1.0 SUBSTANTIVE ISSUES
1.1 Whether Person is a Worker
Harris v. British Columbia (Workers' Compensation Appeal Tribunal), 2004 BCSC 1618
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).
1.2 Whether Person is an Employer
1.3 Whether Injury Arose out of and In the Course of Employment (section5(1))
Franzke v. Workers’ Compensation Appeal Tribunal, 2011 BCSC 1145
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, 2011 BCSC 1129
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.
Srochenski v. Workers’ Compensation Appeal Tribunal, 2009 BCSC 1488
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.
Cianelli v. Workers' Compensation Board of B.C., 2007 BCSC 862
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.
1.4 Whether Occupational Disease Due to Nature of Employment (section 6(1)(b))
Jensen v. Workers' Compensation Appeal Tribunal, 2011 BCCA 310
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.
1.5 Administrative Tribunals Act
Manz v. Sundher, 2009 BCCA 92
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.
Tallarico v. Workers' Compensation Appeal Tribunal, 2009 BCSC 49
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.
1.6 Assessments
1.7 Average Earnings
Phillips v. British Columbia (Workers’ Compensation Appeal Tribunal), 2011 BCSC 576
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.
Daniel v. (British Columbia) Workers' Compensation Appeal Tribunal, 2007 BCSC 1005
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.
Wyant v. British Columbia (Workers' Compensation Board) et al., 2006 BCSC 680
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.
1.8 Certifications to Court (sections 10 and 257)
Franzke v. Workers’ Compensation Appeal Tribunal, 2011 BCSC 1145
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, 2011 BCSC 1129
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.
Buttar v. Workers' Compensation Appeal Tribunal, 2009 BCSC 1228
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.
Manz v. Sundher, 2009 BCCA 92
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.
Manz v. Workers' Compensation Appeal Tribunal and Sundher, 2007 BCSC 1945
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.
1.9 Class Proceedings Act
Johnson v. British Columbia (Workers’ Compensation Board) , 2011 BCCA 255
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.
Johnson v. British Columbia (Workers’ Compensation Board), 2009 BCSC 877
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.
- Order (entered September 30, 2009)
Johnson v. Workers' Compensation Board of British Columbia, 2008 BCCA 436
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. Workers' Compensation Board, 2008 BCCA 232
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.
Johnson v. Workers' Compensation Board et al., 2007 BCSC 24
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.
1.10 Compensable Consequences (item #22.00)
Jensen v. Workers' Compensation Appeal Tribunal, 2011 BCCA 310
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.
Jensen v. Workers’ Compensation Appeal Tribunal, 2010 BCSC 266
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.
Chima v. Workers’ Compensation Appeal Tribunal, 2009 BCSC 1574
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.
1.11 Compensation in Fatal Cases (section 17)
1.12 Constitutional / Charter Challenge
Plesner v. British Columbia Hydro and Power Authority, 2009 BCCA 188
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.
Asquini v. British Columbia (Workers' Compensation Appeal Tribunal), 2009 BCSC 62
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).
Plesner v. British Columbia Hydro and Power Authority et al, 2006 BCSC 1947
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.
1.13 Costs and Expenses
Page v. British Columbia (Workers’ Compensation Appeal Tribunal), 2009 BCSC 1062
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.
Lavigne v. British Columbia (Workers Compensation Review Board), No Citation
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.
Baker v. Workers' Compensation Appeal Tribunal, 2007 BCSC 1517
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.
1.14 Deductions from Compensation (section 34)
1.15 Discriminatory Actions
Henthorne v. British Columbia Ferry Services Inc., 2011 BSCS 409
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.
Emergency and Health Services Commission v. Wheatley, 2010 BCSC 1769
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).
1.16 Evidence
Lavigne v. British Columbia (Workers' Compensation Appeal Tribunal), 2010 BCSC 341
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.
Daniel v. (British Columbia) Workers' Compensation Appeal Tribunal, 2007 BCSC 1005
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.
1.17 Extensions of Time (WCAT)
Kerton v. Workers’ Compensation Appeal Tribunal, 2011 BCCA 7
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.
Kerton v. Workers’ Compensation Appeal Tribunal, 2010 BCSC 644
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.
Baldwin v. Workers' Compensation Appeal Tribunal, 2007 BCSC 942
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).
1.18 Extensionsof Time (Court)
1.19 Federal Employees
Canadian Broadcasting Corporation v. Luo , 2009 BCCA 318
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).
Canadian Broadcasting Corporation v. Lijun Luo, 2007 BCSC 971
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).
1.20 Health Care Benefits (section 21)
1.21 Interest
Johnson v. British Columbia (Workers’ Compensation Board) , 2011 BCCA 255
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.
Viking Logistics Ltd. v. British Columbia (Workers' Compensation Board), 2010 BCSC 1340
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.
Johnson v. British Columbia (Workers’ Compensation Board), 2009 BCSC 877
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.
- Order (entered September 30, 2009)
Johnson v. Workers' Compensation Board of British Columbia, 2008 BCCA 436
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. Workers' Compensation Board, 2008 BCCA 232
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.
Johnson v. Workers' Compensation Board, 2007 BCSC 1410
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).
