The Court allowed a petition for judicial review of two decisions of the Workers’ Compensation Appeal Tribunal, which had denied compensation to the Petitioner for psychological problems he claimed were a consequence of a prior back injury. The Court found that the Appeal Tribunal had made a patently unreasonable error by applying an incorrect legal test in determining whether the Petitioner’s psychological problems were compensable.

Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Workers compensation – Benefits – Psychological injury – employment related – Test – Judicial review – Compliance with legislation – Standard of review – Patent unreasonableness

Chima v. British Columbia (Workers’ Compensation Appeal Tribunal), [2009] B.C.J. No. 2281, 2009 BCSC 1574, British Columbia Supreme Court, November 17, 2009, E.M. Myers J.

The petitioner, a 54-year-old mill worker, injured his lower back and right side while working in his employer’s sawmill in 1998. The WCB accepted his compensation claim for back strain. The petitioner’s pain did not resolve and he experienced anxiety and depression. In 1999, the petitioner suffered a second back injury, a herniated disk.

The WCB terminated the petitioner’s wage loss benefits as of October 8, 1999, on the basis that there was no objective evidence that the petitioner could not return to work and that no further treatment was recommended. In a further decision of October 26, 1999, the WCB concluded that the disk herniation was not compensable as part of the petitioner’s entitlement on his claim. After his benefits were terminated, the Petitioner experienced further anxiety and depression, for which he sought medical attention.

In 2002, the WCB Appeal Division denied the petitioner’s appeals from the October 1999 decisions terminating his wage loss and denying coverage for disk herniation. However, the Appeal Division panel noted the growing evidence that the petitioner had a psychological condition and referred this issue back to the WCB for a new decision. On October 21, 2002, the WCB issued its decision regarding the petitioner’s claim that his psychological condition was a compensable consequence of the compensable work injury. It found that the petitioner became depressed after being discharged from an interdisciplinary pain program sponsored by the WCB and in response to the additional pain experienced due to the non-compensable disk degeneration and herniation. The WCB found that there were no psychological limitations associated with the pain that arose from the original compensable back strain.

The petitioner continued to be treated by a psychiatrist, who reported in 2004 that the petitioner remained “chronically depressed and anxious”, with his depression and anxiety worsening his chronic back pain and his chronic pain perpetuating his depression and anxiety.

In 2006, the petitioner appealed from the October 21, 2002 denial of coverage for his psychological condition. The Workers’ Compensation Appeal Tribunal (WCAT) denied that appeal, as well as an application for reconsideration in 2007. The petitioner applied for judicial review of the WCAT’s two decisions.

The Court first considered the appropriate standard of review. The WCAT fell under the Administrative Tribunals Act. Several prior decisions of the Court had made it clear that decisions of the WCAT, with respect to whether injuries are compensable, are to be reviewed under the standard of patent unreasonableness.

The Court found that the WCAT failed to apply the correct legal test in determining whether the petitioner’s psychological problems were compensable. Under the WCB’s Rehabilitation Services and Claims Manual, policy #22.00, if a compensable injury is “a significant cause” of a further injury, that further injury is also compensable. The WCAT had adopted an overly simplistic temporal approach and only addressed the issue of whether the petitioner’s psychological condition was coincident in timing with the initial, compensable back injury. It did not consider whether causation could be established where the psychological condition arose after the physical symptoms of the first injury had dissipated.

The WCAT had also failed to consider whether both back injuries could have contributed to the petitioner’s psychological condition. In fact, the temporal analysis they engaged in was at odds with that analysis. The WCAT thereby applied a test for causation that was contrary to the plain wording of policy #22.00. The application of an incorrect causation test amounts to a patently unreasonable error. In the result, the petitioner’s application was allowed and both WCAT decisions were set aside. The petitioner’s appeal of the October 21, 2002 decision of the WCB was remitted to the WCAT for rehearing.

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