The worker filed a late appeal from a judicial review decision of the Supreme Court.  As for the grounds for appeal, the worker argued that the Vice Chair had erred in assessing her credibility negatively, and should not have done so without holding an oral hearing, even though the worker chose an appeal by written submissions.

The Court of Appeal ruled against the extension of time because the worker’s appeal was bound to fail.  On an appeal of a judicial review decision, there are two issues: did the Supreme Court judge identify the correct standard of review, and did they apply it correctly?  In answering the second question, the Court of Appeal steps into the shoes of the Supreme Court judge and accords no deference to their decision, though it may be instructive and worthy of respect.  As with the judicial review, the proposed appeal would consider only the evidence before WCAT, not evidence obtained afterwards.

The appeal judge noted that the standard of patent unreasonableness means that it is not for the court on review or appeal to reweigh evidence or second guess conclusions drawn from the evidence.  As for an oral hearing, the worker chose not to ask WCAT for one, even though the material and position that she was advancing was plainly inconsistent with those advanced at the Review Division level. There was no merit to the suggestion that she and her representative could not have anticipated the credibility issue. 

J.T. v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (June 7, 2024) | Summary (PDF, 133KB)

J.T. described 89 events at his workplace that he said constituted bullying and harassment, and that caused his mental disorder.  WCAT accepted that these 89 events occurred, and found that a number of them constituted “significant work related stressors.”  WCAT accepted a psychological opinion that said that the workplace incidents were unpleasant for the worker, but were only minor factors in the development of his mental disorder.  WCAT concluded that the worker’s mental disorder was not predominantly caused by the significant work-related stressors.  It denied J.T.’s appeal.  The court found that WCAT’s acceptance of the psychological opinion rendered its decision to be patently unreasonable, because the psychologist did not have access to J.T.’s description of all 89 workplace events.  WCAT’s discretionary decision not to seek an updated opinion from the psychologist, or an opinion from another health professional that took all 89 events into account, was also patently unreasonable.  Finally, at the oral hearing of his appeal, J.T. said that he had not received a letter that WCAT had sent to him after a pre-hearing conference.  It was procedurally unfair for WCAT to continue the proceeding after reading the letter to J.T.  WCAT should have adjourned the hearing so that J.T. could receive the letter and digest its contents.

Baun v. British Columbia (Workers’ Compensation Appeal Tribunal), BCCA (May 22, 2024) | Summary (PDF, 138KB)

Ms. Baun (the appellant) sought to challenge six WCAT decisions in two petitions.  The Court of Appeal found that the chambers judge had correctly struck the  two petitions.  The petitions sought wide-ranging relief that was beyond the jurisdiction of the court to grant on judicial review.  The petitions did not identify any comprehensible flaw in the WCAT decisions that could be said to render them patently unreasonable.  It was not procedurally unfair for the chambers judge to hear the strike applications in the appellant’s absence.  The record reflected that the appellant was aware of the hearing date, but decided not to attend.  The Court dismissed the appeal, with the result that the petitions stood dismissed.    

King v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (Mar 21, 2024) | Summary (PDF, 124KB)

The worker filed a mental disorder claim alleging bullying and harassment, which the Board denied.  On appeal, the worker requested, and initially was granted, an oral hearing.  However, after numerous delays and adjournments, WCAT decided to proceed by written submissions following which the panel would either render a decision on the appeal or hold an oral hearing.  Following submissions, the panel rendered a single decision denying an oral hearing and dismissing the appeal.  On appeal and judicial review, the worker argued that an oral hearing was necessary because of conflicting accounts and credibility being in issue.  However, the Court held that on the key issue of the labour relations exclusion, oral evidence would not have been relevant.  The Court further held that in changing the mode of appeal, the panel gave fair notice and sufficient reasons for doing so.

Chestacow v. British Columbia (Workers’ Compensation Appeal Tribunal), BCCA (October 13, 2023) | Summary (PDF, 136KB)

The Court denied the appellant’s appeal from the chambers judge’s order dismissing her application for document production by WCAT in a petition proceeding.  The Court confirmed that an order for document production from a tribunal remains exceptional.  Tribunals are protected by the presumption of regularity and the principle of deliberative secrecy.  The appellant’s stated concerns about WCAT’s process were speculative, and did not constitute an objectively reasonable concern that the tribunal process was unfair or conducted in bad faith.  The chambers judge did not err in refusing to grant an order for document production.

Lawrence v. Workers’ Compensation Appeal Tribunal, BCSC (September 28, 2023) | Summary (PDF, 106KB)

Conflicts developed between the worker and some of his co-workers. The worker believed that some of his co-workers engaged in unsafe work practices. The worker made bullying and harassment complaints against some co-workers, and some co-workers made bullying and harassment complaints against the worker. The worker’s employment was suspended and then terminated. The worker made a prohibited action complaint under section 49 of the Workers Compensation Act (Act). Ultimately, WCAT concluded that the employer’s termination of the worker’s employment was a prohibited action.

The worker also made a claim for compensation under s. 135 of the Act for a mental disorder resulting from workplace bullying and harassment. The Review Division confirmed the Board’s denial of the worker’s claim. WCAT dismissed the worker’s appeal, concluding that the workplace events were not traumatic events or significant workplace stressors and even if they were, they were captured by the employment decision exclusion in section 135(1)(c) of the Act. WCAT dismissed the worker’s application for reconsideration of the original decision, concluding that WCAT was not procedurally unfair and that additional information the worker submitted did not satisfy requirements for new evidence in section 310 of the Act.

The Court dismissed the worker’s petition for judicial review of the prohibited action decision and reconsideration decision, finding that the original decision was not procedurally unfair, and that the reconsideration decision was not patently unreasonable. The Court concluded that disagreeing with another panel on a point of law was not evidence of bias, and a successful prohibited action complaint does not mean that a mental disorder claim must also be successful. The Court rejected other allegations that the WCAT panel was biased.

Rear v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (Aug 28, 2023) | Summary (PDF, 147KB)

The worker developed pain in her hands and wrists.  The Board’s investigation consisted of watching her briefly demonstrate her work activities at a modified workstation, producing a one-page report, and obtaining a clinical opinion from a Board medical adviser.  On appeal to WCAT, the worker obtained an assessment and report from an ergonomist, which included a 40-minute video of her performing work duties at a re-creation of her original workstation.  The panel accepted aspects of each expert opinion and concluded that workplace activities and conditions were not of causative significance. On judicial review, the Court ruled that it was patently unreasonable for the panel to rely on the Board’s assessment and clinical opinion because they were based on the modified workstation.  Also, the Court held that it was patently unreasonable for the Panel to draw conclusions on matters requiring medical expertise that were contrary to the effectively uncontradicted ergonomist report.

Edwards v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (July 25, 2023) | Summary (PDF, 130KB)

WCAT found that Mr. Edwards (the petitioner) did not sustain an aggravation of his pre-existing spondylolisthesis and degenerative disc changes as a result of his 2017 work accident.  WCAT accepted a Board medical advisor’s opinion that there was no objective evidence of aggravation or acceleration of the pre-existing condition.  The court found that WCAT’s decision was patently unreasonable because it relied exclusively on the lack of objective evidence.  WCAT should have considered the evidence more holistically when considering the aggravation question.  That evidence included chronic back pain that pre-dated the accident, and increased signs and symptoms and changes in function after the accident.

Campbell v. British Columbia (Workers’ Compensation Appeal Tribunal), BCCA (June 13, 2023) | Summary (PDF, 125KB)

The Court of Appeal dismissed a Plaintiff’s attempt to overturn WCAT’s Certification to Court that his injuries arose out of and in the course of his employment, and that the defendants were workers and employees within the meaning of the Act.  The Plaintiff argued that WCAT had not given him an adequate opportunity to be heard on all the issues.  However, the Court of Appeal found that, having regard to all of the circumstances, the procedures followed did not result in any unfairness to the Plaintiff.

Bird v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (April 6, 2023) | Summary (PDF, 127KB)

The worker submitted an ergonomist’s report in support of her appeal.  In assessing the report, the panel referred to previous case involving the same expert.  In the previous case, a panel obtained an opinion from independent health professional (“IHP”) who commented negatively on the testing methods used by the ergonomist.  On judicial review in the present case, the Court held that the panel had breached procedural fairness in that they had essentially relied on the IHP’s opinion as evidence in the present case without giving the worker notice or an opportunity to respond. 

Chapman v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (March 30, 2023) | Summary (PDF, 121 KB)

In setting the worker’s long-term wage rate, it was necessary to determine whether the worker was a temporary or permanent employee.  WCAT held that he was temporary.  On judicial review, the worker argued that the panel had misinterpreted the employment contract.  However, the Court found that panel’s approach was sound as she examined the words used by the parties as well as the surrounding circumstances.  The presumption of permanent employment does not necessarily apply in a workers’ compensation context.

Mardones v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (March 15, 2023) | Summary (PDF, 100KB)

The court found that a WCAT reconsideration decision was not patently unreasonable in concluding that a physician report submitted as new evidence failed to meet the reasonable diligence requirement, given that the petitioner failed to provide submissions to WCAT on the issue.

McHugh v. Insurance Corporation of British Columbia, BCSC (January 12, 2023) | Summary (PDF, 110KB)

WCAT determined that the petitioner’s bilateral elbow epicondylitis and ulnar nerve conditions were not occupational diseases that were due to the nature of her employment, and therefore the petitioner was not entitled to compensation under section 136 of the Workers Compensation Act. The Court found WCAT’s decision was patently unreasonable for relying on a workplace evaluation (and by extension a Board Medical Advisor report) that did not simulate any actual work activity, and for giving less weight to an ergonomist report, given that the WCAT panel misunderstood the ergonomists report and failed to take into account that the Board Medical Advisor’s report was based on the same assumption that the panel found the ergonomist had incorrectly made.

Sanders v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (January 03, 2023) | Summary (PDF, 113KB)

The worker argued that WCAT should not have made adverse findings regarding her credibility without holding an oral hearing.  She claimed that she could not have known that her credibility would be in question, and that she did not know that an oral hearing was an option. However, the Court noted that the Notice of Appeal form requires the user to select from two options, written submissions or oral hearing, and the worker selected written submissions.  The Court did not accept that WCAT was procedurally unfair for using the mode of appeal chosen by the worker herself.

Ahluwalia v. Workers’ Compensation Appeal Tribunal, BCSC (December 8, 2022) | Summary (PDF, 118KB)

The worker complained of bullying and harassment.  The employer conducted an investigation, and concluded that the complaint was unfounded.  The worker filed a complaint of prohibited action and a claim for compensation based on a mental disorder.  The Board ruled against the worker on both matters.   On judicial review, the worker argued that the Vice Chair was biased because he stated that one cannot use a purely subjective approach in assessing whether a work-related stressor is “significant” within the meaning of the Act. However, the Court affirmed that such assessments do indeed have both subjective and objective elements. The worker also argued that the employer’s investigation was flawed. While allowing that perhaps the employer could have done better, the Court noted that WCAT’s role was not to determine the quality of the employer’s investigation or its record-keeping, but to assess the evidence as a whole to determine whether bullying, harassment, or prohibited actions occurred

Pastega v. Insurance Corporation of British Columbia, BCSC (October 31, 2022, as amended on March 21, 2023) | Summary (PDF,137KB)

The worker made a claim for compensation for her mental disorder, on the basis that she had been bullied by some co-workers through some social media postings made by those co-workers.  WCAT found that two episodes of social media activity (namely, two separate posts on Facebook made by the co-workers) constituted significant stressors.  However, these stressors did not “arise out of and in the course of the worker’s employment”.  The posts were made outside the workplace, outside of work time, and use of the social media platform was not part of the worker’s or coworkers’ job duties.  The court found that WCAT’s decision was not patently unreasonable.

Dhillon v. Workers’ Compensation Appeal Tribunal, BCCA (July 19, 2022) | Summary (PDF, 133KB)
Ms. Dhillon was a care aide who provided assistance to clients in their homes. She was injured in a motor vehicle accident that occurred when she was driving home, after leaving her last client of the day. Mr. Shaheem was allegedly responsible for the motor vehicle accident. He was a tow truck driver who had towed a vehicle from one body shop owned by his employer to another, and was heading home when the accident occurred. In a determination made pursuant to section 257 of the Workers Compensation Act, [now section 311], WCAT found that both Ms. Dhillon and Mr. Shaheem were workers, they were both traveling employees, and they were both in the course of their employment when the accident occurred. The Court of Appeal found that WCAT’s decision was not patently unreasonable. 

Maung v. Workers’ Compensation Appeal Tribunal, BCSC (July 13, 2022) | Summary (PDF, 148KB)

The Petitioner filed a prohibited action complaint, which the Board dismissed. On appeal to WCAT, he submitted several email threads as evidence.  However, the panel decided on a determined that these were not relevant and refrained from disclosing them to the employer. The worker also requested that the employer be required to produce security camera footage which would show the assault and two meetings between him and management.  The panel declined to order this because neither the incident nor the meetings were disputed.  On judicial review, the Court concurred with the panel’s rulings, and found that there had been no procedural unfairness.

Pion v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (June 29, 2022) | Summary (PDF, 107KB)

WCAT decided that the petitioner’s shoulder injury did not arise out of his employment. The court dismissed the petitioner’s judicial review, concluding that WCAT’s decision was neither patently unreasonable nor procedurally unfair. The only expert medical evidence before WCAT supported WCAT’s conclusion that the injury was inevitable regardless of any employment activity. WCAT was also not patently unreasonable for deciding not to retain an independent health professional as WCAT is not required to notify parties in advance of any deficiencies in their appeal. WCAT was not procedurally unfair in not holding an oral hearing, for, among other reasons, the petitioner had never asked for one.

Maloney v. Workers’ Compensation Appeal Tribunal, BCSC (June 08, 2022) | Summary (PDF, 96KB)
Following an unsuccessful appeal of a wage rate decision, the petitioner successfully pursued a small claims action for unpaid wages.  He then applied for a “new evidence” reconsideration on the basis of the small claims trial record and order to pay.  However, WCAT held that the small claims documents were not “new” within the meaning of the Act.  The Court declined to interfere with this ruling, since the small claims documents were derivative of evidence which could have been, but was not, presented to WCAT on the original appeal. 

