Administrative law – Workers compensation – Benefits – Recurrence vs. deterioration – Validity and application of policies – Decisions of administrative tribunals – Workers Compensation Boards – Judicial review – Compliance with legislation – Interpretation of legislation – Standard of review – Patent unreasonableness
Cowburn v. British Columbia (Worker’s Compensation Board),  B.C.J. No. 1020, British Columbia Supreme Court, May 5, 2006, Maczko J.
The Petitioner (“Cowburn”), a 75-year-old retired mill worker, developed lung problems which required him to retire in 1994. In 2002, after undergoing a lung biopsy, Cowburn was diagnosed with asbestos-related lung disease and he applied for compensation for an occupational disease. Cowburn was awarded a 28% disability as of October 1998. He was reassessed in December 2003 and found to have a 51% disability and a 65% disability by August 2004. Cowburn applied for an increase in his pension because of his increased disability due to the deterioration of his condition. The case manager rejected his claim in February 2005 on the basis that the Workers Compensation Act, R.S.B.C. 1996, C. 492 (the “Act”) had been amended to provide that where a worker who is over 65 and retired, no further compensation will be provided for any injury which recurs after June 2002. Cowburn appealed this decision to the Board of Review which rejected his appeal. Ultimately, Cowburn sought judicial review of the policy decision which interpreted section 35.1(8) of the Act and on which the case manager relied in rejecting Cowburn’s claim.
The Act, prior to 2002, provided that if a worker was injured or suffering an occupational disease and was permanently disabled, he would receive a disability pension. If that disability deteriorated, the pension would be increased in proportion to the increase in disability. The Act was amended in 2002 so that once a worker reached 65, he or she would no longer receive a disability pension. The new Act provided for transition so that workers who already had pensions, which were for job-related injuries, would not have their benefits reduced. Section 35.1(8) of the Act provided:
If a worker has, on or after the transition date, a recurrence of a disability that results from an injury that occurred before the transition date, the Board must determine compensation for the recurrence based on this Act, as amended by the Workers Compensation Amendment Act, 2002.
In 2003, the BOD formulated a policy and interpreted section 35.1(8) to mean that if an injury recurred or deteriorated after a person retired, there would be no additional compensation. The issue for the Court was whether the BOD was correct in deciding that the “recurrence” in section 35.1(8) included deterioration.
The Court held that the policy decision was effectively a finding of law and, consequently, the standard of review, pursuant to section 58(2)(a) of the Administrative Tribunals Act, S.B.C. 2004, c. 245, was patent unreasonableness.
The Court concluded that the policy of the BOD was patently unreasonable. The Court could find nothing in the Act or the history of the section which was capable of sustaining the interpretation given to it by the BOD. The Court indicated that the BOD’s decision was focused more on policy and the finances of the WCB than what the Legislature intended with section 35.1(8).
The Court found that what little evidence that could be found in Hansard supported the proposition that no worker injured before the amendments to the legislation would lose any benefits. The BOD’s original policy was to distinguish between recurrence and deterioration of an injury. The Court found that there was no dictionary definition that would allow for the interpretation of “recurrence” to include the word “deterioration” and no common sense interpretation of “recurrence” which would include the concept of deterioration.
In the result, the Court held that the BOD’s interpretation of the word “recurrence” was patently unreasonable.
To stay current with the new case law and emerging legal issues in this area, subscribe here.