Johnson v. Workers' Compensation Board et al., 2007 BCSC 24
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.
1.22 Intervener
Canadian Broadcasting Corporation v. Luo, 2008 BCCA 335
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.
1.23 Jurisdiction
Canadian Broadcasting Corporation v. Luo , 2009 BCCA 318
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).
Canadian Broadcasting Corporation v. Lijun Luo, 2007 BCSC 971
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).
1.24 Limitation of Actions (section 10)
1.25 Occupational Health and Safety
1.26 Out of Province Injuries (section 8(1))
1.27 Period of Payment (section 23.1)
1.28 Permanent Disability Awards (section 23)
Young v. British Columbia (Workers’ Compensation Appeal Tribunal), 2011 BCSC 1209
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.
Jozipovic v. British Columbia (Workers’ Compensation Appeal Tribunal), 2011 BCSC 329
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.
Djakovic v. British Columbia (Workers' Compensation Appeal Tribunal), 2010 BCSC 1279
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.
Sidhu v. British Columbia (Workers’ Compensation Appeal Tribunal), 2010 BCSC 277
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.
Bagri v. Workers' Compensation Appeal Tribunal, 2009 BCSC 300
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.
Asquini v. British Columbia (Workers' Compensation Appeal Tribunal), 2009 BCSC 62
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, 2009 BCSC 49
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.
1.29 Precedent Panel Decisions
Johnson v. British Columbia (Workers’ Compensation Board), 2009 BCSC 877
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.
- Order (entered September 30, 2009)
Johnson v. Workers' Compensation Board of British Columbia, 2008 BCCA 436
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. Workers' Compensation Board, 2008 BCCA 232
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.
Johnson v. Workers' Compensation Board, 2007 BCSC 1410
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).
Johnson v. Workers' Compensation Board et al., 2007 BCSC 24
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.
1.30 Recurrence of Injury (section 96(2)(b))
1.31 Relief of Costs
1.32 Retirement Benefits
1.33 Section 5(4) Presumption
Buttar v. Workers' Compensation Appeal Tribunal, 2009 BCSC 1228
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.
1.34 Specific Injuries
1.34.1 Chronic Pain
Bagri v. Workers' Compensation Appeal Tribunal, 2009 BCSC 300
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.
1.34.2 Depression
1.34.3 Mental Stress (section 5.1 and prior to enactment of section 5.1)
Downs Construction Ltd. v. Workers’ Compensation Appeal Tribunal, 2011 BCSC 1129
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.
Plesner v. British Columbia Hydro and Power Authority, 2009 BCCA 188
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), 2009 BCSC 493
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).
Baker v. Workers' Compensation Appeal Tribunal, 2007 BCSC 1517
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.
Hill v. WCB, 2007 BCSC 1187
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.
Plesner v. British Columbia Hydro and Power Authority et al, 2006 BCSC 1947
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.
1.34.4 Chemical Sensitivity
1.34.5 Shoulder Dislocation
1.35 Summary Dismissal
Redae v. Workers' Compensation Appeal Tribunal, 2008 BCSC 956
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.
1.36 Survivor Benefits
1.37 Temporary Disability Benefits (sections 29 and 30)
Woods v. British Columbia (Workers’ Compensation Board), 2009 BCSC 1402
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.
Gogol v. Workers' Compensation Appeal Tribunal, 2008 BCSC 489
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.
Baker v. Workers' Compensation Appeal Tribunal, 2007 BCSC 1517
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.
1.38 Vocational Rehabilitation (section 16)
Currie v. British Columbia (Workers’ Compensation Board), 2011 BCCA 445
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.
Currie v. British Columbia (Workers’ Compensation Board), 2011 BCSC 550
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) , 2011 BCSC 453
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.
Wu v. Workers' Compensation Appeal Tribunal, 2005 BCSC 1449
The Court considered the Workers’ Compensation Appeal Tribunal (WCAT) decision which found that the Petitioner, a machinist, was not eligible for vocational rehabilitation benefits.
2.0 PROCEDURAL ISSUES
2.1 Standing to Appeal
Buttar v. Workers' Compensation Appeal Tribunal, 2009 BCSC 129
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.
2.2 Procedural Fairness
Young v. British Columbia (Workers’ Compensation Appeal Tribunal), 2011 BCSC 1209
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, 2011 BCSC 1145
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.
Phillips v. British Columbia (Workers’ Compensation Appeal Tribunal), 2011 BCSC 576
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.
Cannon v. Workers’ Compensation Appeal Tribunal, 2010 BCSC
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.
Djakovic v. British Columbia (Workers' Compensation Appeal Tribunal), 2010 BCSC 1279
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.
Sidhu v. British Columbia (Workers’ Compensation Appeal Tribunal), 2010 BCSC 277
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.
Lavigne v. British Columbia (Workers' Compensation Appeal Tribunal), 2010 BCSC 341
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.
Woods v. British Columbia (Workers’ Compensation Board), 2009 BCSC 1402
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.
Johnson v. WCB, 2008 BCSC 1386
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.
Baker v. Workers' Compensation Appeal Tribunal, 2007 BCSC 1517
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.