Campbell v. Workers’ Compensation Appeal Tribunal, BCSC (May 26, 2022) | Summary (PDF, 120KB)
WCAT issued a Certification to court that a plaintiff’s injuries arose out of and in the course of his employment, and that the defendants were workers and employees within the meaning of the Act.  On judicial review, the plaintiff challenged the panel’s findings of fact. In dismissing these arguments, the court noted that reasons should be treated as an organic whole, not parsed and dissected in a search for error.  The panel’s reasons included alternative findings that rendered the plaintiff’s arguments moot.  The plaintiff also noted that the panel considered a white paper without previously inviting comment from the parties.  While the invitation should have been made, the court found that there had been no unfairness to the plaintiff because the point for which the paper was relied upon was consistent with his own submission on the point.  

Aghili v. Workers’ Compensation Appeal Tribunal, BCSC (May 04, 2022) | Summary (PDF, 128KB)
The court applied the general rule that new evidence is not admissible on judicial review. The court also applied the general rule that a petitioner may not raise on judicial review an issue that could have been, but was not, raised on an appeal to WCAT.

Grewal v. British Columbia (Workers’ Compensation Appeal Tribunal),BCSC( April 12, 2022) | Summary (PDF, 105KB)

The court dismissed the petitioner’s judicial reviews of a former Appeal Division decision (which had determined that the petitioner was not entitled to interest on retroactive income continuity benefits) and two WCAT decisions (one a first stage reconsideration decision on procedural fairness and new evidence grounds and the other a decision finding WCAT lacked jurisdiction to consider a claim for interest on retroactive income continuity benefits given prior Board decisions). The court found that the Appeal Division judicial review was brought too late, WCAT’s reconsideration decision was neither patently unreasonable nor procedurally unfair, and WCAT’s jurisdiction decision was not patently unreasonable.

Edens v. Workers’ Compensation Appeal Tribunal, BCSC (April 06, 2022) | Summary (PDF, 114KB)
The Court declined to consider an argument of the Petitioner on the grounds that it was contradictory to the argument that had been made to the panel.  In addressing the panel’s findings of fact, the Court held that reweighing of evidence is unavailable on judicial review.

Brown Bros. Motor Lease Canada Ltd. v. Workers’ Compensation Appeal Tribunal, BCCA (January 20, 2022) | Summary (PDF, 317KB)
The Court of Appeal dismissed an appeal that sought to overturn a Certification to Court (“CTC”) made pursuant to section 257 (now 311) of the Workers Compensation Act.  The CTC concerned the status of a flight crew in BC overnight on a layover.   The Court of Appeal noted that there is a two-step process for determining whether a tribunal’s enabling statute applies to a case before it.  Firstly, the panel determines whether the statute applies on the facts of the case.  Only if this question is answered in the affirmative, should the decision-maker go on to consider whether the statute applies as a matter of constitutional law.  On judicial review, the first step is subject to the patent unreasonableness standard; the second is subject to the standard of correctness.  The Court of Appeal found that the panel in the present case addressed only the first question, and had done so in a fashion which was not patently unreasonable.

Erskine v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (November 29, 2021) | Summary (PDF, 134KB)
In a 2018 “stage two” new evidence reconsideration decision, the WCAT panel concluded that new medical evidence warranted a change to the original WCAT decision with respect to causation of the worker’s left foot and ankle injuries.  The 2018 panel accepted that the worker’s workplace accident was of causative significance to those injuries.  The 2018 panel found that the new medical evidence did not warrant a change to the original WCAT decision with respect to causation of the worker’s left knee, left hip or lumbar back injuries.  Those injuries remained not compensable under the Act.  The court upheld the 2018 WCAT decision.  It was not patently unreasonable, nor was it procedurally unfair.

Chestacow v. Workers’ Compensation Appeal Tribunal, BCSC (August 27, 2021) | Summary (PDF, 123KB)

The court denied the petitioner’s application for document production by WCAT in a judicial review proceeding.  The petitioner sought production of seven specific categories of documents. The court found that the first category was not relevant to the grounds for review of the WCAT decision, as set out in the pleadings.  The court denied production of the second and third categories, WCAT’s draft decisions, pursuant to the principle of deliberative secrecy and the presumption of regularity.  WCAT had already included the documents sought in the fourth, fifth and sixth categories in its filed certified record.  Finally, the court denied the production of all communications within WCAT regarding the petitioner’s appeal.  That request constituted an impermissible fishing expedition.

T.B. v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (April 6, 2021) | Summary (PDF, 19KB)
The petitioner experienced sexual dysfunction after suffering a workplace injury to her back.  The Workers’ Compensation Appeal Tribunal (WCAT or the tribunal) determined that her sexual dysfunction was not a consequence of her injury.  WCAT’s decision was based on its preference for one doctor’s opinion that there is no clear association between the petitioner’s spine problems and her sexual dysfunction over that of another doctor whose opinion was that her sexual dysfunction is significantly contributed to by her compensable condition.  On judicial review, the court agreed with the petitioner that the reasons given by the tribunal for preferring the first doctor’s opinion were not supportable by the facts in the record.  The court allowed the petition and set aside the WCAT decision.

Steadman v. Workers’ Compensation Appeal Tribunal, BCSC (March 17, 2021) | Summary (PDF, 20KB)
The petitioner claimed that he suffered a brain injury as a result of a trip and fall at work.  The Workers’ Compensation Appeal Tribunal (WCAT) confirmed the decision of the Workers’ Compensation Board (Board) that the fall did not cause a brain injury.  The petitioner argued that WCAT’s preference for the evidence of one doctor was patently unreasonable because the facts upon which that doctor relied were incorrect.  The petitioner also argued that WCAT misunderstood principles of causation and erred in placing a burden of proof upon the petitioner.  The court dismissed the petition, finding that WCAT’s understanding of the evidence was reasonable and that, contrary to the petitioner’s argument, there is an onus on a worker to prove his or her entitlement to compensation when appealing a Board decision.

Weiss v. Workers’ Compensation Appeal Tribunal, BCSC (February 12, 2021) | Summary (PDF, 133KB)
Ms. Weissova was injured in a motor vehicle accident while being driven by her husband, Mr. Weiss.  In a determination made pursuant to section 257 of the Workers Compensation Act [now section 311], WCAT assumed that both Ms. Weissova and Mr. Weiss were workers, but neither of them were in the course of their employment when the accident occurred. The court found that WCAT was procedurally unfair for not holding an oral hearing.  Mr. Weiss had requested an oral hearing and there were clear credibility disputes that required an oral hearing. 

Dhillon v. Workers’ Compensation Appeal Tribunal, BCSC (February 4, 2021) | Summary (PDF, 127KB)
Ms. Dhillon was a care aide who provided assistance to clients in their homes.  She was injured in a motor vehicle accident that occurred when she was driving home, after leaving her last client of the day.  Mr. Shaheem was allegedly responsible for the motor vehicle accident.  He was a tow truck driver who had towed a vehicle from one body shop owned by his employer to another, and was heading home when the accident occurred.  In a determination made pursuant to section 257 of the Workers Compensation Act, [now section 311], WCAT found that both Ms. Dhillon and Mr. Shaheem were workers, they were both traveling employees, and they were both in the course of their employment when the accident occurred.  The court found that WCAT’s decision was not patently unreasonable.

Brown Bros. Motor Lease Canada Ltd. v. Workers’ Compensation Appeal Tribunal, BCSC (January 14, 2021) | Summary (PDF, 45KB)
The flight crew of a U.S.-based airline were injured in a car accident while being driven from their hotel to the airport in Vancouver. The crew were on a layover, taking required rest between flights and were scheduled to fly from Vancouver to the United States. Each of the crew members was an American citizen. Each commenced litigation in British Columbia suing those they alleged to be responsible for the accident and their respective damages. The defendant driver was in the course of his employment when the accident happened and the defendants pleaded that the action was barred by section 10 of the Workers Compensation Act (now section 127). The plaintiffs applied to the Workers’ Compensation Appeal Tribunal (WCAT) under section 257 (now section 311) for a determination of whether their injuries arose out of and in the course of their employment. WCAT determined that, through application of policy item AP1-2-1 (now policy AP1-4-1), the Act did not apply to the plaintiffs because they had no attachment to British Columbia industry. The court dismissed the petition for judicial review.

Richmond Elevator Maintenance Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (January 21, 2021) | Summary (PDF, 48KB)
The court determined that a decision of the Workers’ Compensation Appeal Tribunal was patently unreasonable in finding that an employer had been given notice of a potential administrative penalty for a violation of occupational health and safety requirements.

Ahluwalia v. Workers’ Compensation Appeal Tribunal BCSC (October 30, 2020) | Summary_(PDF,20KB)
The Workers’ Compensation Appeal Tribunal (WCAT) decided that it did not have jurisdiction to hear an appeal of a decision not to issue an order under the occupational health and safety provisions of the Workers Compensation Act.  The worker sought to appeal to WCAT a decision of the Review Division of the Workers’ Compensation Board (WorkSafeBC) finding that the worker’s employer had complied with the occupational health and safety provisions of the Act.  On judicial review of the WCAT decision, the court held that WCAT’s interpretation of its jurisdiction was not patently unreasonable and that its procedure was fair.  The court dismissed the petition for judicial review.

Morris v. British Columbia (Workers’ Compensation Board), BCCA (October 28, 2020) | Summary_(PDF,138KB)
The Court of Appeal found that Mr. Morris could not challenge the Workers’ Compensation Board’s reopening decision in court, but was instead obliged to exhaust his internal statutory remedies by pursuing his appeal to WCAT of the Board’s decision. The Court also agreed with the court below that a court could not decide whether to award Mr. Morris benefits under the Workers Compensation Act or not. That task was for decision makers in the workers’ compensation system. Finally, the Court confirmed that it was not open to Mr. Morris to challenge a 2013 WCAT panel’s finding that Mr. Morris’ condition had plateaued on the basis of evidence that had not been before that panel. Such evidence is inadmissible on judicial review.

Agarin v. Workers’ Compensation Appeal Tribunal, BCSC (May 13, 2020) | Summary (PDF, 258KB)
The petitioner brought an application for an injunction against the Workers’ Compensation Board pending the outcome of her judicial review proceeding. The application was dismissed.

Colwill v. Workers’ Compensation Board, BCCA (December 11, 2019) | Summary (PDF, 256KB)
The Court of Appeal allowed this appeal brought by the Workers’ Compensation Board from an order declaring policy item #37.21 of the Rehabilitation Services and Claims Manual, Volume II to be of no force or effect. The court found that the policy constitutes a reasonable way to distinguish between a total disability and a partial disability. The Court of Appeal confirmed that a policy of the Board can be directly reviewed by the B.C. Supreme Court after the WCAT has made a decision under section 251 of the Act that the policy is lawful.

C.S. v. British Columbia (Workers’ Compensation Appeal Tribunal), BCCA (November 19, 2019) | Summary (PDF, 317KB)
WCAT found that the appellant’s pre-existing mental disorder was not aggravated by her conflict with the employer and a co-worker, and was not aggravated by the employer’s failure to accommodate, as there was no accommodation agreement on the point alleged by the appellant. The petitioner brought a judicial review, and argued for the first time on judicial review that the mental disorder provisions in the Workers Compensation Act and the associated policy in the Rehabilitation Services and Claims Manual, Volume II were contrary to section 15 of the Charter, and also argued that WCAT’s decision was patently unreasonable. The chambers judge found that the Charter issue ought to have been, but was not, raised before the Review Division of the Board in the first instance, and declined to hear the issue for the first time on judicial review. The chambers judge also found that WCAT’s decision was not patently unreasonable, and dismissed the petition. The appellant brought an appeal of the Supreme Court decision. On appeal, she argued that the chambers judge ought to have addressed her new arguments, and argued that the employer’s conduct constituted targeted harassment. The appellant also challenged WCAT’s standing to make submissions in the appeal. The Court of Appeal dismissed the appeal, and found that WCAT had standing as there was no other respondent able to argue the merits.

Sherstobitoff v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (September 30, 2019) | Summary (PDF, 19KB)
The petitioner was injured on her first day at a new job as a heavy equipment operator. The issue before the Workers’ Compensation Appeal Tribunal (WCAT) was whether the petitioner’s employment was permanent or temporary in order to determine whether section 33.3 of the Workers Compensation Act would apply to the calculation of her long term wage rate. WCAT determined that the petitioner’s employment was temporary. The court allowed the petition on the basis that WCAT’s decision was patently unreasonable for not reviewing the available evidence pertaining to the terms of the employment contract. The appeal was remitted to WCAT.

McGowan v. Forster, BCSC (September 27, 2019) | Summary (PDF, 186KB)
In this decision, the Court allowed a petition for judicial review of a determination made by WCAT pursuant to section 257 of the Act. The Court found that, in the circumstances of the case, WCAT had erred by relying almost entirely on a factor not enumerated in policy item C3-14.00, and by ignoring evidence, and findings it had made on the evidence regarding the petitioner’s motivations.

Bhullar v. Workers’ Compensation Appeal Tribunal, BCSC (September 20, 2019) | Summary (PDF, 290KB)
The court held that WCAT’s decision was neither patently unreasonable nor procedurally unfair for not holding an oral hearing. There was ample evidence to support WCAT’s conclusion that the petitioner’s low back was symptomatic prior to the work incident. It was not unfair to proceed by way of written submissions in the circumstances of this case. The petitioner requested to proceed in that way, WCAT did not denigrate the petitioner’s honesty, the petitioner was not taken by surprise by WCAT’s reliance on contested evidence, and it is unclear how oral testimony would have assisted WCAT.

Brkich v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (September 17, 2019) | Summary (PDF, 19KB)
The petitioner claimed that her work as a dental hygienist caused degenerative disc disease and osteoarthritis in her neck. In support of her appeal to the Workers’ Compensation Appeal Tribunal (WCAT), she provided an opinion from her attending physician and many abstracts from journal articles, which she says establish a causal connection between work as a dental hygienist and the development of degenerative disc disease. WCAT considered this evidence against the opinions of two other doctors who observed that there was nothing in the medical literature that demonstrated such a causal connection and, based on observations of the petitioner’s work activities, it was unlikely that those activities caused or aggravated her condition. The court found that WCAT’s preference for the other doctors’ opinions was not patently unreasonable and therefore dismissed the petition.

