Chinook Scaffolding Systems Ltd. v. Workers' Compensation Appeal Tribunal and Anthony Sooke

2014 BCSC 997 Chinook Scaffolding Systems Ltd. v. British Columbia (Workers' Compensation Appeal Tribunal)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Chinook Scaffolding Systems Ltd. v. British Columbia (Workers' Compensation Appeal Tribunal) , 2014 BCSC 997 Date: 20140328 Docket: S130603 Registry: Vancouver Between: Chinook Scaffolding Systems Ltd. Petitioner And Workers' Compensation Appeal Tribunal and Anthony Sooke Respondents Before: The Honourable Mr. Justice Butler On judicial review from: Workers' Compensation Appeal Tribunal decision November 26, 2012 (WCAT-2012-03082) Oral Reasons for Judgment In Chambers Counsel for the Petitioner: L.E. Cook Counsel for the Respondent Workers' Compensation Appeal Tribunal: J.T. Lovell Counsel for the Respondent Anthony Sooke: K. Cooper Place and Date of Trial/Hearing: Vancouver, B.C. March 11, 2014 Place and Date of Judgment: Vancouver, B.C. March 28, 2014 [1] THE COURT: Anthony Sooke sustained an injury to his left hand while working for Chinook Scaffolding Systems Ltd. (the "Employer") on August 25, 2011. He advanced a claim for wage loss benefits arising from the injury. He was off work until September 19, 2011, when he returned to work at a site operated by the Employer to participate in a return-to-work program. Pursuant to the program, he carried out modified duties. After approximately six hours of performing those modified duties, Mr. Sooke's left wrist and hand were swollen, and he returned home to seek medical attention.

The medical note prepared by his family doctor indicated that he was "unable to work". He was referred to see a specialist, who confirmed the nature of the injuries. His claim for wage loss benefits arising from the work injury included claims for benefits for the periods both before and after September 19, 2011. [2] In a decision letter dated October 13, 2011, the Workers' Compensation Board (the "WCB") allowed his claim up to September 18, 2011, but, because he had been offered appropriate modified duties by the Employer, found that he was not entitled to wage loss benefits after that date. Both Mr. Sooke and the Employer sought a review of the decision. The review decision issued on February 20, 2012, upheld the finding that Mr. Sooke was entitled to temporary wage loss benefits before September 19th, and also found him entitled to benefits beyond that date. [3] The Employer then appealed the review decision. In a decision dated November 26, 2012, the Workers' Compensation Appeal Tribunal ("WCAT") denied the Employer's appeal. The Employer now seeks a judicial review of that decision. [4] For the reasons that follow, I am dismissing the Employer's application for judicial review. The WCAT Decision [5] The appeal was conducted by means of a review of the claim filed and the written submissions of Mr. Sooke and the Employer. The WCAT decision considered two issues on

appeal: (a) Was the worker offered appropriate modified duties by the Employer after September 18, 2011; and (b) If the Employer did offer Mr. Sooke appropriate modified duties for the period beyond September 18, 2011, did he unreasonably refuse those duties? [6] The panel conducted a full review of the factual background and referred to all of the medical evidence. I will set out some of that factual background as it appears in the WCAT decision. [7] The Employer provides scaffolding services and Mr. Sooke was employed on a temporary basis at the time of the injury. He was injured in the early morning hours of August 25, 2011. He suffered a crush injury to his left hand and wrist, which was initially reported to a first aid officer. That officer noted only the hand injury. [8] Mr. Sooke attended his family doctor, Dr. Sabir, who prepared a physician's report on August 26, 2011 using the WCB form. Dr. Sabir noted the wrist and hand injuries, and opined that Mr. Sooke was not capable of working full duties full time. He said the estimated time before which the worker would be able to return to the workplace in any capacity was 7 to 13 days. A further report from Dr. Sabir on August 30, 2011 indicated that Mr. Sooke would be unable to return to work for 14 to 20 days. [9] On September 13, 2011, the worker saw Dr. Walter, another physician working at the same medical clinic as Dr.

