The Applicant, Schroder, successfully sought judicial review of the Respondent Board’s decision to discontinue his disability benefits

24. November 2009 0

Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Workers Compensation – Benefits – Policies – Judicial review – Evidence – Standard of review – Reasonableness simpliciter

Schroder v. Alberta (Workers’ Compensation Board), [2009] A.J. No. 1109, Alberta Court of Queen’s Bench, October 9, 2009, M.T. Moreau J.

The Applicant Worker injured his upper back and neck in March 2003. The injury was related to work and he stopped working for several months. He received compensation benefits from the Respondent Board. In July 2005, the Worker saw an internal medicine specialist, Dr. Ferrari. Dr. Ferrari recommended that the Worker undergo 12 weeks of Pilates therapy. In December 2005, the Worker’s family physician noted that he did not have current complaints and that he was healing well. In late December 2005, the Board terminated the Worker’s benefits on the basis that he was no longer suffering from a work-related injury that prevented him from returning to work.

The Worker appealed the Board’s December 2005 decision and, in August 2007, the Appeals Commission of the Board (the Commission) considered the matter and concluded that, as of December 2005, the Worker was capable of pre-accident work duties without restrictions. It also concluded that any neck complaints beyond December 2005 were not causally related to the March 2003 workplace injuries. The Commission relied heavily on three pieces of evidence and it is that reliance that the Worker took issue with in his application for judicial review. The Court considered whether the Commission acted reasonably in the evidence it considered.

The Court noted that the Board is subject to policies (the “Policies”) stating that, “if there is doubt on any issues because the evidence equally supports one or more decisions, the WCB will resolve the issue in the worker’s favour”. The Policies also provide that the Board ought not impose a pre-determined limitation on the term of the benefits.

The Commission relied on comments of the Pilates instructor despite the fact that she told the case manager at the Board that the Pilates was not intended as an assessment tool. The Court held that the Commission placed undue reliance upon the opinion of the instructor given the nature of her treatment.

The Commission also relied on Dr. Ferrari’s July 2005 prediction about the length of Pilates treatment required for the Worker. The Commission was aware that several other physicians previously (in 2003 and 2004) made erroneous predictions about the Worker’s recovery. The Court held that the Commission placed undue reliance on the prediction that Dr. Ferrari made in July 2005, which amounted to setting a pre-determined limitation on the payment of benefits.

The Commission relied upon the December 1, 2005 report from the Worker’s physician stating that the Worker had no current complaints and his shoulder was healing well. The Commission did not acknowledge the passage in that report commenting on the possibility of a flare-up if he resumed physical activity. The Commission failed to take into account this important piece of evidence.

The Court held that the Commission’s decision was unreasonable. The matter was sent back to the Board for re-consideration.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at or review his biography at

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