K-C Recycling Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (August 14, 2019) | Summary (PDF, 151KB)
The employer (K-C Recycling) terminated a worker’s employment after he raised concerns with his supervisor about the employer’s new method of cleaning certain equipment in its recycling plant. The Workers’ Compensation Appeal Tribunal (“WCAT”) found that the worker had established a prima facie case of discriminatory action by his employer, pursuant to section 151 of the Workers Compensation Act (the Act) [now section 48]. WCAT found that the employer had not rebutted the prima facie case. The employer had provided little to no evidence to support its assertion that it dismissed the worker due to various performance concerns, not due to his safety complaint. The Court found that WCAT’s finding that the employer had not rebutted the prima facie case of discriminatory action was not patently unreasonable. It also found that WCAT’s discretionary decision to hear the appeal by way of written submissions, instead of by oral hearing, was not patently unreasonable. Neither the employer nor the worker had requested an oral hearing. WCAT had essentially found that the employer’s evidence was not detailed or believable enough to give rise to a factual dispute requiring an oral hearing to resolve. The Court dismissed the petition for judicial review.

Webb v. Canada (Attorney General), BCCA (July 30, 2019) | Summary (PDF, 17KB)
The applicant sought leave to appeal an order of the B.C. Supreme Court (2019 BCSC 760) dismissing his application for an extension of time to file his judicial review of a decision of the Workers’ Compensation Appeal Tribunal (WCAT). The B.C. Supreme Court judge had found that there was no reasonable likelihood that the petition would succeed. The Court of Appeal Justice was not satisfied that there was a reasonable chance that a division of the Court would find that the B.C. Supreme Court judge erred in principle.

Paleos v. Workers’ Compensation Appeal Tribunal, BCSC (July 10, 2019) | Summary (PDF, 266KB)
The petitioner’s counsel withdrew an appeal filed with the Workers’ Compensation Appeal Tribunal, saying that subsequent events had made the appeal moot. In accordance with its regular practice, WCAT allowed the request and summarily dismissed the appeal. Later, counsel became aware that the appeal was not in fact moot, as the decision from the Workers’ Compensation Board determined that the petitioner would retire at age 65. The petitioner requested reconsideration, arguing that WCAT was procedurally unfair when it allowed his withdrawal request, as it had a duty to inform him that not all issues in the appeal were moot. WCAT denied the reconsideration request, finding that the duty of fairness did not require it to determine whether or not all issues in the appeal were moot before allowing the withdrawal request. The petitioner brought a judicial review, and arguing that WCAT was unfair for allowing the withdrawal request. The Court dismissed the petition for judicial review, finding that the duty of fairness did not require WCAT to inquire as to whether all issues in the appeal were moot.

Colwill v. Workers’ Compensation Board, BCSC (May 27, 2019) | Summary (PDF, 256KB)
The court held that policy item #37.21 of the Rehabilitation Services and Claims Manual, Volume II is inconsistent with any reasonable interpretation of the Workers Compensation Act and declared the policy (and a corresponding part of policy #39.30) is of no force and effect. In the course of reaching its decision, the court confirmed that a policy of the Workers’ Compensation Board can be directly reviewed by the court after the WCAT has made a decision under section 251 of the Act that the policy is lawful.

Webb v. Canada (Attorney General), BCSC (May 14, 2019) | Summary (PDF, 44KB)
The court dismissed the petitioner’s application pursuant to section 57(2) of the Administrative Tribunals Act for an extension of time to apply for judicial review, finding that there was no reasonable likelihood that the petition would succeed.

Morris v. British Columbia (Workers’ Compensation Board), BCSC (May 7, 2019) | Summary (PDF, 26KB)
The court found that the petitioner could not establish that a factual finding by WCAT in a 2013 decision about the date of plateau of his condition was patently unreasonable, on the basis of evidence of his condition after the WCAT decision was issued. Such evidence was not before the tribunal and is inadmissible on judicial review. The court also found that WCAT’s 2018 decision, in which it found that it could not decide whether to reopen the worker’s claim or not, in the absence of a Board decision on this question, was not patently unreasonable.

Lissimore v. Workers’ Compensation Appeal Tribunal, BCSC (March 27, 2019) | Summary (PDF, 269KB)
This decision was a judicial review of a decision from the Workers’ Compensation Appeal Tribunal (WCAT) that found an item in the Permanent Disability Evaluation Schedule (PDES) not patently unreasonable pursuant to section 251 of the Workers Compensation Act (Act). The petition for judicial review was dismissed. The Court found that the principles of statutory interpretation required the Workers Compensation Board (Board) to consider whether the average worker with the petitioner’s shoulder injury would be expected to have reduced earning capacity, with reference to the PDES. The Board was empowered to take this approach by section 23(2). The Court found it was not patently unreasonable for WCAT to determine that the use of the PDES to measure loss of earning capacity was not unlawful. It was also not patently unreasonable for WCAT to not consider the petitioner’s actual loss of earnings as a relevant factor in determining her award under section 23(1) because section 23(1) awards do not consider actual loss of earnings. In the result, the petition was dismissed.

Kostiuk v. Workers’ Compensation Appeal Tribunal, BCSC (March 15, 2019) | Summary (PDF, 264KB)
The Court allowed the petition, finding that WCAT misapprehended the medical opinion. The Court also found that WCAT failed to address a critical point in policy item C3-16.00, which required a determination of whether the petitioner’s pre-existing condition was at a critical point at the time of the accident. Finally, the Court found that WCAT failed to determine whether the petitioner’s condition was aggravated, activated, or advanced more quickly by the workplace accident. The matter was remitted to WCAT for reconsideration.

Air Canada v. British Columbia (Workers’ Compensation Appeal Tribunal), BCCA (October 19, 2018) | Summary (PDF, 296KB)
The Court of Appeal dismissed the appeal of the Workers’ Compensation Appeal Tribunal (WCAT) from an order allowing petitions for judicial review of a WCAT decision. WCAT had determined that section 8 of the Workers Compensation Act precluded compensation of a flight attendant who lived outside of British Columbia and was injured outside of British Columbia, even though her work was based at Vancouver International Airport. The court found that WCAT’s interpretation of the relevant law and policy was patently unreasonable. The appropriate remedy was to remit the matter to WCAT for reconsideration. It was inappropriate for the court below to direct WCAT as to how it should interpret the Workers Compensation Act. The Court of Appeal also disagreed with the lower court in respect of the latter’s finding that WCAT failed to consider evidence that the worker’s injury may have happened inside the province, after the aircraft had landed.

Bellia v. Workers’ Compensation Appeal Tribunal, BCSC (September 21, 2018) | Summary (PDF, 198KB)
The Workers’ Compensation Board (Board) accepted the worker’s claim for right shoulder strain and right sided neck strain. The issue before WCAT was whether the worker had thoracic outlet syndrome (TOS) and chronic regional pain syndrome (CRPS) as compensable consequences of her initial accepted injury. WCAT essentially concluded that even if it accepted that the worker and CRPS and TOS, the medical opinions were insufficiently persuasive on the work causation question (that is, they were insufficiently persuasive that the worker’s right shoulder strain and right-sided neck strain were a significant cause of the CRPS and TOS). The court found that WCAT was not procedurally unfair for hearing the worker’s appeal by way of written submissions, instead of by way of oral hearing. WCAT’s decision on the merits of the appeal was not patently unreasonable.

Atkins v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (July 13, 2018) | Summary (PDF, 304KB)
The court held that the WCAT was not patently unreasonable in finding that the worker’s diagnosed post-traumatic stress disorder was not caused by a work-related event even if the event did trigger the condition. WCAT had also found that the event itself did not qualify the worker for coverage under section 5.1 of the Workers Compensation Act because the event was not objectively traumatic. The court held that this latter finding was patently unreasonable but that it did not render the decision as a whole patently unreasonable. Accordingly, the court dismissed the petition for judicial review.

West Fraser Mills v. British Columbia (Workers’ Compensation Appeal Tribunal), SCC (May 15, 2018) | Summary (PDF, 206KB)
This appeal dealt with two issues concerning the authority of the Workers’ Compensation Board in prevention matters. The first issue was whether the Board had the jurisdiction to make section 26.2(1) of the Occupational Health and Safety Regulation, which requires the owner of a forestry operation to ensure that all activities of the operation are both planned and conducted safely. The second issue concerned the decision of WCAT to confirm an administrative penalty issued by the Board under section 196(1) of the Workers Compensation Act against the appellant pursuant to the same conduct upon which the Board found the appellant to have violated section 26.2(1) of the Regulation. The appellant asked the Supreme Court of Canada to find that the Board did not have the jurisdiction to make the regulation and that, in any event, WCAT’s decision confirming the penalty should be set aside. The appeal was dismissed by a majority of the court.

Stein v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (May 14, 2018) | Summary (PDF, 171KB)
WCAT issued a decision finding that the petitioner’s pre-existing mental disorder was not aggravated by her conflict with the employer and a co-worker, and was not aggravated by the employer’s failure to accommodate, as there was no accommodation agreement on the point alleged by the petitioner. The petitioner brought a judicial review, and argued for the first time on judicial review that the mental disorder provisions in the Workers Compensation Act and the associated policy in the Rehabilitation Services and Claims Manual, Volume II were contrary to section 15 of the Charter, and also argued that WCAT’s decision was patently unreasonable. The Court found that the Charter issue ought to have been, but was not, raised before the Review Division of the Board in the first instance, and declined to hear the issue for the first time on judicial review. The Court also found that WCAT’s decision was not patently unreasonable, and dismissed the petition.

Aujero v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (May 11, 2018) | Summary (PDF, 197KB)
The court determined that WCAT was not patently unreasonable in making two findings respecting a motor vehicle accident. The first was that a home care worker on her way to her first client of the day was in the course of her employment notwithstanding that she was not being paid until she arrived at her client’s home. The second finding was that the other driver did not substantially deviate from his employment when he ran a red light.

Bendera v. Workers’ Compensation Appeal Tribunal, BCSC (April 6, 2018) | Summary (PDF, 274KB)
The court determined that WCAT was patently unreasonable when it denied the worker’s claim for compensation for a mental disorder because it arose from a decision of the employer and was therefore excluded under section 5.1(1)(c) of the Workers Compensation Act. The court found that WCAT’s interpretation of that provision to exclude consideration of the tone or manner in which an employment decision is communicated was patently unreasonable.

Rabbani v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (March 20, 2018) | Summary (PDF, 203KB)
WCAT had to consider whether the worker’s back complaints in late 2014, including a herniated disc, were the result of a workplace injury in 2013, which injury the Workers’ Compensation Board had earlier accepted for a back strain. There were conflicting medical opinions. WCAT had denied the worker’s request for an oral hearing (ordering the appeal proceed by written submissions) on the basis that the issues on appeal were principally medical and did not require an oral hearing to resolve. WCAT preferred the medical opinions indicating it was unlikely that the worker’s back condition in 2014 was related to his 2013 injury and denied the appeal. The court dismissed the worker’s petition for judicial review, finding that there was some evidence upon which WCAT could reach its conclusion and that the tribunal’s decision not to have an oral hearing did not amount to procedural unfairness.

Shamji v. Workers’ Compensation Appeal Tribunal, BCCA (March 1, 2018) | Summary (PDF, 245KB)
The issue before WCAT was the amount to use as the worker’s post-injury (post-disability) earnings, at the assessment stage of adjudication for a section 23(3) loss of earnings permanent partial disability award (LOE award). The Review Division had used an occupational class average earnings figure for the worker’s post-injury earnings when it decided that the worker was eligible for an LOE assessment. WCAT found that it was not bound to use that figure when it was assessing the worker’s award at the section 23(3) stage. WCAT found that the appropriate figure to use was the worker’s expected earnings (that is, his earnings five years post graduation and certification in his new occupation) of $22.50 per hour (to be discounted to date of injury dollars). The Court of Appeal found that the BC Supreme Court had correctly found that WCAT’s decision was not patently unreasonable. It dismissed the appeal.

Stehlik v. W.C.A.T., BCSC (December 1, 2017)(PDF, 122KB) | Summary (PDF, 153KB)
Mr. Stehlik filed a petition that referred to three WCAT decisions: (1) WCAT-2010-01291; (2) WCAT-2009-01788; and (3) WCAT-2015-02879. The court said that the petition appeared to refer to criminal injury legislation. However, WCAT has no jurisdiction over that matter. The 2010 WCAT decision decided that question, and had already been judicially reviewed. That decision was under appeal to the Court of Appeal. Thus, it was not open to Mr. Stehlik to seek judicial review of the 2010 WCAT decision again. The Administrative Tribunals Act provides that an application for judicial review of a decision must be commenced within 60 days of the date the decision is issued. The petition was filed in October 2017 and thus beyond the 60 day time limit in relation to the 2009 and 2015 WCAT decisions. The court struck the petition and dismissed the proceeding in relation to the three WCAT decisions.

Chmielewski v. Workers’ Compensation Appeal Tribunal, BCSC (November 7, 2017) | Summary (PDF, 165KB)
In this judicial review, the Court found that WCAT relied on an absence of evidence to rebut the presumption in the Act instead of evidence showing that the injury did not arise out of the employment. The decision was set aside and remitted to WCAT for reconsideration. The Court also allowed the petitioner’s extension of time application brought pursuant to section 57 of the Administrative Tribunals Act.

Air Canada v. Workers’ Compensation Appeal Tribunal, BCSC (September 12, 2017) | Summary (PDF, 200KB)
The worker, a flight attendant, lived in another province but worked out of the Vancouver International Airport (YVR). She claims to have suffered a compensable mental stress injury arising from events that began while she was working on a flight from Asia returning to YVR. The Workers’ Compensation Board accepted the worker’s claim and the employer appealed to the WCAT. WCAT concluded that if the worker was injured, the injury happened while the flight was outside of British Columbia and because the worker did not reside in B.C., the worker was not entitled to compensation because of section 8 of the Workers Compensation Act, which says that where the injury of a worker occurs while the worker is working elsewhere than in B.C., the Board must pay compensation if, among other things, the residence of the worker is in the province, but not otherwise. The court held that WCAT’s decision was patently unreasonable because it did not consider Board policy, which says that in some circumstances, an injury to a worker outside B.C. may be compensable without the need to consider section 8 and because WCAT did not consider evidence that the alleged injury may have happened inside the province.

Sacky v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (August 30, 2017) | Summary (PDF, 194KB)
On judicial review the worker asserted that WCAT ought to have exercised its discretion to obtain further medical evidence, and was procedurally unfair for not doing so. The worker further asserted that WCAT did not give adequate reasons for preferring the Board medical advisor’s opinion over the other medical opinions. The fact that WCAT did not find the medical evidence the worker submitted to be persuasive did not mean it ought to have independently sought further medical evidence before reaching a conclusion adverse to the worker. This was not a case of no evidence or of evidence evenly weighted such that section 250(4) of the Workers Compensation Act applied, as it was clear that WCAT did not consider the evidence to be evenly weighted. Accordingly, WCAT’s exercise of its discretion was not patently unreasonable. After the fact speculation by the petitioner or medical experts that the tribunal incorrectly weighed the evidence before it cannot establish that the tribunal’s decision was patently unreasonable. As there was some evidence to support WCAT’s findings, the decision was not patently unreasonable.

