Refusing to grant an injured worker (“Johnson”) the opportunity to cross-examine medical witnesses on a Workers’ Compensation Board (“WCB”) disability benefits determination was held to be a denial of procedural fairness and natural justice

Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Workers Compensation – Benefits – Judicial review – Procedural requirements and fairness – Natural justice – Witnesses

Johnson v. Alberta (Appeals Commission for Alberta Workers’ Compensation), [2010] A.J. No. 663, 2010 ABQB 393, Alberta Court of Queen’s Bench, June 9, 2010, K. G. Nielsen J.

Johnson suffered a lower back injury when he fell against the bumper of a truck in December 2003. Johnson underwent various medical investigations. In January 2004, a CT scan showed no “definite evidence of focal disc bulge to indicate disc herniation.”  In April 2004, Johnson was found to be fit to return to work and was advised that his temporary total disability benefits (“TDD”) would cease April 30, 2004. The Alberta WCB concluded that Johnson’s work-related injury was a lower back contusion, that had resolved.

In October 2004, an MRI revealed that Johnson had disc protrusions. By then, WCB had advised Johnson that they would not accept a reoccurrence of his workplace injury. While Johnson’s family physician opined that his symptoms of back pain and minor neurological deficit resulted directly from the workplace accident, WCB collected several contrary medical opinions. An independent medical examination conducted at WCB’s request in May 2007 led to a conclusion that Johnson’s symptoms and limitations could not be “fairly related to a contusion or a strain.”

In August 2007, the WCB Dispute Resolution Decision Review Board (“DRDRB”) upheld the WCB Case manager’s decision to deny Johnson’s disability claim.

Johnson appealed to the WCB Appeals Commission.  In February 2008, counsel for Johnson requested that the Appeals Commission issue Notices to Attend to WCB’s medical witnesses, Drs. England, Ross, Galbraith and Neumann, so that he could cross-examine them. Johnson’s counsel wrote that he wished to cross-examine the physicians as to the bases of their opinions, which were contrary to Johnson’s interests.

On November 27, 2008, the Appeals Commission held a hearing of the application to issue Notices to Attend to the medical witnesses. On January 17, 2009, the Appeals Commission denied the application. A few months later, Johnson’s main appeal was also dismissed.

Johnson brought an application for judicial review of the decision to deny him cross-examination of the four physician witnesses. The Court agreed that the issue was one of procedural fairness and natural justice, which was not subject to the Pushpanathan/Dunsmuir standard of review analysis: “The fairness of proceedings is not measured based on whether they are “correct” or “reasonable”…” The question is whether the proceedings meet the level of fairness required by law.

In determining an issue of procedural fairness, a court may consider a non-exhaustive set of factors, including those set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. The factors include the nature of the decision being made and the process followed in making it, the statutory scheme, the importance of the decision to the individual(s) affected, the legitimate expectations of the person challenging the decision and the procedural choices made by the administrative body itself. The goal is to decide whether the affected individual has had an opportunity to present the case fully through a fair, impartial and open process appropriate to the decision’s statutory, institutional and social context.

The Appeals Commission provides for a process that resembles judicial decision making in some ways. The Appeals Commission reviews the record, hears submissions and can hear new evidence. The Appeals Commission decision affects the worker’s rights and WCB’s obligations. As such, the process provided for by the agency dictates greater procedural protections to fulfil the duty of fairness.

The statutory scheme also favours greater procedural protections because the privative clause in the Workers’ Compensation Act limits the avenues for appeals/review. Only unreasonable decisions can be altered on judicial review.

The disability benefits decision had a significant impact on Johnson, meaning that the procedural protections should be significant. Further, Johnson had a legitimate expectation that the Appeals Commission could and would have ordered cross-examination where the evidence sought was relevant, there was sufficient reason to request cross-examination and the evidence was not available through another source of equivalent quality. The Appeals Commission also had the authority to determine its own rules and procedures.

Natural justice does not require Notices to Attend to be issued in all cases. However, if there are errors in evidence, incomplete facts, unsubstantiated conclusions, credibility or expertise issues, or issues around the process giving rise to an expert opinion, Notices to Attend may properly be issued. The opinions of the four physicians were held to be vital to the matter, and therefore cross-examination should have been permitted to provide Johnson with a fair chance to “correct or controvert any relevant or prejudicial statement.”

The Court rejected the proposition that other equally effective means of accessing the evidence were available to Johnson. Written interrogatories or the ability to submit further evidence would not permit the type of probing analysis required to properly explore the foundations of the WCB medical opinions.

Johnson’s counsel was not required to disclose the questions he would ask the physicians in order to substantiate his application for Notices to Attend to be issued. Requiring that level of detail would undermine the effectiveness of his proposed cross-examination.

There was a denial of procedural fairness occasioned by the Appeals Commission’s refusal to issue Notices to Attend to the four physicians, in part because their evidence was critical to the decision about disability and was at odds with the opinions of Johnson’s treating physicians. The Appeal Decision was set aside and remitted back to the Appeals Commission for reconsideration on the questions of Notices to Attend and permitting cross-examination.

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