Sabir. Dr. Walter recorded that Mr. Sooke still had a tender left wrist and a painful thumb. He prescribed Naproxen and recommended physiotherapy. He said Mr. Sooke was unable to work and would continue to be unable to work for more than 20 days. [10] The Employer was concerned about the claim and indicated to the WCB that it had a very good return-to-work program and it wanted Mr. Sooke to participate. The panel noted that the Employer expressed scepticism about the injury, because the first aid report only mentioned a finger injury and also, on the day of the injury, the worker was about to be laid off. [11] The Employer then asked Mr. Sooke to attend in Prince George to work doing modified duties (the "Temporary Modified Duties"). He drove to Prince George and reported at the workplace on September 19, 2011. He was asked by Mr. Jonkman, one of the Employer's safety representatives, "if he could work in a manner as not to further injure his left hand". He said he would attempt to do that. He worked for approximately six hours. The Employer presented evidence that the worker was observed performing work and that he did not appear to be having difficulty. At some point in the day, Mr. Jonkman discussed with Mr. Sooke a plan for putting a more detailed description of the formal modified work program on paper. He asked Mr. Sooke to obtain a medical assessment. Mr. Jonkman

provided Mr. Sooke with a form used by the Employer (the "Chinook form"), and requested Mr. Sooke to go to a walk-in clinic in Prince George. [12] Mr. Sooke did not go to a clinic in Prince George. Later that day, he returned to Vancouver to see a doctor at his clinic for assessment and treatment. Dr. Walter saw him again on September 22, 2011 and filled out a further WCB physician's progress report form indicating that Mr. Sooke was unable to work and would not be able to return to the workplace in any capacity for at least 20 days. He referred Mr. Sooke to an orthopaedic specialist for further assessment and treatment. [13] Mr. Sooke saw Dr. Vaisler, the specialist, on October 5, 2011, and again on October 19, 2011. Dr. Vaisler provided brief reports following both visits. He diagnosed a left wrist contusion and a particular form of tendonitis in the left wrist. He recommended active physiotherapy, anti-inflammatory medications, and full-time splinting of the wrist. In his later report on October 19, 2011, he recommended modified full-time work and set out restrictions that would apply to that work. [14] In the WCAT decision under the heading "Law and Policy", it is noted that WCB Policy No. 34.11 of the Rehabilitation Services and Claims Manual, which deals with Selective/Light Employment, is applicable to the case. The policy establishes four criteria which must be met "to

ensure that the early return to work is appropriate". The four criteria can be summarized as follows: a) the worker must be capable of undertaking some form of suitable employment; b) the work must be safe, in the sense that it cannot harm the worker or slow recovery; c) the work must be productive; and d) within reasonable limits, the worker must agree to the arrangement. [15] The WCAT decision incorrectly sets out, in the body of the decision, the older version of the criteria at the start of its analysis. The decision turns on the application of the second of the four criteria. [16] The 2005 version of the second criterion is the one that is applicable to Mr. Sooke's claim. The 2002 version of the second criterion was no longer in force. I will set out the wording of those two versions. The 2002 version reads: The work must be safe for the worker to perform. The worker's attending physician must be apprised of the nature of the work and conclude that it will neither harm the worker nor slow recovery. Should the attending physician be unable or unwilling to provide the required advice, a Board medical advisor must make the necessary determination; [17] The 2005 version reads: The work must be safe, that is, it will neither harm the worker nor slow recovery. The work must be within the worker's medical restrictions, physical limitations and abilities. Where there is a

disagreement regarding the safety of the selective/light offer and the Board is required to intervene, the Board is responsible for determining the safety of the work after considering the medical evidence and other relevant information. [18] The substance of the panel's decision is set out under the heading, "Findings and Reasons". At paragraph 80, the panel states: The policy also, however, requires that the proposed modified duties be safe and within the worker's medical restrictions, physical limitations and abilities. The employer acknowledged that requirement by advising the worker that prior to continuing with the modified work duties he must obtain a medical note from a physician, advising that he could continue. While the employer has argued that the worker should have simply gone to a local clinic for such a note, I do not find it was unreasonable for the worker to seek the opinion of the medical practitioner he had been seeing for his condition since his work injury. [Emphasis added.] [19] I note that the first sentence of paragraph 80 uses the language of the current version of the second criterion. [20] The decision goes on to note that the only expert medical opinion on whether Mr. Sooke could return to work with the Temporary Modified Duties was Dr. Walter's September 22nd report, which said he was not fit to return to work. The panel notes that while the report

is brief, "it is a formal statement by a medical professional to the Board, providing a medical opinion that appears to be consistent with the objective medical evidence." [21] At paragraph 82, the panel notes: Clearly at the time the employer was offering modified duties to the worker it was not aware of, or did not accept, the seriousness of the worker's injuries. In fact, the worker's injury was more serious than the employer was at first willing to accept. The first opinion from a medical expert that the worker could undertake even modified duties was Dr. Vaisler's report of October 19, 2011. [22] At paragraph 83, the panel notes that, pursuant to Policy No. 34.11, where there is a dispute over whether modified duties are suitable, the Board's evaluation is to be "based on a detailed description of the employment being offered, including the physical requirements and detailed medical information outlining the worker's medial restrictions, physical limitations and abilities." I note that this reflects the language contained in the current version of the policy. [23] The panel goes on to conclude at paragraph 85: I find the evidence does not establish that the work proposed by the employer was consistent with the worker's restrictions and limitations caused by his temporary disability. In the absence of any contrary expert opinion I accept the evidence of Dr. Sabir (sic) and