Encinger v. Workers’ Compensation Appeal Tribunal, BCSC (August 8, 2017) | Summary (PDF, 17KB)
Ms. Encinger travelled to London, England three times for treatment with a London-based surgeon. The Board reimbursed Ms. Encinger for the British Columbia scheduled cost of the three procedures, but not for her travel expenses or for her medical expenses above the British Columbia scheduled rates. The Review Division confirmed the Board’s decision. Ms. Encinger appealed to WCAT and requested an oral hearing. She essentially alleged that prior to her travel to London, both the Board and her British Columbia surgeon told her that no other local surgeon could provide her with a second opinion or treatment. WCAT denied the oral hearing request and proceeded by way of written submissions. In denying the request, the panel did not expressly address Ms. Encinger’s statements regarding her alleged discussions with the Board and her BC surgeon. The court found that the tribunal had been procedurally unfair when it denied Ms. Encinger’s oral hearing request. The facts giving rise to Ms. Encinger obtaining treatment in London were squarely in dispute. Credibility would probably also have to be tested. The court allowed the petition. It remitted the matter to the tribunal to proceed by way of an oral hearing.

Kerr v. Workers’ Compensation Appeal Tribunal, BCSC (June 29, 2017) | Summary (PDF, 166KB)
The petitioner tripped and fell while she was walking to her car after work, injuring her knees. At the time of the injury petitioner was discussing work-related matters with a student she was mentoring as part of her employment. The Court found that WCAT was not patently unreasonable when it found that the petitioner’s injuries did not arise out of and in the course of employment. The Court rejected the petitioner’s argument that WCAT had misinterpreted policy item C3-14.00, and had made a patently unreasonable finding when it analogized the petitioner’s conversation with her student mentee to a conversation between co-workers in a pub.

Edwards v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (April 7, 2017) | Summary (PDF, 269KB)
WCAT had determined that the worker’s compensable skin condition had resolved. In his petition for judicial review of WCAT’s decision, the worker asserted that the tribunal had incorrectly revisited an earlier WCAT decision finding that his skin condition was compensable and, in any event, the decision under review was patently unreasonable. The worker also alleged that WCAT had breached the rules of natural justice and procedural fairness by denying his request for an oral hearing. The Court dismissed the petition, finding that WCAT had exclusive jurisdiction to interpret the earlier decision and that its interpretation was not patently unreasonable. In the Court’s opinion, WCAT had not purported to change the earlier decision that the worker had a compensable condition but instead the tribunal had found that the compensable condition had since resolved. The Court also held that the tribunal’s decision not to hold an oral hearing was fair in the circumstances.

Pomponio v. Workers’ Compensation Appeal Tribunal, BCSC (February 27, 2017) | Summary (PDF, 292KB)
The worker challenged a decision of WCAT which had found that evidence of a worker’s circumstances after a compensable injury is not substantial and material to the issue of when the worker’s disability benefits should terminate. The Court held that WCAT’s reasons were consistent with section 23.1 of the Workers Compensation Act and could not therefore be said to be patently unreasonable.

Van Dam v. Workers’ Compensation Appeal Tribunal, BCSC (February 14, 2017) | Summary (PDF, 25KB)
WCAT found that Ms. Van Dam’s aggravation of her pre-existing mental disorder was excluded from compensation by section 5.1(1)(c) of the Workers’ Compensation Act. Ms. Van Dam filed a petition for judicial review of the WCAT decision over one year after the expiry of the 60-day period to do so set out in the Administrative Tribunals Act. The court dismissed the petition as being filed out of time. Ms. Van Dam had failed to provide a reasonable explanation for her delay in filing the petition. Nor did Ms. Van Dam’s petition establish serious grounds for relief.

Northern Thunderbird Air Inc. v. British Columbia (Workers’ Compensation Appeal Tribunal), BCCA (February 1, 2017) | Summary (PDF, 148KB)
The Court of Appeal found WCAT’s decision was not patently unreasonable when it determined that the respondents were workers, but their injuries did not arise out of and in the course of employment. The appellant, Northern Thunderbird Air (NTA), was the owner and operator of a plane that crash landed at Vancouver International Airport. The individual respondents were a group of CEO’s and executives on the plane, and were en route to a weekend retreat. The respondents brought a civil against NTA for the injuries sustained in the crash. NTA and the respondents applied to WCAT for a determination under section 257 of the Workers Compensation Act as to whether the respondents’ injuries arose out of and in the course of employment. WCAT determined that the respondents were workers at the time of the accident, but that their injuries did not arise out of and in the course of employment. In coming to this conclusion, WCAT found the retreat was best characterized as course for the respondents’ own benefit and applied the general rule in policy item C3-21.00, which says that compensation coverage generally does not extend to training courses.

Branch v. Workers’ Compensation Appeal Tribunal, BCSC (January 23, 2017) | Summary (PDF, 145KB)
The Court found that WCAT’s decision regarding depression was not patently unreasonable because its decision only addressed the question of whether the petitioner had a diagnosis of depression. The petitioner had not raised the issue of symptoms of depression before WCAT, and the Court declined to exercise its discretion to hear this issue for the first time on judicial review. Therefore, WCAT’s decision was not patently unreasonable. The Court also found WCAT’s decision regarding spondylosis was not patently unreasonable, as WCAT did not fail to consider relevant evidence regarding this condition as the petitioner had argued. The judicial review was partially allowed, and the matter was referred back to WCAT to reconsider its decision regarding C7 radiculopathy and chronic right C7 denervation.

Lockyer-Kash v. British Columbia (Worker’s Compensation Board), BCSC (December 30, 2016) | Summary (PDF, 149KB)
The Court found that it was reasonable for the board of directors of the Workers’ Compensation Board to determine that the former item #50.00 of the Rehabilitation Services & Claims Manual, Volumes I and II, was not so patently unreasonable that it is not capable of being supported by the Workers Compensation Act and its regulations. The petitioner has appealed this decision to the Court of Appeal.

Bodman v. Workers’ Compensation Appeal Tribunal, BCSC (December 30, 2016) | Summary (PDF, 146KB)
The Court dismissed that portion of the petition that challenged the former age 65 policy (#41.00 RSCM II) on the basis that it was patently unreasonable. The Court found that WCAT’s interpretation of the policy was not patently unreasonable. WCAT interpreted the policy as not requiring independent verifiable evidence of a worker’s intention to retire. WCAT had also concluded that the Act and policy required an adjudicator to consider more than the worker’s stated intention to retire and consider whether the worker would actually have retired had the accident not occurred. The Court also determined that WCAT was procedurally unfair in not contacting the employer to obtain more information before issuing its decision and remitted the matter to WCAT with a direction to do so.

West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), BCCA (November 28, 2016) | Summary (PDF, 14KB)
This appeal involved two interconnected issues: i) the jurisdiction of the Workers’ Compensation Board to make section 26.2 of the Occupational Health and Safety Regulation and ii) whether WCAT was patently unreasonable in confirming an administrative penalty levied against the petitioner for violation of the Regulation. In dismissing the employer’s appeal, the Court concluded that the Board’s regulation-making authority should be interpreted broadly in light of the purposes of occupational health and safety provisions of the Workers Compensation Act and that WCAT’s interpretation that the Act’s administrative penalty provision could apply to an employer that had failed in the responsibilities imposed upon it as an owner was not patently unreasonable.

Shemilt v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (November 24, 2016)
WCAT confirmed that the worker’s diagnosed thumb condition was not caused by a compensable work injury. WCAT found that the accident at work could not have plausibly caused the injury. It based this finding on its preference for one medical opinion over another. The opinion upon which WCAT based its decision was that the accident did not conform to the usual mechanism of injury causing the diagnosed condition. The Court held that WCAT’s finding was patently unreasonable because the medical opinion relied upon by WCAT had not considered the worker’s doctor’s opinion that the accident likely did cause the injury by plausible, but less usual means. The Court allowed the petition for judicial review.

Stehlik v. WCAT, BCSC (October 26, 2016) (PDF, 293KB) | Summary (PDF, 27KB)
The worker applied for compensation for an alleged 1997 workplace injury, over ten years after the date of the alleged injury. WCAT found that there were no special circumstances that precluded him from filing an application within one year of the injury. Thus, his application was time barred under section 55(2) of the Workers Compensation Act. The Court found that WCAT’s decision was not patently unreasonable and dismissed the petition.

M.V. v. Workers’ Compensation Appeal Tribunal, BCSC (August 17, 2016) | Summary (PDF, 144KB)
WCAT determined that the petitioner’s compensable back injury was not a significant cause of the worsening of her non-compensable pre-existing depression. The worsening of her depression was therefore not a compensable consequence of her back injury and her appeal of a decision refusing to reopen her claim for further benefits was denied. The Court found that WCAT had misapprehended the opinion evidence of the petitioner’s treating psychiatrist when it discounted his opinion for failing to consider certain aspects of her personal history when his opinions did consider that information. The Court also issued anonymity and sealing orders in respect of the judicial review proceeding (see M.V. Workers’ Compensation Appeal Tribunal, 2016 BCSC 1507)

Shamji v. Workers’ Compensation Appeal Tribunal, BCSC (July 22, 2016) | Summary (PDF, 114KB)
The issue before the WCAT panel was the amount to use as the worker’s post-injury (post-disability) earnings, at the assessment stage of adjudication for a section 23(3) loss of earnings permanent partial disability award (LOE award). The panel found that the amount to use should be the worker’s expected earnings (that is, his earnings five years post graduation and certification in his new occupation) of $22.50 per hour (to be discounted to date of injury dollars), with a 37.5 hour work week. The WCAT panel declined to order reimbursement of the worker’s travel costs and wage loss on the day of the hearing, because these expenses were due to the specific request of the worker’s counsel to hold the hearing in Victoria, as opposed to Surrey, the city of the worker’s residence. The court found that WCAT’s decision was not patently unreasonable. It dismissed the worker’s petition for judicial review.

Denton v. Workers’ Compensation Appeal Tribunal, BCSC (July 5, 2016) | Summary (PDF, 151KB)
The Court denied the petitioner’s application for an extension of time to file a petition seeking to set aside a WCAT decision. The Court found that the petitioner was unable to provide a reasonable explanation for the seven month delay in filing. An intent to file a reconsideration with WCAT was not enough as it would render the statutory time frame for filing meaningless. The Court also found there were no serious grounds for relief. The petitioner was challenging the constitutionality of WCAT’s interpretation of certain policies of the board of directors of the Workers’ Compensation Board. The petitioner was also challenging the constitutionality of section 5.1 of the Workers Compensation Act but had failed to exhaust internal remedies.

Northern Thunderbird Air Inc. v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (July 4, 2016) | Summary (PDF, 19KB)
Passengers injured in an airplane accident were all members of a business executive peer coaching group on their way to a retreat. WCAT was asked to determine the status of the passengers under section 257 of the Workers Compensation Act. WCAT reviewed the factors relevant to work-relatedness set out in Workers’ Compensation Board policies C3-14.00 and C3-21.00 and determined that the evidence weighed in favour of finding that the passengers were not in the course of their respective employments when they were injured. The airline sought judicial review of WCAT’s decision on the basis that the tribunal failed to properly analyze the critical issues. The Court disagreed with the petitioner, finding that the decision sets out WCAT’s path of reasoning and demonstrates careful weighing of the evidence and application of law and policy to the facts as found.

British Columbia (Workers’ Compensation Appeal Tribunal) v. Fraser Health Authority, SCC (June 25, 2016) | Summary (PDF, 30KB)
The majority of the Supreme Court of Canada determined that WCAT’s original decision was not patently unreasonable when it determined that the breast cancers of three hospital laboratory workers were due to the nature of their employment. The majority determined that the causation finding of the majority of the WCAT panel is subject to deference and that there was evidence before the panel, which, viewed reasonably, was capable of supporting the conclusion. The presence or absence of opinion evidence from an expert positing (or refuting) a causal link is not determinative of causation. The SCC also dismissed WCAT’s appeal of the finding of the majority of the Court of Appeal that WCAT lacks the power to reconsider an earlier WCAT decision if it is patently unreasonable. The SCC did so on the basis that the respondent, the Fraser Health Authority, agreed that the reconsideration decision was a nullity.

Cima v. Workers Compensation Appeal Tribunal, BCSC (May 25, 2016) | Summary (PDF, 104KB)
WCAT upheld the denial of the worker’s claim for compensation for mental disorder under section 5.1 of the Workers Compensation Act. The court found that the WCAT decision was patently unreasonable. It allowed the worker’s petition for judicial review.

Erskine v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (May 25, 2016) | Summary (PDF, 21KB)
WCAT denied the worker’s application for reconsideration of an original decision on new evidence grounds. The WCAT new evidence panel found that the issue in the original decision, which was whether the worker had been injured as a result of a forklift incident, had turned on an assessment of credibility. The new evidence panel found, among other things, that the proffered new evidence did not address in any detail the concerns identified by the original panel, which related to the original panel’s assessment of credibility. The proposed new evidence was not “substantial” to the original decision, within the meaning of section 256(3) of the Workers Compensation Act (the Act). The Court found that by confining new evidence to that which related to the line of reasoning in the original decision, the new evidence panel prevented a meaningful change to the factual matrix from which the original line of reasoning arose. The new evidence potentially changed the factual matrix, because it provided direct and objective medical evidence indicating a mechanism of injury consistent with the forklift incident. The Court set the new evidence decision aside as being patently unreasonable.

Goghari v. ACM Environmental Corporation, BCCA (April 8, 2016) | Summary (PDF, 108KB)
Mr. Goghari claimed that his employment had been terminated contrary to section 151 of the Workers Compensation Act. WCAT ultimately determined that the termination was due to a slowdown in work and was not a result of discriminatory action by Mr. Goghari’s employer. On judicial review, Mr. Goghari asserted that the WCAT decision was patently unreasonable and procedurally unfair. The Court dismissed the petition, finding that the WCAT decision was not patently unreasonable nor had WCAT been procedurally unfair. The Court of Appeal dismissed Mr. Goghari’s appeal.

