Selected WCAT & Review Division Decisions

Selected appeals in which I was counsel:

• WCAT-2005-00823: expert cross examined; mould in liquor store caused asthma
• WCAT-2007-02447: if significant increase in pain, re-open claim
• WCAT-2010-01796: prefers FCE to VRC; 100% pension
• Review Division #R0129789, October 24, 2011 – if VR plan fails, do another
• WCAT-2013-02446: after two successful re-cons and 2 IHP’s, accepted CP and permanent aggravation of low back in 1986
• WCAT-2013-03005, October 29, 2013; promotion already in place and beginning days after DOI are taken into consideration for wage rate – the VC applied a “broad interpretation”
• WCAT-2013-03437; somewhat flexible distinctions between “impairment” and “disability”; after IHP, found impairment
• WCAT-01807, June 16, 2014; after IHP, found altered gait caused by CRPS compensable in aggravating back; increased earnings by $35,000+, added CRPS to PFI;  led to 100% pension
• WCAT-2014-02177: revived 2000 Review Division appeal; applied MRP findings; accepted anxiety disorder as a compensable consequence
• WCAT-2015-01858; 5 RD decisions; several important findings – w/ “re-opening”, BMA misreading reports; wage loss throughout, not just from date of surgery; new decision re: new diagnosis
• WCAT-2015-02573;  example of premature VR plan, dealt with appropriately by WCAT
• WCAT-2015-02983; example of importance of cross examination, here of “employer” – see also Dr. Samer v. Judson, October 3, 2012, Unreported, Vancouver Supreme Court Registry No. S125793 re: doctors.
• A1603299; preferring examining Psychiatrist over BMA; accepting MDD and referring to DA & VR.
• Review Ref No. R0231175:  premature VR Plan – happens often – referred back
• A1801146: EOT granted for Feb/16 RD decision – useful analysis, grounds
• Review Ref No. R0240708, March 11, 2019; CRO set aside RD decision on fairness grounds; failure to provide deadline for submissions.
• Review Ref No. R0242645, March 19, 2019;  another example of premature plateau, and premature referrals to VR and DA
• A1700649, July 16, 2018: widower gets s. 17 benefits; teacher in schools with asbestos, attending during remediations
• A1901155; re-hearing ordered by Kostiuk v. WCAT (see Court Decisions) – allowed aggravation of pre-existing DDD
• A1901541: good example of the value of IHP’s
• A2101526: plateau date set aside in spite of the fact that the worker returned to work!

Section 311

• WCAT-2010-01449: dual purpose; no need to refer to “labour contractor” policy
• WCAT-2007-03752/53: volunteer not covered; see also Browne
• WCAT-2007-03857: sleeping chef not in course of employment; see also 2010 BCCA 375
• WCAT-2007-03415: sole owner of company; dual purpose – see contra: WCAT-2011-01602, distinguishing WCAT-2006-01747
• WCAT-2011-01139: Alberta worker for interprovincial company not covered
• WCAT-2013-00953: commuting, not covered
• Whetung v. WCAT & WCB, 2013 BCCA 350 – unrelated action, no subrogation
• WCAT-2014-00811: personal deviation, and not yet entered usual route to work
• WCAT-2014-01918: “worker” not in course of employment
• WCAT-2014-02558: not in course: distinguishing travelling employee and irregular starting places, previous vs. new policy
• WCAT-2006-01747: the anaesthetist is not a worker;  contra same Vice Chair’s WCAT-2011-01602, finding anaesthetist to be a worker.
• A1604545:  in spite of Defence Counsel’s “characterization” of the evidence, neither party was in the course of employment.
• WCAT-2005-02051:  elected Indian Band officials not “workers”
• A1702632, August 26, 2019:  review of factors in arriving at determinations, in this case involving a personal deviation from work duties (Plaintiff’s counsel)
• A1803497, February 25, 2020 – not yet posted: psychiatrist assaulted and battered by patient;  not a “worker” – compare to other cases
• A2100400, August 21, 2021 – return home from voluntary course not out of or in the course of employment (Plaintiff’s counsel)
• A2002624, January 18, 2022 – home care worker not in course – substantial deviation

100% Pension:

• WCAT-2004-03368: “old world” LOE
• WCAT-2004-03598: results in 100% pension; see R172197 above
• Review Division #25522, May 3, 2005 – referral results in LOE
• Review Division #R0086114: accepting psych; leads to LOE
• Review Division #R0061294: CRPS leads to LOE; WCAT-2010-01001 for HC
• WCAT-2007-03305: accept psych; leads to LOE
• WCAT-2009-03307: “new world” – entitled to LOE for CRPS; WCAT-2010-02445: increase in pension for psych; result – 100% granted; WCAT-2012- 00903: pension extended to age 75
• WCAT-2009-02013: employer “mis-spoke”; claim accepted, paraplegic awarded 100% pension
• WCAT-2012-01374: re-hearing of Young; VRC testified, did not apply policy (pre-amendment)
• WCAT-2013-02093: after nearly 20 years of failed EA’s, found unemployable – VRC at OH testified that no VRC applies “usher” policy, contra Young
• WCAT-2013-00700: “old world” unemployable; dodged Young?
• WCAT-2013-01992: “new world” unemployable;  interest on retroactive benefits paid pursuant to “blatant board error” policy:  WCAT-2015-07729.
• WCAT-2015-01473: “new world” unemployable
• WCAT-2015-01653: last of several appeals that increased functional pension, resulting in 100% LOE

Miscellaneous:

Extension of time granted:  WCAT-2012-02521, September 27, 2012; A1801146, July 6, 2018;  and A18016373, February 12, 2019; A190118, June 27, 2019; RD #R0285879, December 22, 2021.

Health Care payable after plateau: WCAT-2005-00257, January 19, 2005

Can refuse “light” work:  WCAT-2013-00945, August 9, 2013; A1802463, December 12, 2018 – general principles

No retroactive adjudication: WCAT-2004-12620, May 19, 2002

Unfairness:  WCAT-2012-00537, February 23, 2012 – failure to consider the issue; and A1801259, May 8 2018: credibility, unfair without oral hearing

Mental Stress:  A1802764, June 20, 2019: accepted pre-existing PTSD as being aggravated by DOI, and accepted the claim

Section 6 & ASTD:  A1802335, December 12, 2018:  distinguished between “condition” and “disability” for timeliness purposes – the disability occurring months after the condition was diagnoses – arises often.  See also: WCAT-2014-01931, June 25, 2014: not disabled until time loss; and WCAT-2014-02693, September 2, 2014.

Specific policy over general one:  2005-01642; 2004-06207; see also Schulmeister 2007 BCSC 1580 under Court Decisions.