Dr. Vaisler that the worker was not fit for return to modified duties on September 19, 2011. Position of the Employer [24] The Employer acknowledged that the standard of review of the decision is patent unreasonableness. It says that the decision in question is openly, clearly, and evidently unreasonable. The Employer offered Mr. Sooke the Temporary Modified Duties which the WCAT found were unsafe for him. The Employer says there is no rational basis on which that decision could be reached. Mr. Sooke's injury was to his left hand, and the modified duties offered were intended to be performed only with his uninjured hand. The medical evidence relied on by the WCAT did not evaluate either the safety of the modified duties or Mr. Sooke's medical limitations, as it was required to do pursuant to Policy No. 34.11. [25] The Employer argues that WCAT's acceptance of the inadequate medical notes from Mr. Sooke's physicians and its failure to apply the policy was patently unreasonable. Further, it says the result is absurd. There is no reason why a worker who has injured one hand cannot perform work with the other hand. It says that the WCB's Practice Directive No. C5-5, which covers Selective/Light Employment, supports its position. [26] The Employer also argues there was no rational basis for WCAT to conclude that Mr. Sooke's actions after September 19th were reasonable. The Employer

gave Mr. Sooke the Chinook form used for modified work and asked him to take it to a local clinic in Prince George to have it completed, but instead he abandoned the worksite and returned to Vancouver to see his own doctor. [27] The Employer says that when Mr. Sooke returned to Vancouver, he did not see his treating physician, which makes the Board's finding that it was reasonable to seek attention from the treating doctor patently absurd. By failing to have the Chinook form completed, the Employer argues that Mr. Sooke robbed it of the opportunity to develop appropriate modified work duties. This frustrated the Employer's program to get injured employees back to work and is contrary to the WCB policy. The Employer says the obvious defects in the decision meet the test of patent unreasonableness. Position of Mr. Sooke. [28] Mr. Sooke agrees that, pursuant to s. 82 of the Workers Compensation Act, R.S.B.C. 1996, c. 492 ("WCA"), the WCAT is required to apply Policy No. 34.11 to the case. The issue raised by the case is one of mixed fact and law and, accordingly, he agrees the standard of review is patent unreasonableness. Mr. Sooke says that it is the outcome, not the reasoning, which must fall within a range of acceptable and rational solutions. Here he argues the result falls within that range. [29] There was clear evidence before the panel, in the form of Dr. Walter's and Dr.

Vaisler's reports regarding Mr. Sooke's medical condition and inability to work after attempting modified duties. He says that the Employer is asking this court to reweigh the evidence, which it cannot do on judicial review. [30] Mr. Sooke also says the conclusion of the panel that it was reasonable for Mr. Sooke to return to Vancouver to see his physician was an acceptable and rational conclusion, based on the evidence. The Employer is again asking the court to second guess the conclusions the panel drew from the evidence. Further, the Employer is wrong in suggesting that Mr. Sooke returned to see a doctor who was unfamiliar with the injury. Dr. Walter was the same physician who had assessed Mr. Sooke on September 13th. [31] In addition, Mr. Sooke argues that there is no need to consider the second issue. This is because any modified work program must meet all four of the criteria set out in the policy, before assessing if a refusal to perform modified duties was reasonable. Here the panel concluded that Temporary Modified Duties did not meet the second criterion. That being the case, the reasonableness of Mr. Sooke's refusal does not arise. Position of the WCAT [32] Where the standard of review is patent unreasonableness, WCAT notes that it has standing to make submissions aimed at demonstrating the decision was not patently unreasonable. [33] WCAT argues that the submissions