Scanlan v. WCAT, BCSC (February 24, 2016) (PDF, 301KB) | Summary (PDF, 147KB)
The Workers’ Compensation Appeal Tribunal (WCAT) found that the worker’s right hand infection did not arise out of and in the course of his employment. WCAT accepted the RDMA’s medical opinion in this regard. WCAT denied the worker’s appeal from the Review Division decision, which had also accepted the RDMA’s opinion. The Court dismissed the petition for judicial review. It found that it was not patently unreasonable for WCAT to prefer the medical opinion on causation, over the worker’s (petitioner’s) opinion on causation, and over the scientific textbooks that he had relied upon. The textbooks did not relate directly to the petitioner and the causation of his infection. The Court also rejected the argument that WCAT had been procedurally unfair. WCAT did not deny the petitioner the ability to quote from a textbook at the oral hearing. The petitioner was well aware of the policies governing WCAT. He was also aware that he did not succeed at the Review Division because there was no medical opinion presented by him to contradict that of the RDMA. Thus, the Court rejected the argument that the petitioner did not have notice that the vice chair would not rely on his evidence [regarding causation] because it was not within his knowledge and expertise.

Macrae v. Workers’ Compensation Appeal Tribunal, BCSC (January 28, 2016) | Summary (PDF, 20KB)
WCAT had determined that the owner of a vehicle involved in an accident was an employer engaged in an industry within the meaning of Part 1 of the Workers Compensation Act (Act). This determination, made pursuant to WCAT’s authority under section 257 of the Act, was relevant to an action for negligence arising from the motor vehicle accident. The vehicle owner was a company that did not appear to employ anyone, including the vehicle’s driver, under a contract of employment. Neither was the vehicle owner registered as an employer with the Workers’ Compensation Board. The petitioner argued that the company that owned the vehicle was therefore not an employer for the purposes of the Act. WCAT found that one or both of the company’s shareholders must have been a worker for the company. The Court concluded that WCAT’s decision could not be said to be patently unreasonable and dismissed the petition for judicial review.

Stovicek v. Providence Health Care Society, BCSC (January 27, 2016) | Summary (PDF, 97KB)
The worker sustained an injury at work when she struck her arm. The Workers’ Compensation Board (Board) decided that the worker recovered from her injury and denied the condition of Complex Regional Pain Syndrome (CRPS) under her claim. That decision was confirmed by the Review Division, and the Workers’ Compensation Appeal Tribunal (WCAT) confirmed the Review Division decision, finding that the greater weight of medical evidence supported the conclusion that the worker did not develop CRPS. The Court allowed the worker’s petition for judicial review. The Court found that WCAT had analyzed two of the three doctors’ opinions in a mistaken way. The errors rendered the WCAT decision to be patently unreasonable

Houston v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (December 29, 2015) | Summary (PDF, 18KB)
Following an injury at work, the petitioner developed complex regional pain syndrome (CRPS) in her shoulder. Symptoms of CRPS later developed in her chest wall following a medical intervention then, some years later, in her foot after she broke a toe. The Workers’ Compensation Board allowed the petitioner’s claim for “systemic” CRPS in relation to the development of symptoms in her foot but the worker claimed that she developed systemic CRPS earlier, when symptoms presented in her chest. WCAT upheld the Board’s decision. The Court allowed the petition for judicial review, finding that WCAT had fundamentally misapprehended the medical evidence firstly, by assuming that medical experts expressing different opinions were applying the same diagnostic criteria for systemic CRPS and, secondly, by concluding without the benefit of any medical evidence that the petitioner was not suffering from CRPS in her chest.

Skrepetz v. Workers’ Compensation Appeal Tribunal, BCSC (December 10, 2015) | Summary (PDF, 19KB)
The petitioner, a tree faller, claims to have a permanent cognitive impairment as a result of head injuries he sustained while in the course of his employment. Two neuropsychologists assessed the petitioner and said that the results of their assessments were unreliable because the petitioner had not provided sufficient effort in the testing. On the basis of these reports, WCAT found that there was insufficient evidence of a cognitive impairment and it upheld decisions of the Workers’ Compensation Board denying this aspect of the petitioner’s claim. The Court allowed the petition for judicial review, finding that it was patently unreasonable for WCAT to base its conclusion that the worker did not have a cognitive disorder on the neuropsychological reports, the test results of which WCAT had found to be unreliable.

Preast v. Workers’ Compensation Appeal Tribunal, BCCA (September 9, 2015) | Summary (PDF, 26KB)
WCAT had found that the worker was not entitled to a loss of earnings permanent partial disability award under section 23(3) of the current Workers Compensation Act, because the worker’s post injury earnings, calculated either on the basis of what he was actually earning post injury, or on the basis of what he could earn in a suitable alternate occupation, exceeded the statutory maximum established by the Workers’ Compensation Board. The Court found that WCAT’s decision was not patently unreasonable, and dismissed the worker’s petition for judicial review. The Court of Appeal dismissed the worker’s subsequent appeal, finding that the chambers judge had correctly concluded that the WCAT decision was not patently unreasonable.

West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (June 25, 2015) | Summary (PDF, 131KB)
This judicial review involved two interconnected issues: i) the jurisdiction of the Workers’ Compensation Board to make section 26.2 of the Occupational Health and Safety Regulation and ii) whether WCAT was patently unreasonable in confirming an administrative penalty levied against the petitioner for violation of the Regulation. The judgment also considered the scope of a tribunal’s standing on judicial review and the standards of review applicable to the issues. The Court found that both the Board and WCAT had standing to respond to the petitioner’s submissions and dismissed the petition.

Rutter v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (May 25, 2015) | Summary (PDF, 20KB)
The Court allowed the petition, finding that WCAT was patently unreasonable in its characterization of the opinion of the worker’s medical expert and for not explaining in its decision why it did not seek the assistance of an independent health professional.

Puar v. Workers’ Compensation Appeal Tribunal, BCSC (May 15, 2015) | Summary (PDF, 22KB)
WCAT determined that the petitioner was entitled to an increase in his partial loss of earnings award under the former section 23(3) of the Workers Compensation Act. The petitioner maintained he was unemployable. The court found that WCAT’s decision was not patently unreasonable on the basis that: (1) WCAT has the authority to determine the appropriate level of projected earnings and was not required to return that question to the Board; (2) there was evidence to support WCAT’s conclusion that certain occupations were reasonably available; (3) WCAT did not fail to properly interpret and apply item #40.12 of the Rehabilitation Services and Claims Manual, Volume I.

Machado v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (May 12, 2015) | Summary (PDF, 18KB)
WCAT exercised its discretion to deny the worker’s application for an extension of time to appeal a decision of the Review Division. According to WCAT, the worker had not met the requirements of section 243(3) of the Workers Compensation Act by establishing special circumstances that precluded the filing of an appeal within the time set out in the Act. On judicial review, the Court found that there was evidence to support WCAT’s findings of fact and inferences drawn from those findings. In the result, the Court dismissed the worker’s petition for judicial review.

Goulding v. Workers’ Compensation Appeal Tribunal, BCCA (May 11, 2015) | Summary (PDF, 15KB)
WCAT had confirmed the findings of the Workers’ Compensation Board that the worker’s permanent functional impairment award had been correctly assessed and that the worker was not entitled to a loss of earnings assessment under section 23(3) of the Workers Compensation Act. The worker’s petition for judicial review of the WCAT decision was dismissed. The Court of Appeal dismissed the worker’s subsequent appeal. The Court considered that there was evidence to support WCAT’s findings and the decision was not patently unreasonable. The Court of Appeal also dismissed the worker’s motion to introduce new evidence, noting that judicial review is concerned with the record that was before the tribunal.

Mayden v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (April 29, 2015) | Summary (PDF, 26KB)
The Court dismissed Mr. Mayden’s petition for judicial review of two WCAT decisions and one decision of the defunct Appeal Division of the Workers’ Compensation Board. The Court found that the petition did not disclose a reasonable claim and that it was an abuse of the Court’s process, chiefly because the petitioner had earlier sought judicial review in a substantially similar petition, which the Court had struck. For these reasons, the Court held that the current petition should be struck under Rule 9-5(1) of the Rules of Court. The Court also found that neither of the WCAT decisions could be said to be patently unreasonable. WCAT had dismissed the petitioner’s appeal on the basis that an earlier decision on his claim, by the since-defunct Workers’ Compensation Review Board, was final and binding in light of Mr. Mayden’s failed application to the Appeal Division for an extension of time to appeal the Review Board decision. In the other decision, WCAT dismissed the petitioner’s application to reconsider the decision of the Appeal Division because he did not satisfy the requirements in the Workers Compensation Act for new evidence.

Anderson v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (April 2, 2015) | Summary (PDF, 20KB)
The court dismissed a petition for judicial review of a section 257 determination, pursuant to which WCAT found that a particular altercation between individuals arose out of and in the course of employment. WCAT’s decision was supported on the evidentiary record and in the tribunal’s reasons. There was some evidence to support the challenged findings of fact and therefore those findings were not patently unreasonable. WCAT’s reasons were more than adequate because they allowed the court to understand why the vice chair made the decision he did and to assess whether the decision fell within a reasonable range of acceptable outcomes.

Amos v. Workers’ Compensation Appeal Tribunal, BCSC (March 19, 2015) | Summary (PDF, 16KB)
WCAT concluded that the petitioner was not eligible for a loss of earnings award on the basis that he could return to work as a dispatcher, as long as the position was modified through use of a headset. The petitioner brought a judicial review of this decision. The Court allowed the petition for judicial review, finding that WCAT was patently unreasonable as it failed to consider whether the occupation of dispatcher was suitable and reasonably available to the petitioner as required by policy item #40.12 of the Rehabilitation Services & Claims Manual Vol. I. The Court also found that WCAT’s reliance on the Vocational Rehabilitation Consultant’s (VRC) opinion that the dispatcher position could be modified through use of a headset was patently unreasonable as there was no factual basis for the VRC’s opinion.

Von Rummelhoff v. Workers’ Compensation Appeal Tribunal, BCSC (January 9, 2015) | Summary (PDF, 20KB)
The worker applied for compensation from the Workers’ Compensation Board more than one year after his injury. WCAT upheld the Board and Review Division’s decisions, which had found that the worker’s claim for compensation was time barred under section 55 of the Workers Compensation Act. The worker brought a civil claim against WCAT. The court found that the worker’s claim had no reasonable prospect of success. It granted WCAT’s application to have the notice of civil claim struck out in its entirety and dismiss the claim.

Fraser Health Authority v. Workers’ Compensation Appeal Tribunal, BCCA (December 18, 2014) | Summary (PDF, 164KB)
The majority of the Court determined that WCAT does not have the power to reconsider a decision on the basis that the decision is patently unreasonable. This aspect of the decision was confirmed by the Supreme Court of Canada (see above, 2016 SCC 25). The majority also determined that WCAT’s decision was patently unreasonable for speculating that the worker’s breast cancers were caused by work. This aspect of the decision was overturned by the majority of the Supreme Court of Canada.

Bandic v. Workers’ Compensation Appeal Tribunal, BCCA (December 12, 2014) | Summary (PDF, 17KB)
WCAT determined that the petitioner worker was not entitled to a loss of earnings award under the provisions of the Workers Compensation Act as it read before June 30, 2002. The entitlement issue arose following the acceptance of a new permanent condition on his claim more than three years after the original injury. Based primarily on the findings of earlier appellate decisions regarding his physical condition and employability prior to the reopening, WCAT determined that at the time of the reopening the worker was not a viable entity in the workforce for reasons unrelated to his injuries, that his reopening wage rate should therefore be zero, and that he would therefore would not suffer a loss of earnings as a result of his new condition. The B.C. Supreme Court found that WCAT was patently unreasonable for not properly considering evidence. The B.C. Court of Appeal allowed WCAT’s appeal as there was some evidence to support WCAT’s decision.

Funk v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (September 16, 2014) | Summary (PDF, 45KB)
The petitioner challenged a decision of WCAT confirming that his compensable condition had resolved. The petitioner argued that WCAT failed to apply policy items #26.30 and #97.32 of the Rehabilitation Services and Claims Manual, Volume II. The WCAT panel found that policy item #26.30 is concerned with a worker’s initial entitlement to compensation for an occupational disease and does not apply to the question of the duration of a worker’s benefits. The Court concluded that WCAT’s interpretation of the policy was a matter within its exclusive jurisdiction and, in this case, could not be said to be patently unreasonable. With respect to the application of policy item #97.32, which says a worker’s statement about his or her own condition is evidence, the Court said the petitioner’s complaint was really about the weight WCAT gave to his evidence. As the chambers judge stated, it is not for the Court on judicial review to reweigh the evidence.

Goghari v. Saarela, BCSC (September 2, 2014) | Summary (PDF, 33KB)
The petitioner claimed that his employment had been terminated contrary to section 151 of the Workers Compensation Act. WCAT ultimately determined that the petitioner’s termination was due to a slowdown in work and was not a result of discriminatory action by his employer. On judicial review, the petitioner asserted that the WCAT decision was patently unreasonable and procedurally unfair. The Court dismissed the petition, finding that the WCAT decision was not patently unreasonable nor had WCAT been procedurally unfair.

Alamolhoda v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (August 28, 2014) | Summary (PDF, 20KB)
The Court dismissed the petitioner’s request for judicial review, noting that he had failed to demonstrate that the WCAT decision was patently unreasonable. The petitioner had challenged the WCAT decision generally. The appeal to WCAT arose from a decision of the Workers’ Compensation Board to reconsider three findings it had made in an earlier decision. In its reconsideration, the Board concluded that the petitioner’s carpal tunnel syndrome was not compensable and that his only compensable condition had resolved. Because he no longer suffered from a compensable condition, he was not entitled to any further temporary wage-loss benefits. The Board also determined that the petitioner had hidden the fact that he was earning income at another job while he was receiving compensation benefits. In the result, the Board found that the petitioner should have received temporary partial wage-loss benefits rather than the temporary total wage-loss benefits he had been paid.

Marchant v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (June 30, 2014) | Summary (PDF, 24KB)
The Court allowed the petition for judicial review of WCAT’s decision, in which WCAT had concluded that the medical evidence did not support the petitioner’s contention that his bilateral patellofemoral osteoarthritis (POA) was caused or aggravated by his employment. The focus before the Review Division had been the amount of kneeling in the petitioner’s job, because the Review Division had interpreted a Board medical advisor’s opinion as being that working on one’s knees/kneeling on an occasional basis would not cause or aggravate POA. In its decision, WCAT interpreted the opinion as being that kneeling could never cause or aggravate POA, absent some trauma, such that the amount of kneeling the petitioner engaged in was immaterial. The court found that WCAT’s interpretation of the medical evidence before it was patently unreasonable. It also found that WCAT had been procedurally unfair, because it did not give the petitioner notice, prior to issuing its decision, that the question of whether kneeling could cause or aggravate POA absent some trauma was a live issue.

