Administrative law – Workers Compensation – Disability – Unreasonableness
Phillips v. British Columbia (Workers’ Compensation Appeal Tribunal),  B.C.J. No. 835, 2011 BCSC 576, British Columbia Supreme Court, May 3, 2011, P. Rogers J.
The petitioner, Glynis Phillips, seeks an order setting aside a decision of the Workers’ Compensation Appeal Tribunal (“WCAT”). The sole issue that was before WCAT was the wage rate upon which the appellant’s permanent disability pension ought to be calculated. The petitioner took the position that the pension ought to be based upon a full-time wage, even though she had been working on a part-time basis when she was injured.
The petitioner had been injured shortly after being offered a job as a casual employee at an extended care facility. The petitioner testified before the WCAT that full-time work was not readily available and that she expected to have to put in a certain amount of time as a casual employee before a full-time position would be offered to her. The evidence showed that another individual had started part-time work at the petitioner’s place of employment at roughly the same time as the petitioner, and that she had been offered full-time work shortly after the petitioner’s injury.
The WCAT rejected the petitioner’s argument that it should rely on s. 33(1) of the Worker’s Compensation Act to provide her with a pension based on full-time work. That provision provides that a class average wage may be used to determine a worker’s pension if it is inequitable to use that worker’s actual past earnings.
The petitioner argued that the WCAT fettered its discretion when it considered the application of s. 33(1) and the applicable Policy #67.21 in the context of her claim. Policy #67.21 provides guidance as to the circumstances in which s. 33(1) might apply to a claim, and states that the provision might be applicable to recent entrants into the labour force or new immigrants. The WCAT’s reasons referenced the fact that the petitioner was neither an immigrant nor a new entrant into the labour force and that the Policy therefore did not apply. However, the court found that the WCAT did not fetter its discretion because it expressly acknowledged that immigrants and new workers are only examples of the kinds of workers to whom the Policy might apply.
The petitioner also argued that the WCAT’s decision was patently unreasonable because it failed to accept her argument. The court rejected this, noting that the WCAT was entitled to give such weight to the evidence as it considered appropriate. It was not obliged to accept the claimant’s evidence and argument uncritically, and there was evidence on the record that tended to cast doubt on the petitioner’s assertion that she would inevitably have received full-time work.
The court dismissed the application for judicial review.
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