Notable New Decisions: Oct 2023

Published Categorized as Notable Decisions

Many thanks to the individuals who contribute to this section, including Kevin Love, Sarah O’Leary, Jim Parker and Jennifer Moreau.

Rear 2023 BCSC 151 (August 28, 2023)  WCAT Panels cannot discount medical evidence without contrary evidence

The B.C. Supreme Court has found that a WCAT panel was “patently unreasonable” in denying a worker’s ASTD claim for bi-lateral tendonitis. The decision, Rear v. WCAT 2023 BCSC 151 cites another recent court decision in another ASTD case – McHugh v. ICBC 2023 BCSC 56.  

In both cases, the Board conducted a very brief, inadequate and faulty ergonomic assessment of the worker’s workstation and in both cases, the court found that the Board Medical Advisor’s opinion was almost irrelevant due to this flawed factual assessment. In both cases, the court found that the WCAT panel rejected the worker’s medical evidence in favour of their own analysis, and this resulted in a decision that was “patently unreasonable”. Citing another earlier decision, the court states that while WCAT panels are “presumed to be an expert tribunal in relation to all matters over which it has exclusive jurisdiction, it is not presumed to have medical expertise”

This is an important court decision, affirming the importance of evidence-based decision-making in ASTD claims. 

TIP: All Judicial Reviews of WCAT decisions are summarized (with links) on the WCAT website.

Pickering v. Richmond School District No. 38 2021 BCSC 1497: An employer’s response to bullying and harassment may be a “labour relations” decision and grounds for excluding compensation for an injured worker

This decision addressed the exclusion for mental disorder claims caused by a decision of the worker’s employer. The WCAT decision under review found that the employer’s general way of handling, or even not handling, a bullying and harassment complaint was “a decision” that could exclude compensation. Even though there was no dispute the worker was bullied and harassed, compensation was excluded because the employer’s response to the bullying and harassment was the predominant cause of the mental disorder. The court upheld WCAT’s decision, finding that it was reasonably supported by the evidence.

WCAT A2201926 (August 28, 2023) Re: Pensions & Retirement Age 

The Amendment Act came into effect on January 1, 2021 and changed how PFI (Permanent Functional Impairment) pensions are decided under the Workers’ Compensation Act.   Section 201 (3) allows the Board to make a new PFI decision for a worker, IF the worker was injured before age 63 and IF an earlier PFI decision was made before January 1, 2021 but the worker had not reached that decided age of retirement.  In response, the Board amended Policy #6-41.00 and issued Practice Directive #C5-1 (PD) to guide the implementation of this new provision. 

This policy and PD have been critiqued in a series of WCAT decisions, particularly for how they are applied to seriously injured workers or workers who are “competitively unemployable”.

In WCAT A2201926, the panel states: 

…Board policy item C6-41.00 (and the accompanying non-binding practice Directive #C5-1) serve to create a paradox where the most severely injured workers are now much less likely to receive an extension of their retirement ages if post-injury evidence is considered.  I do not believe that this was the intention of the Legislature.  In WCAT Decision A2102334 I analyzed various reports and Hansard from the Legislature and postulated that the intent of the Legislature was not to create more stringent requirements regarding retirement age, but this appears to be what the Board has done by writing the policy and practice directive in such a manner. [WCAT A2201926, August 28, 2023,  para. 29]

And although the panel summarizes arguments about whether Policy #6-41.00 is even consistent with the Act, he decides that he does not need to resolve this issue at this time. Instead, he follows another WCAT decision (A2201476) and exercises his discretion to NOT consider ANY post-injury evidence.  With this framework, he concludes that the worker (who had been competitively unemployable 12 years) would likely have worked to age 75.

This WCAT decision illustrates how advocates and adjudicators have found ways to interpret this unfortunate policy and its adverse (and perhaps unintended) impact on the most seriously injured workers.  While a policy or legislative change is needed, this “work around” may be helpful to workers, in the meantime.