Corcoran v. Workers’ Compensation Appeal Tribunal, BCSC (June 17, 2014) | Summary (PDF, 18KB)
The petitioner filed a claim with the Workers’ Compensation Board after the one year time limit set out in section 55 of the Act. The Board denied the petitioner’s claim. The Review Division and WCAT both denied the petitioner’s appeal. On judicial review, the Court determined that WCAT was not patently unreasonable in finding that the petitioner was not precluded by special circumstances from filing a claim for compensation within one year of his injury. The Court found that both employers and workers have an obligation to report injuries to the Board, and a worker cannot escape those obligations by assuming the employer will make a report on the worker’s behalf.

Preast v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (May 16, 2014) | Summary (PDF, 35KB)
WCAT had found that the worker was not entitled to a loss of earnings permanent partial disability award under section 23(3) of the current Workers Compensation Act, because the worker’s post injury earnings, calculated either on the basis of what he was actually earning post injury, or on the basis of what he could earn in a suitable alternate occupation, exceeded the statutory maximum established by the Workers’ Compensation Board. The Court found that WCAT’s decision was not patently unreasonable. It dismissed the worker’s petition for judicial review.

Combs v. Teck Cominco Metals Ltd., BCSC (May 3, 2014) | Summary (PDF, 17KB)
The Court determined that the Workers Compensation Act was constitutionally applicable to the petitioner, a United States citizen and a resident of Washington State, as there was a sufficient connection between the province and his sporadic work in the province as a truck driver.

Chinook Scaffolding Systems Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (March 28, 2014) | Summary (PDF, 19KB)
Chinook Scaffolding Systems Ltd. (Chinook) petitioned the Court for judicial review of a decision of WCAT, which had found that Chinook’s offer of temporary light duties was not suitable for one of its injured workers. Chinook argued that the WCAT decision was patently unreasonable because it relied, according to Chinook, on insufficient medical evidence that did not evaluate the safety of the light duties or the worker’s medical limitations, contrary to policy item #34.11 of the Rehabilitation Services & Claims Manual (i.e., the policy on selective/light employment). The chambers judge disagreed with Chinook’s argument, noting that the evidence reveals a rational basis on which WCAT could conclude that the work offered by Chinook could not be performed safely by the worker. The Court dismissed the petition.

Erskine v. British Columbia (Workers’ Compensation Appeal Tribunal), BCCA (March 5, 2014)| Summary (PDF, 22KB)
WCAT concluded that Mr. Erskine had a forklift accident while he was at work, but his subsequent injuries did not arise out of and in the course of his employment. The chambers judge found that WCAT’s decision was not patently unreasonable and dismissed Mr. Erskine’s application for judicial review. The Court of Appeal dismissed Mr. Erskine’s appeal, finding that WCAT’s decision was neither patently unreasonable nor procedurally unfair. There was some evidence to support WCAT’s conclusion that the forklift incident was not the cause of Mr. Erskine’s medical condition. WCAT’s reasoning in relation to the medical opinions on causation was clear, and therefore its failure to mention a Board medical advisor opinion did not constitute a failure to deal with a critical issue or a substantive error. WCAT’s reliance on a medical note contemporaneous with the date of injury did not give rise to a breach of procedural fairness, as Mr. Erskine did not seek to call the doctor that authored the note as his witness, nor did he ask WCAT to call the doctor as a witness. Thus, WCAT did not refuse Mr. Erskine the opportunity to challenge the evidence.

Johnson v. Cassiar Packing Company Ltd., BCSC (January 30, 2014) | Summary (PDF, 15KB)
WCAT denied the petitioner’s appeal from a Review Division decision that had upheld the Board’s refusal to reimburse the petitioner for the cost of marihuana purchases. The Court found that WCAT’s decision was not patently unreasonable and dismissed the petition for judicial review.

Cole v. British Columbia Nurses’ Union, BCCA (January 7, 2014) | Summary (PDF, 17KB)
The British Columbia Nurses’ Union had applied to dismiss the petition for judicial review on the basis of a want of prosecution. The chambers judge had dismissed the union’s application because the petitioner was self-represented. The Court of Appeal allowed the union’s appeal, finding that although the courts should accommodate self-represented litigants in procedural matters, a litigant’s lack of sophistication is no defence to an application to dismiss for want of prosecution where the delay is not attributable to his or her self-representation.

Martin v. Workers’ Compensation Appeal Tribunal, BCSC (December 3, 2013) | Summary (PDF, 14KB)
WCAT determined that the worker was not entitled to a loss of earnings award under the former provisions of the Workers Compensation Act as he could adapt to a physically suitable occupation without suffering a loss of earnings. The Court dismissed the worker’s petition challenging WCAT’s decision as it found that there was some evidence to support WCAT’s conclusion and the decision was therefore not patently unreasonable.

Bandic v. Workers’ Compensation Appeal Tribunal, BCSC (November 14, 2013) | Summary (PDF, 16KB)
WCAT determined that the worker was not entitled to a loss of earnings award under the former provisions of the Workers Compensation Act following the reopening of the worker’s claim 18 years after the original injury as he was unemployed at the time of the reopening for personal reasons. The Court found WCAT’s decision patently unreasonable and allowed the worker’s petition.

Browne v. Workers’ Compensation Appeal Tribunal, BCCA (November 8, 2013) | Summary (PDF, 18KB)
WCAT had concluded that a defendant, who drove a truck carrying 14 passengers that had been working at a farm, was not in the course of her employment when a motor vehicle accident occurred. The Court of Appeal confirmed the WCAT decision was not patently unreasonable.

Davis v. Workers’ Compensation Appeal Tribunal, BCCA (September 23, 2013) | Summary (PDF, 15KB)
WCAT issued a decision finding that Ms. Davis’s permanent low back condition was not caused by the cumulative effect of several workplace injuries or her workplace activities. In dismissing Ms. Davis’s petition for judicial review, the chambers judge found that there was ample evidence upon which WCAT could reach the conclusion it did. Ms. Davis appealed, claiming a constitutional right to have her entitlement to workers’ compensation determined by a court. The Court of Appeal dismissed the appeal, observing that the supervisory jurisdiction of the superior courts over tribunals is limited to “intervening where a tribunal has embarked on decision-making that is outside of its statutory mandate, or reached a conclusion in a manner that transcends the limits of curial deference”. The Court confirmed that as the decision reached by WCAT was within its exclusive jurisdiction and was not unreasonable, it must stand.

Moore v. Workers’ Compensation Appeal Tribunal, BCSC (September 12, 2013) (PDF, 13KB) | Summary (PDF, 13KB)
The petitioner’s judicial review was denied for being filed out of time. The Court determined that waiting for the WCAT reconsideration process to finish was not a reasonable explanation for the original delay. It also determined that there were no serious grounds for relief and the employer would be prejudiced by the delay.

Vandale v. British Columbia (Workers’ Compensation Appeal Tribunal), BCCA (September 9, 2013) | Summary (PDF, 20KB)
WCAT issued a decision that Mr. Vandale was no longer entitled to workers’ compensation benefits because he had recovered from his compensable condition. In the course of deciding Mr. Vandale’s petition for judicial review of the relevant WCAT decisions, the chambers judge asked the parties for submissions on whether the WCAT decisions were reconcilable with an earlier finding of fact by the former Appeal Division on Mr. Vandale’s claim. This issue had not been raised by Mr. Vandale in the proceedings before WCAT. In her judgment (see 2012 BCSC 831), the chambers judge dismissed both of the grounds raised by Mr. Vandale, but set aside the WCAT decisions based on the issue she had raised. The Court of Appeal allowed WCAT’s appeal on the basis that the chambers judge erred in finding that WCAT’s implicit interpretation of the Appeal Division decision was patently unreasonable. Also, the Court of Appeal declined to remit the new issue back to WCAT.

Erskine v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (August 29, 2013) | Summary (PDF, 18KB)
The petitioner sought judicial review of a WCAT decision which found his injuries did not arise out of and in the course of employment. WCAT’s decision was made on the basis that the petitioner’s evidence was not credible. On judicial review, the Court found that WCAT’s inquiry properly focused on the question of credibility, and that WCAT’s weighing of evidence could not be criticized. The Court found it must defer to WCAT’s findings of fact unless they were based on no evidence, and found that there was some evidence on which WCAT could have come to its conclusion. The Court found that WCAT was not obliged to further investigate the matter as it made no finding that the evidence was incomplete.

Whetung v. British Columbia (Workers’ Compensation Appeal Tribunal), BCCA (July 26, 2013) | Summary (PDF, 20KB)
The Court of Appeal dismissed an appeal by the Workers’ Compensation Board, operating as WorkSafeBC (Board), and confirmed the finding of the B.C. Supreme Court (see 2012 BCSC 1850) that WCAT had made a patently unreasonable error when it determined that the Board could change a decision it had already made on the basis of comments made by a judge in a related but separate court action.

Fraser Health Authority v. Workers’ Compensation Appeal Tribunal, BCSC (March 28, 2013) | Summary (PDF, 15KB)
The Court allowed the petition for judicial review on the basis that there was no evidence to support the conclusion of the majority of a three member panel that the breast cancers of three hospital laboratory workers were due to the nature of their employment.

Davis v. WorkSafe BC, BCSC (March 19, 2013) | Summary (PDF, 21KB)
The petitioner sought judicial review of a WCAT decision that concluded her several compensable injuries did not culminate in a permanent disability to her low back. This, WCAT found, was true whether one considered the cumulative effect of just the injuries or the injuries combined with the petitioner’s work activities. The court dismissed the petition having found no patently unreasonable error in the WCAT decision. The court also had to consider whether WCAT possesses a common law authority to reconsider one of its own decisions for a patently unreasonable error. In concluding that WCAT continues to have such authority, the chambers judge distinguished the Court of Appeal’s judgment in Lysohirka v. British Columbia (Workers’ Compensation Board), 2012 BCCA 457.

Whetung v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (December 7, 2012) | Summary (PDF, 22KB)
The court found the decision of WCAT to be patently unreasonable insofar as it confirmed the ability of the Workers’ Compensation Board, operating as WorkSafeBC (Board), to stop paying benefits for a worker’s disability where that worker had also been awarded damages in a civil suit for the same disability and where the judge in the civil action had found that the disability was entirely caused by the non-work-related event. The judge hearing the judicial review held that because the Board was not a party to the civil proceeding and because tort law and workers’ compensation law were different in important respects (including in respect of causation), the Board had no right to rely as it did on the comments made in the trial judgment.

McKnight v. Workers’ Compensation Appeal Tribunal, BCSC (December 4, 2012) | Summary (PDF, 23KB)
The Court allowed the petition for judicial review on the basis that WCAT’s decision was patently unreasonable for two reasons: (1) WCAT failed to weigh all of the relevant evidence in reaching its conclusion that the workers did not have mercury poisoning; and (2) WCAT imposed a requirement that there be proof of mercury poisoning as that diagnosis is made by physicians.

Downs Construction Ltd. v. Workers’ Compensation Appeal Tribunal, BCCA (October 4, 2012) | Summary (PDF, 17KB)
The Court of Appeal held unanimously that notwithstanding that the worker’s mental stress injury in this case was not of the sort compensated under the Workers Compensation Act, WCAT was patently unreasonable in determining that the worker’s mental stress injury did not arise out of or in the course of employment.

Phillips v. British Columbia (Workers’ Compensation Appeal Tribunal), BCCA (July 17, 2012) | Summary (PDF, 19KB)
The Court of Appeal dismissed this appeal from an unsuccessful petition for judicial review. The appellant argued that the decision of the WCAT to use her earnings as a part-time employee over the year before her injury as a basis for her long-term wage rate was patently unreasonable. The appellant also argued WCAT’s interpretation of policy item #67.21 of the Rehabilitation Services and Claims Manual, Volume I (Class Averages/New Entrants to Labour Force) amounted to an improper fettering of the tribunal’s discretion and that WCAT had failed to give adequate reasons for its decision.

Mitchell v. Workers’ Compensation Appeal Tribunal, BCSC (June 15, 2012) | Summary (PDF, 20KB)
The Court dismissed the petition for judicial review. WCAT found that the Petitioner’s fall at work, which was not reported to the Workers’ Compensation Board, operating as WorkSafeBC (Board) for three months, was unlikely to have caused the Petitioner’s low back pains. The Court held that WCAT’s original decision was not patently unreasonable because there was evidence to support the tribunal’s conclusion, WCAT’s reconsideration decision was also upheld. The Court dismissed the allegations of bias.

Othen v. Workers’ Compensation Appeal Tribunal, BCSC (June 6, 2012) | Summary (PDF, 15KB)
The Court dismissed the petition for judicial review finding that the WCAT Decision before it, which concluded that the Workers’ Compensation Board (Board) which operates as WorkSafeBC had properly implemented an earlier 2005 WCAT Decision and that the worker was not entitled to a loss of earnings permanent disability award, was not patently unreasonable as there was evidence in the record of proceedings to support the conclusions made. The Court also found that in all of the circumstances the Petitioner was treated fairly by WCAT.

Vandale v. Workers’ Compensation Appeal Tribunal , BCSC (June 5, 2012) | Summary (PDF, 19KB)
The Court in this judicial review held that the Workers’ Compensation Appeal Tribunal (WCAT) did not exceed its jurisdiction in revoking a permanent disability award, nor was WCAT’s application of the relevant Board policy patently unreasonable. However, the WCAT decision was patently unreasonable for making a finding of fact on a key issue that was contrary to an earlier binding finding of fact by the Appeal Division.

Alton v. Workers’ Compensation Appeal Tribunal, BCSC (May 28, 2012) (PDF, 684KB) | Summary (PDF, 19KB)
The Court allowed the petition for judicial review finding that WCAT’s decision was patently unreasonable because there was no evidence to support the tribunal’s conclusion that the Petitioner, who had a fracture in his left foot, had no disability before 1989.

Browne v. Moss, BCSC (May 9, 2012) (PDF, 603KB) | Summary (PDF, 18KB)
The Court dismissed the petition for judicial review finding that the WCAT Decision before it was not patently unreasonable. WCAT had concluded that the Petitioner, who drove a truck carrying 14 passengers that had been working at a farm, was not in the course of her employment when a motor vehicle accident occurred.