of the Employer incorrectly suggest that the panel relied solely on Dr. Walter's medical note of September 22nd, says that the panel clearly referred to and relied on all of the medical evidence, which included a first aid report, two reports of Dr. Sabir, two reports of Dr. Walter, and two reports from Dr. Vaisler. WCAT also notes that the Employer is incorrect in submitting that the panel ignored the only evidence of what the Employer offered for modified duties, which was the evidence of Mr. Jonkman. In fact, the WCAT decision clearly refers to the statement of J., which is Mr. Jonkman, and examines the Employer's argument that the modified duties given to Mr. Sooke did not require him to use his left hand. The WCAT says that upon an examination of the record, it is open for this court to find that the decision was not patently unreasonable. Analysis [34] Section 254 of the WCA confers on WCAT the exclusive jurisdiction to inquire into, hear, and determine all those matters and questions of fact, law, and discretion arising or required to be determined under Part 4 of the Act. There is no question that the WCAT had the exclusive jurisdiction over the matter of Mr. Sooke's right to receive temporary wage loss benefits. Section 255 of the WCA provides that "Any decision or action of the appeal tribunal under this Part is final and conclusive and is not open to question or

review in any court." In other words, the WCA contains a clear privative clause. Accordingly, pursuant to s. 58 of the Administrative Tribunals Act, S.B.C. 2004, c. 45, a finding of fact or law or an exercise of discretion by the tribunal in respect of a matter over which it has exclusive jurisdiction must not be interfered with, unless it is patently unreasonable. [35] In Vandale v. Workers' Compensation Appeal Tribunal, 2013 BCCA 391, the court reviewed the law delineating the meaning of the standard of patently unreasonable in the context of a judicial review of a WCAT decision. Justice Frankel noted that the standard requires a high degree of deference to the tribunal's decision, and referred to Justice Iacobucci's statement in Law Society of New Brunswick v. Ryan, 2003 SCC 20, that "[a] decision that is patently unreasonable is so flawed that no amount of curial deference can justify letting it stand." [36] The court in Vandale also approved of the summary of the meaning of the standard as set out in Speckling v. British Columbia (Workers Compensation Board), 2005 BCCA 80 at para. 37: Only if there is no evidence to support the findings, or the decision is "openly, clearly, evidently unreasonable", can it be said to be patently unreasonable. [37] With that standard in mind, the two issues raised by the Employer which I must consider on this review can be stated as

follows: (1) Was there a rational basis on which WCAT could find that the Temporary Modified Duties were unsafe for Mr. Sooke? (2) Was there a rational basis on which WCAT could find that Mr. Sooke's decision to return to Vancouver for medical assessment, rather than continue with the Temporary Modified Duties, was reasonable? (1) Was there a rational basis on which WCAT could find that the Temporary Modified Duties were unsafe for Mr. Sooke? [38] The main issue considered by the panel was whether the modified duties offered to Mr. Sooke on September 19th adequately accommodated him. In other words, were those duties safe for the worker within his medical restrictions, physical limitations, and abilities? It is clear from a review of the panel decision that this issue was considered in depth, and the decision was based on all of the evidence presented. This included all six medical reports that were issued regarding Mr. Sooke's medical condition. It also included the evidence offered by Mr. Jonkman regarding the discussions he had with Mr. Sooke. The evidence also included observations made by Mr. Jonkman regarding the duties performed by Mr. Sooke on September 19th, as well as second-hand information about what Mr. Sooke did on that date. [39] On this application for judicial review, the Employer has not been able to point to any evidence that was not considered by the panel

and referred to in the decision. In other words, it is evident that the decision was based on a consideration of all of the evidence. [40] An examination of the evidence easily leads to the conclusion that there was a rational basis on which the panel could conclude that the modified work offered to Mr. Sooke on September 19th could not be performed safely by him. There is evidence that he performed the work for six hours, at the end of which his wrist was swollen and painful. He returned to see Dr. Walter, the same doctor who had examined the wrist less than a week before September 19th. Dr. Walter determined that Mr. Sooke was unable to work. As the panel noted, the medical report was brief, but "it is a formal statement by a medical professional to the Board, providing a medical opinion that appears to be consistent with the objective medical evidence." [41] The panel also considered the subsequent reports by Dr. Vaisler, the specialist, which were consistent with the earlier medical reports in concluding that Mr. Sooke had a disabling left wrist injury. [42] The Employer's arguments are based on three alleged deficiencies in the WCAT decision: (1) that it relied on medical reports which did not contain a sufficient analysis of the nature of the injury and Mr. Sooke's ability to work; (2) that the panel failed to consider the Temporary Modified Duties; and (3) the panel