Jozipovic v. British Columbia (Worker’s Compensation Board), BCCA (April 26, 2012) | Summary (PDF, 22KB)
The B.C. Court of Appeal issued a declaration that item #40.00 of the Workers’ Compensation Board’s (Board) Rehabilitation Services and Claims Manual, Volume II (RSCM II) is of no force and effect to the extent that it precludes the Board and the Workers’ Compensation Appeal Tribunal (WCAT) from considering the appropriateness of the amount of compensation that is awarded under section 23(1) of the Workers Compensation Act when determining whether a worker’s circumstances are “so exceptional” under section 23(3.1), and therefore whether the worker may be entitled to a loss of earnings award.

Demings v. Worker’s Compensation Appeal Tribunal, BCSC (March 30, 2012) | Summary (PDF, 24KB)
The Court in this judicial review considered: whether the Petitioners (the mother of a deceased worker and the estate of the father) had exhausted their internal administrative remedies within the workers’ compensation system so as to permit them to pursue a judicial review remedy of a 1980 boards of review decision; whether the Appeal Division had jurisdiction to review a boards of review decision for unfairness, or extend the time to appeal a boards of review decision; and, whether challenges to the WCAT decisions in this case were moot.

Pistell v. Worker’s Compensation Appeal Tribunal, BCSC (March 29, 2012) | Summary (PDF, 17KB)
The Court dismissed the petition for judicial review of a Workers’ Compensation Appeal Tribunal (WCAT) original decision and reconsideration decision. There was some evidence to support the original panel’s conclusion that the Petitioner’s shoulder tendon tear did not arise out of and in the course of his employment. Therefore, the reconsideration panel was not patently unreasonable in upholding the original decision. Nor was it patently unreasonable in dismissing the Petitioner’s new evidence application. The panel found that the medical report that the Petitioner sought to tender as new evidence was similar in substance to medical opinions considered by the original panel, and concerned evidence which existed at the time of the original decision and which could have been discovered through the exercise of reasonable diligence.

Whetung v. Workers’ Compensation Board of British Columbia, BCCA (March 13, 2012) | Summary (DOC, 35KB)
The Workers’ Compensation Board, operating as WorkSafeBC (Board), applied to be added as a respondent to a petition. The chamber’s judge denied the application. The Court of Appeal concluded that the appeal should be allowed and the Board be added as a respondent to the judicial review proceeding.

Fincaryk v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (March 8, 2012) | Summary (DOC, 45KB)
The Court allowed the petition for judicial review, setting aside both the Original Decision, and the Reconsideration Decision that upheld it. The Court found that the Workers’ Compensation Appeal Tribunal (WCAT) was patently unreasonable in finding that the Petitioner’s eligibility for a loss of earnings permanent disability award was finally determined in a decision that indicated “Loss of earnings: Not applicable”.

Goulding v. British Columbia (Workers’ Compensation Board), BCSC (February 24, 2012) | Summary (DOC, 35KB)
The Court dismissed the petition for judicial review of the WCAT decision. WCAT had found that the Petitioner, who injured his lower back while working as a stage rigger, was entitled to a permanent partial disability award based on 7.86% of total disability, using the permanent functional impairment method. The Board determined that the Petitioner would not suffer a loss of earnings if he accepted the Board’s offer of vocational rehabilitation training and, therefore, was not entitled to a pension calculated using the loss of earnings method. The Court concluded that WCAT’s original decision was neither patently unreasonable nor the result of a process that was unfair to the Petitioner.

Franzke v. Workers’ Compensation Appeal Tribunal, BCCA (February 15, 2012) (PDF, 366KB) | Summary (PDF, 12KB)
The B.C. Court of Appeal denied the applicant’s request to extend the time for filing and serving a notice of appeal pursuant to s. 10(1) of the Court of Appeal Act.

Johnson v. British Columbia (Workers’ Compensation Board), SCC (January 19, 2012) (PDF, 139KB) | Summary (PDF, 10KB)
The application for leave to appeal form the Judgment of the Court of Appeal for British Columbia 2011 BCCA 255 dated June 2, 2011, was dismissed without costs by the Supreme Court of Canada. The Court of Appeal had allowed the appeal, finding that the respondent had failed to exhaust the internal remedy available under section 251 of the Workers Compensation Act.

Henthorne v. British Columbia Ferry Services Inc., BCCA (November 24, 2011) | Summary (PDF, 21KB)
The appeal from the judgment of the B.C Supreme Court 2011 BCSC 409, was dismissed by the B.C. Court of Appeal. The Court of Appeal found that the Chambers Judge made no errors when it concluded that: (1) it was not patently unreasonable for WCAT to find that the employer could discharge the reverse onus under section 152(3) of the Workers Compensation Act, the discriminatory action provision, by hearing from some, but not all of the decision makers; and (2) it was not patently unreasonable for WCAT to conclude that the employer discharged its burden of proof in this case.

Currie v. British Columbia (Workers’ Compensation Board), BCCA (November 4, 2011) | Summary (PDF, 18KB)
The Court allowed an appeal from a chambers judge’s order quashing a decision of the Review Division. The Court found that, contrary to the chambers judge’s conclusion, the Review Division’s decision, which had upheld the Board’s decision not to pay the Appellant retroactive vocational rehabilitation benefits for a certain time period, was reasonable.

Young v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (September 8, 2011) | Summary (PDF, 20KB)
The Court allowed the petition for judicial review and set aside the WCAT decisions. WCAT had found that the petitioner could be a bookkeeper with appropriate vocational rehabilitation training and was entitled to a partial loss of earnings permanent disability award under the former provisions of the Workers Compensation Act. The Court found that the original WCAT decision was patently unreasonable for not considering that aspect of a policy of the Workers’ Compensation Board that required one to consider whether a worker was competitively employable. The Court also found that the original WCAT decision was procedurally unfair in not permitting the worker to cross-examine the Board’s vocational rehabilitation consultant.

Franzke v. Workers’ Compensation Appeal Tribunal, BCSC (August 23, 2011) | Summary (PDF, 18KB)
The Court dismissed the petition for judicial review. The petitioner was injured in a motor vehicle accident and an issue arose in the resulting lawsuit whether the lawsuit was barred by section 10 of the Workers Compensation Act. In an application under section 257 of the Workers Compensation Act WCAT found that the petitioner was a worker at the time of the accident and that her injuries arose out of and in the course of her employment as she had been in the course of travel between two points of work. The Court found that the WCAT decision was neither patently unreasonable nor procedurally unfair. The petitioner had argued that WCAT had failed to investigate and had failed to require production of a transcript of an examination for discovery of the petitioner.

Downs Construction Ltd. v. Workers’ Compensation Appeal Tribunal, BCSC (August 18, 2011) | Summary (PDF, 19KB)
Downs Construction Ltd. v. Workers’ Compensation Appeal Tribunal, BCSC (August 18, 2011) The Court dismissed the petition for judicial review. The petitioner had sued her employer and her supervisor for damages arising from an alleged humiliating incident at work. She also brought an appeal from a decision of the Workers’ Compensation Board that held that she was not entitled to compensation. WCAT denied her appeal and decided in an application under section 257 of the Workers Compensation Act that the incident in question was not unexpected and therefore could not be the basis for a mental stress claim. For this reason, her injuries did not arise out of and in the course of her employment. The Court found that WCAT’s decision was not patently unreasonable.

Steinbacher v. Ocean Blue Cedar Products Ltd. and Worker’s Compensation Appeal Tribunal, BCSC (August 10, 2011) (PDF, 359KB) | Summary (PDF, 14KB)
The Court dismissed the petition for judicial review finding that the WCAT Decision before it, which concluded that the Petitioner’s right knee injury was not a compensable consequence of her left knee injury, was not patently unreasonable.

Jensen v. Workers’ Compensation Appeal Tribunal, BCCA (July 6, 2011) | Summary (PDF, 18KB)
The Court dismissed an appeal from a chambers judge’s dismissal of a petition from a Workers’ Compensation Appeal Tribunal (WCAT) decision. WCAT had found that the (appellant) worker’s rheumatoid arthritis was not caused, activated, or accelerated by his earlier compensable injury.

Johnson v. British Columbia (Workers’ Compensation Board) , BCCA (June 2, 2011) | Summary (PDF, 26KB)
In a unanimous decision, the Court of Appeal set aside the September 9, 2009 decision of the BCSC and dismissed the judicial review petition. The Court found that the respondent had failed to exhaust the internal remedy available under section 251 of the Workers Compensation Act.

Phillips v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (May 3, 2011) | Summary (PDF, 78KB)
The Court dismissed the petition for judicial review. It found that the WCAT decision relating to the Petitioner’s long term wage rate was not patently unreasonable and that the panel did not fetter its discretion in its application of item #67.21 of the Rehabilitation Services and Claims Manual, Volume I (Class Averages/New Entrants to Labour Force). The Court also found that WCAT provided adequate reasons for its decision.

Squires v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (May 3, 2011) | Summary (PDF, 88KB)
The Court allowed the petition for judicial review and set aside the WCAT decisions. It found that WCAT acted unfairly when it failed to postpone an oral hearing.

Currie v. British Columbia (Workers’ Compensation Board), BCSC (April 29, 2011) | Summary (PDF, 16KB)
The petitioner argued she was entitled to some combination of retroactive income continuity benefits. After reviewing the long history of decisions of WorkSafeBC and WCAT pertaining to the petitioner, the Court found that it was only the final decision of WorkSafeBC respecting vocational rehabilitation benefits that was properly the subject of review. The court held that WorkSafeBC’s decision that the petitioner was not entitled to certain retroactive vocational rehabilitation benefits did not meet the standard of reasonableness articulated by the Supreme Court of Canada in Dunsmuir v. New Brunswick.

Lysohirka v. British Columbia (Workers’ Compensation Board) , BCSC (April 11, 2011) | Summary (PDF, 76KB)
In dismissing this petition for judicial review, the court determined that WorkSafeBC’s requirement for evidence of participation in vocational rehabilitation activities, as a prerequisite for receiving retroactive vocational rehabilitation benefits, was a reasonable exercise of WorkSafeBC’s discretion.

Henthorne v. British Columbia Ferry Services Inc., BCSC (April 1, 2011) | Summary (PDF, 68KB)
In this judicial review the Court considered a decision by the Workers’ Compensation Appeal Tribunal which found that the employer had not engaged in discriminatory action against one of its employees and therefore had not acted contrary to section 151 of the Workers Compensation Act.

Jozipovic v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (March 18, 2011) | Summary (PDF, 92KB)
The Court allowed the petition and set aside the WCAT decisions. The Court determined that the original WCAT decision was patently unreasonable to the extent that it concluded that a worker is precluded from a receiving a functional permanent disability award on the basis of a loss of range of motion in cases where the loss of range of motion is due to chronic pain. The Court also found an aspect of the policy on loss of earnings permanent disability awards (item #40.00 of the Rehabilitation Services and Claims Manual, Volume II) was unreasonable as it could not be rationally supported by the Workers Compensation Act.

Kerton v. Workers’ Compensation Appeal Tribunal, BCCA (January 10, 2011) | Summary (PDF, 14KB)
This was an appeal of Kerton v. Workers’ Compensation Appeal Tribunal, 2010 BCSC 644. The Court of Appeal allowed the appeal and concluded the correct standard of review of WCAT’s decisions was patent unreasonableness. Section 254 of the Workers Compensation Act manifestly places the issue of an extension of an appeal period under section 243(3) under the exclusive jurisdiction of WCAT. The Court found that WCAT’s interpretation of section 243(3) was well within the range of interpretative options.

Emergency and Health Services Commission v. Wheatley, BCSC (December 9, 2010) | Summary (PDF, 20KB)
In this judicial review the Court considered a decision by the Workers’ Compensation Appeal Tribunal (WCAT) which found that the employer had engaged in discriminatory action against one of its employees contrary to section 151 of the Workers Compensation Act (Act).

Cannon v. Workers’ Compensation Appeal Tribunal, BCSC (November 26, 2010) (PDF, 648KB) | Summary (PDF, 76KB)
The Court allowed the petition for judicial review and set the original panel’s decision aside. It found that WCAT had acted unfairly in denying the worker’s request for an oral hearing, in the specific circumstances of this case.

Lalli v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (October 26, 2010) | Summary (DOC, 33KB)

Viking Logistics Ltd. v. British Columbia (Workers’ Compensation Board), BCSC (September 22, 2010) | Summary (PDF, 16KB)
In this judicial review the Court considered a decision by the Workers’ Compensation Appeal Tribunal which addressed the date from which interest is payable by the Workers’ Compensation Board, operating as WorkSafeBC under section 259(2) of the Workers Compensation Act.

Djakovic v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (September 10, 2010) | Summary (PDF, 16KB)
In this judicial review, the Court considered three decisions by the Workers’ Compensation Appeal Tribunal which dealt with a number of issues including whether the Petitioner was entitled to an award for upper extremity nerve impairment or symptoms, and whether the Petitioner was entitled to a loss of earnings assessment under section 23(3) of the Workers Compensation Act.

Kerton v. Workers’ Compensation Appeal Tribunal, BCSC (May 5, 2010) | Summary (PDF, 14KB)
This judicial review addressed the issue of whether section 243(3) of the Workers Compensation Act confers on the Workers’ Compensation Appeal Tribunal (WCAT) a residual discretion to deny an extension of the time to appeal where the special circumstances and injustice criteria have been met.

Sidhu v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (March 4, 2010) | Summary (PDF, 18KB)
In this judicial review, the Court considered a reconsideration decision by the Workers’ Compensation Appeal Tribunal (WCAT) which upheld an earlier WCAT decision that dealt with a number of issues including the permanent disability award of a sawmill worker with right hand injuries.

Jensen v. Workers’ Compensation Appeal Tribunal, BCSC (March 1, 2010) | Summary (PDF, 16KB)
In this judicial review, the Court considered a decision of the Workers’ Compensation Appeal Tribunal which found that the worker’s rheumatoid arthritis was not caused, activated, or accelerated by his earlier 1994 compensable injury.

Lavigne v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (January 1, 2010) | Summary (PDF, 10KB)
The Petitioner sought judicial review of a reconsideration decision of the Workers’ Compensation Appeal Tribunal (WCAT) on the basis that WCAT failed to follow the earlier order of the court in Lavigne v. British Columbia (Workers Compensation Review Board), 2008 BCSC 1107.

Chima v. Workers’ Compensation Appeal Tribunal, BCSC (November 17, 2009) | Summary (PDF, 17KB)
In this judicial review the Court considered a decision of the Workers’ Compensation Appeal Tribunal which found that the worker’s psychological disorder was not related to his compensable right-sided low back strain injury, but rather was related to a non-compensable disc protrusion, was patently unreasonable.

Srochenski v. Workers’ Compensation Appeal Tribunal, BCSC (November 2, 2009) | Summary (PDF, 18KB) | Court Addendum (January 21, 2010) (PDF, 16KB)
In this judicial review, the Court considered three decisions of the Workers’ Compensation Appeal Tribunal (WCAT). The Court dismissed the petition against one of the WCAT decisions, and with respect to the remaining two decisions remitted the matter back to WCAT to consider the evidence that the current symptoms were not entirely the result of natural degeneration.

Woods v. British Columbia (Workers’ Compensation Board), BCSC (October 14, 2009) | Summary (PDF, 26KB)
In this judicial review the Court considered a decision by the Workers’ Compensation Appeal Tribunal which considered whether the worker, a refrigeration mechanic, was still temporarily disabled as a result of his compensable injury after April 3, 2006, and whether policy #35.30 of the Rehabilitation Services and Claims Manual was patently unreasonable.

Buttar v. Workers’ Compensation Appeal Tribunal, BCSC (September 8, 2009) | Summary (PDF, 24KB)
In this judicial review the Court considered a section 257 (certification to court) decision by the Workers’ Compensation Appeal Tribunal (“WCAT”) which determined that the Respondent Galleto was a worker, and that his injuries arose out of his employment but did not arise in the course of his employment.

Page v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (August 4, 2009) | Summary (PDF, 24KB)
This was an application for costs against the Workers’ Compensation Appeal Tribunal. The Court, applying the principle in Lang v. British Columbia (Superintendent of Motor Vehicles) 2005 BCCA 244 that generally an administrative tribunal will neither be entitled to costs nor be ordered to pay costs, dismissed the petitioner’s claim for costs.

Johnson v. British Columbia (Workers’ Compensation Board), BCSC (July 2, 2009) | Summary (PDF, 25KB) | Order (entered September 30, 2009) (PDF, 94KB)
The BC Supreme Court considered issues which had been referred back to it by the Court of Appeal, in particular the question of whether the BC Supreme Court can address a new argument on judicial review not raised before the tribunal. This question was considered in light of the Workers’ Compensation Board, operating as WorkSafeBC (Board) policy on interest with respect to retroactive payments.

Canadian Broadcasting Corporation v. Luo , BCCA (June 29, 2009) | Summary (PDF, 14KB)
In this judicial review the Court of Appeal considered whether the Workers’ Compensation Board, operating as WorkSafeBC (Board) has jurisdiction to determine whether or not an individual claimant is an “employee” for the purpose of the federal Government Employees Compensation Act (GECA).

Plesner v. British Columbia Hydro and Power Authority, BCCA (April 30, 2009) | Summary (PDF, 25KB)
At issue before the Court was whether the mental stress provisions in section 5.1 of the Workers Compensation Act (Act) and item #13.30 of Rehabilitation Services and Claims Manual, Volume II (RSCM II) were constitutional and whether the Workers’ Compensation Appeal Tribunal decision denying compensation for mental stress was patently unreasonable.

Page v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (April 14, 2009) | Summary (PDF, 24KB)
This was a petition for judicial review of a decision by the Workers’ Compensation Appeal Tribunal (WCAT) which considered the Petitioner’s claim for compensation which was requested on the basis that she was unable to work due to post traumatic stress disorder (PTSD).

Bagri v. Workers’ Compensation Appeal Tribunal, BCSC (March 6, 2009) | Summary (PDF, 26KB)
This was a petition for judicial review of a decision by the Workers’ Compensation Appeal Tribunal (“WCAT”) which considered the Petitioner’s permanent functional impairment award.

Manz v. Sundher, BCCA (February 27, 2009) | Summary (PDF, 24KB)
The Court of Appeal considered whether the B.C. Supreme Court had erred in re-weighing evidence on a judicial review of a Workers’ Compensation Appeal Tribunal decision. The Court of Appeal also addressed the issue of how to define patent unreasonableness in section 58 of the Administrative Tribunals Act (ATA) in light of Dunsmuir v. New Brunswick, 2008 SCC 9.

Asquini v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (January 23, 2009) | Summary (PDF, 24KB)
This was a petition for judicial review of a decision by the Workers’ Compensation Appeal Tribunal (WCAT) which considered the Petitioner’s claim for a loss of earnings award. The Court also addressed a constitutional challenge to section 58 in the Administrative Tribunal Act (ATA).

Tallarico v. Workers’ Compensation Appeal Tribunal, BCSC (January 22, 2009) | Summary (PDF, 24KB)
This was a petition for judicial review of a decision by the Workers’ Compensation Appeal Tribunal (WCAT) which considered the Petitioner’s claim for a loss of earnings award. The Court also addressed how patent unreasonableness in section 58 of the Administrative Tribunal Act (ATA) is to be defined in light of Dunsmuir v. New Brunswick, 2008 SCC 9.

Buttar v. Workers’ Compensation Appeal Tribunal, BCSC (January 13, 2009) | Summary (PDF, 23KB)
The Court considered a preliminary objection by the Petitioners with respect to the standing of the Workers’ Compensation Appeal Tribunal’s (WCAT) in a judicial review proceeding of a WCAT decision.

Lavigne v. British Columbia (Workers Compensation Review Board), BCSC (December 4, 2008) (PDF, 124KB) | Summary (PDF, 23KB)
This was an application for costs against the Workers’ Compensation Appeal Tribunal (WCAT). The Court, applying Lang v. British Columbia (Superintendent of Motor Vehicles) 2005 BCCA 244, found that there was no misconduct or perversity in the proceedings before WCAT, nor did WCAT argue the merits of a judicial review application rather than its own jurisdiction. Accordingly, the Court found that each party should bear its own costs.

Johnson v. Workers’ Compensation Board of British Columbia, BCCA (November 5, 2008) | Summary (PDF, 20KB)
The B.C. Court of Appeal considered an appeal of an order certifying a proceeding regarding the Workers’ Compensation Board, operating as WorkSafeBC, policy on interest on retroactive payments as a class proceeding under the Class Proceedings Act.

Johnson v. WCB, BCSC (October 21, 2008) | Summary (PDF, 23KB)
This was an application for an order by the Workers’ Compensation Board, operating as WorkSafeBC (Board), that the B.C. Supreme Court (BCSC) judge disqualify herself from hearing matters remitted back to the BCSC by the B.C. Court of Appeal on the basis that there was a reasonable apprehension that the BCSC judge would be biased in deciding the issues.

Redae v. Workers’ Compensation Appeal Tribunal, BCCA (October 1, 2008) | Summary (PDF, 24KB)
This was an application to the Court of Appeal for indigent status and an extension of time to bring an application for leave to appeal a judicial review decision.

Canadian Broadcasting Corporation v. Luo, BCCA (August 15, 2008) | Summary (PDF, 19KB)
The B.C. Court of Appeal considered an application by Canada Post for intervener status in the CBC’s appeal from the dismissal of its petition to quash a decision of the Workers’ Compensation Appeal Tribunal.

Lavigne v. British Columbia (Workers Compensation Review Board), BCSC (August 15, 2008) | Summary (PDF, 24KB)
This was a petition for judicial review of a decision by the Workers’ Compensation Appeal Tribunal (WCAT) which considered the Petitioner’s long term wage rate.

Redae v. Workers’ Compensation Appeal Tribunal, BCSC (July 18, 2008) | Summary (PDF, 24KB)
This was a petition for judicial review of a decision by the Workers’ Compensation Appeal Tribunal (WCAT) which summarily dismissed the Petitioner’s appeal of a decision of the Review Division of the Workers’ Compensation Board (Board) under section 31(1)(f) of the Workers Compensation Act.

Johnson v. Workers’ Compensation Board, BCCA (May 27, 2008) | Summary (PDF, 26KB)
The Court of Appeal (BCCA) considered whether the B.C. Supreme Court (BCSC) can decide an issue of first instance (the legality of the new interest policy) when that issue was not determined by the decision of the Workers’ Compensation Appeal Tribunal under review.

Gogol v. Workers’ Compensation Appeal Tribunal, BCSC (April 22, 2008) | Summary (PDF, 25KB)
The Court considered the issue of the burden of proof in a Workers’ Compensation Appeal Tribunal (WCAT) decision which determined whether the Petitioner was entitled to wage loss benefits when injured on what was to have been his last day of work before being laid off by his employer.

Manz v. Workers’ Compensation Appeal Tribunal and Sundher, BCSC (December 7, 2007) | Summary (PDF, 24KB)
The Court considered a Workers’ Compensation Appeal Tribunal (WCAT) decision about whether the Petitioner, who was involved in motor vehicle accident on his employer’s property, was a worker and whether his injury arose out of and in the course of employment.

Herbaut v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (November 16, 2007) | Summary (PDF, 24KB)
The Court considered the Petitioner’s application to set aside a decision by the Workers’ Compensation Appeal Tribunal (WCAT) that denied him an extension of time to appeal a review officer’s decision.

Schulmeister v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (October 29, 2007) | Summary (PDF, 24KB)
The Court considered a Workers’ Compensation Appeal Tribunal (WCAT) decision which denied the Petitioner’s appeal for dependant survivor’s benefits.

Baker v. Workers’ Compensation Appeal Tribunal, BCSC (October 15, 2007) | Summary (PDF, 25KB)
The Court considered the Petitioners allegations that the Workers’ Compensation Appeal Tribunal (WCAT) decision erred on a number of substantive and procedural issues including: whether the Petitioner’s psychological condition was work related; the duration and extent of temporary disability benefits; failure to order production of the Petitioner’s personnel file from his employer; and, failure to issue subpoenas.

Johnson v. Workers’ Compensation Board, BCSC (September 26, 2007) | Summary (PDF, 24KB)
This was a judicial review of the Workers’ Compensation Appeal Tribunal (WCAT) precedent panel’s decision regarding the new interest policy on retroactive disability awards of the Workers’ Compensation Board, operating as WorkSafeBC (Board).

Hill v. WCB, BCSC (August 3, 2007) | Summary (PDF, 24KB)
The Court considered whether the Workers’ Compensation Appeal Tribunal (WCAT) decision was patently unreasonable when it interpreted the mental stress policy of the Workers’ Compensation Board, operating as WorkSafeBC (Board) as involving an objective test to determine whether an event was traumatic.

Daniel v. (British Columbia) Workers’ Compensation Appeal Tribunal, BCSC (July 6, 2007) | Summary (PDF, 24KB)
In this judicial review the Court considered a Workers’ Compensation Appeal Tribunal (WCAT) decision which dealt with the issues of average earnings calculation and the employability of a worker, as well as the effect of new evidence on a reconsideration application.

Canadian Broadcasting Corporation v. Lijun Luo, BCSC (July 4, 2007) | Summary (PDF, 26KB)
In this judicial review the Court considered whether the Workers’ Compensation Board, operating as WorkSafeBC (Board) has jurisdiction to determine whether or not an individual claimant is an “employee” for the purpose of the federal Government Employees Compensation Act (GECA).

Baldwin v. Workers’ Compensation Appeal Tribunal, BCSC (June 28, 2007) | Summary (PDF, 24KB)
In this judicial review the Court considered a Workers’ Compensation Appeal Tribunal (WCAT) decision which denied the Petitioner’s application for an extension of time to bring an appeal from a decision of the Review Division of the Workers’ Compensation Board, operating as WorkSafeBC (Board).

Cianelli v. Workers’ Compensation Board of B.C., BCSC (June 15, 2007) | Summary (PDF, 24KB)
In this judicial review the Court considered whether the correct test for causation was applied by the Workers’ Compensation Appeal Tribunal (WCAT) when determining if the Petitioner’s back and leg symptoms were caused by workplace accidents.

Johnson v. Workers’ Compensation Board et al., BCSC (January 9, 2007) | Summary (PDF, 24KB)
The Court considered an application for an order certifying a proceeding regarding the Workers’ Compensation Board, operating as WorkSafeBC (Board) policy on interest on retroactive payments as a class proceeding under the Class Proceedings Act.

Plesner v. British Columbia Hydro and Power Authority et al, BCSC (October 10, 2006) | Summary (PDF, 24KB)
At issue before the Court was whether the mental stress provisions in section 5.1 of the Workers Compensation Act (Act) were constitutional and whether the Workers’ Compensation Appeal Tribunal (WCAT) decision denying compensation for mental stress was patently unreasonable.

Albert v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (May 31, 2006) | Summary (PDF, 28KB)
In this judicial review the Court considered a decision by the Workers’ Compensation Appeal Tribunal (WCAT) which determined whether the Petitioner’s back-injury was work related.

Wyant v. British Columbia (Workers’ Compensation Board) et al., BCSC (April 27, 2006) | Summary (PDF, 24KB)
The Court considered whether a Workers’ Compensation Appeal Tribunal (WCAT) decision which refused Mr. Wyant’s appeal because there was no evidence independent of his assertions concerning his pre-injury work history was patently unreasonable.

Wu v. Workers’ Compensation Appeal Tribunal, BCSC (October 14, 2005) | Summary (PDF, 25KB)
The Court considered the Workers’ Compensation Appeal Tribunal (WCAT) decision which found that the Petitioner, a machinist, was not eligible for vocational rehabilitation benefits.

Basura v. British Columbia (Workers’ Compensation Board) et al., BCSC (March 21, 2005) | Summary (PDF, 24KB)
In this judicial review the Court considered a Workers’ Compensation Appeal Tribunal (WCAT) decision which addressed whether the Petitioner had a permanent partial disability from a workplace injury involving lifting boxes.

Harris v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (March 15, 2005) | Summary (PDF, 20KB)
The Court addressed the issue of costs arising from the dismissal of a judicial review petition of a decision by the Workers’ Compensation Appeal Tribunal (WCAT).

Harris v. British Columbia (Workers’ Compensation Appeal Tribunal), BCSC (December 6, 2004) | Summary (PDF, 24KB)
In this judicial review the Court considered whether the Workers’ Compensation Appeal Tribunal (WCAT) exceeded its jurisdiction in finding the Petitioner, who was injured while on a business trip in British Columbia, to be a worker within the meaning of the Workers’ Compensation Act (Act).