ignored Policy No. 34.11. There is no substance to any of these arguments. [43] I have already noted that the panel directly considered the argument that the medical reports were inadequate. As the panel noted, there was in fact a series of six medical reports, all of which were consistent in finding that Mr. Sooke had a disabling injury which persisted. The September 22nd medical report found that he was not able to work. Mr. Sooke's wrist had become swollen and painful while attempting the work. Dr. Vaisler concluded that, after treatment, he was able to carry out modified duties as of October 19th. [44] There was a body of medical evidence on which the panel could and did rely. There was no contrary evidence. The Employer is asking this court to reweigh the evidence and come to a different conclusion. That is not an exercise I can undertake on this review. [45] The complaint that the panel failed to consider the Temporary Modified Duties is also without substance. The Employer submits that Mr. Sooke was told to perform duties with one hand, and suggests that if he had done so, there is no way his left wrist could have been impacted. In other words, the Employer is asking the court to draw inferences contrary to the decision of the panel, based on the same evidence that was considered by the panel. [46] The decision makes it clear that the panel examined all of the evidence

about the nature and extent of the Temporary Modified Duties on September 19th. However, there was little concrete evidence. The Employer did not put in place a specific program with defined parameters. Rather, Mr. Sooke and Mr. Jonkman had an informal discussion which the panel fully considered in arriving at its decision. The conclusion that Mr. Sooke could not safely perform the Temporary Modified Duties was one the panel could easily reach on the basis of the evidence about those duties. Its conclusion was not openly, clearly, or evidently unreasonable. [47] It is also evident from the WCAT decision that the panel applied Policy No. 34.11 as it was required to do. I have referred to the passages in the decision that directly refer to the language in the current version of the policy. The panel considered if the work was safe, in the sense of whether it would harm Mr. Sooke or slow his recovery. It considered if the Temporary Modified Duties were within his "medical restrictions, physical limitations, and abilities". Finally, the decision considered the medical evidence and all other relevant information. [48] The decision does mistakenly refer to the earlier version of the policy; however, examination of the reasons makes it clear the decision was based on the current version. Even if that was not clear, it is the outcome, not the reasoning, which must fall within a range of acceptable and rational solutions: Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R.

708. Here, as I have explained, the outcome is clearly within the reasonable range. [49] In summary, there was a rational basis on which WCAT could find that the Temporary Modified Duties were unsafe. (2) Was there a rational basis on which WCAT could find that Mr. Sooke's decision to return to Vancouver for medical assessment, rather than continue with the Temporary Modified Duties, was reasonable? [50] The Employer's position on this issue is based on the adjudication that the Board must perform when a worker rejects an offer of modified duties. Policy No. 34.11 describes what the Board must do: Where a worker refuses to accept the offer, the Board will consider the reasons for refusal and determine if they are reasonable. In making this determination, the Board will give regard to the requirements of the work, medical opinion(s), and other evidence regarding the worker's medical restrictions, physical limitations, and abilities. [51] The Employer's position on this is somewhat misconceived. It suggests that Mr. Sooke should have gone to have the Chinook form filled out by a physician in Prince George after working on September 19th, so that it could establish a modified work program that suited his physical limitations. It argues that his refusal to do so frustrated the back-to-work policy, and that his actions in frustrating the policy should lead to a finding that Mr.

Sooke had no reasonable basis for not participating in some form of modified duties. [52] What this argument fails to appreciate is that Mr. Sooke did in fact accept the offer to perform the Temporary Modified Duties on September 19th. He did not refuse the offer. [53] In these circumstances, the Board was required to determine if the Temporary Modified Duties which he performed were safe. A determination was made that the Temporary Modified Duties were not safe for Mr. Sooke to perform. [54] Accordingly, as Mr. Sooke argues, the question of his refusal does not properly arise. If he attempted to perform, but could not safely perform, the only duties offered to him, then he has not refused. There was no requirement that the Board consider the reasons for his actions in the circumstances. [55] Of course, the panel did examine Mr. Sooke's actions and found that they were reasonable. Hence the argument was advanced on this judicial review. [56] If I am correct in concluding there was no need for the reasonableness of his actions to be considered, that is a complete answer on this judicial review to this issue. However, if I am wrong in that reasoning, I have no hesitation in concluding that there was a rational basis for the panel to conclude that Mr. Sooke's actions, after performing the Temporary Modified Duties, were reasonable. [57] The Employer's argument was based on a false

premise that Mr. Sooke returned to Vancouver to see a doctor who had no familiarity with his condition. He did return to be seen by his treating physician, who assessed him and prescribed further treatment. He was referred to physiotherapy and to see a specialist. In effect, Mr. Sooke did what he was asked by the Employer; he was asked to go to see a physician to be assessed. He simply chose to see his treating doctor, given the problems he was experiencing. [58] In summary, there was a body of evidence which the panel could and did accept in arriving at a conclusion that was rational. [59] That concludes my reasons. The application for judicial review is dismissed and costs will payable by the Employer to Mr. Sooke, and those will be on Scale B. "Butler J."