The Court set aside the decision of the Chambers judge which held that a WCB Medical Review Panel’s decision was unreasonable and dismissed the respondent’s petition for judicial review

25. October 2011 0

Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Workers compensation – Benefits – Psychological injury – employment related – Hearings – Judicial review – Procedural requirements and fairness – Evidence

Bagri v. British Columbia (Workers’ Compensation Board), [2011] B.C.J. No. 1691, 2011 BCCA 368, British Columbia Court of Appeal, September 8, 2011, M.A. Rowles, D.F. Tysoe and E.A. Bennett JJ.A.

The appellant, the Workers’ Compensation Board of British Columbia (the “WCB”), appealed from an order made during a judicial review which set aside a certificate of a medical review panel (the “Panel”) dated June 3, 1998 and a decision of the WCB’s Review Board (the “Review Board”) dated November 1, 2000, which had denied the respondent, Avtar Singh Bagri’s appeals from the disallowance of benefits payable in respect of his compensable injury of September 11, 1992 beyond March 7, 1993.

The chambers judge had found the decision unreasonable because the respondent had not been given a fair opportunity to be heard before the Panel, or alternatively that the Review Board had erred by failing to apply the legal test for causation set out in Athey v. Leonati, [1996] 3 S.C.R. 458.

The Review Board had initially held that there was insufficient evidence to support a conclusion that the respondent developed fibromyalgia as a result of his compensable injury, and the Panel upheld that finding in its 1998 decision, which also found that the respondent had a compensable psychological injury which was not connected to his accident. The respondent’s appeals regarding the Panel’s decision were subsequently denied. The respondent commenced a judicial review proceeding, and the chambers judge held that it was unreasonable for the Panel to have dealt with the respondent’s psychiatric condition without being prompted to do so, and alternatively that the Board’s decision that the respondent’s anxiety disorder was not caused by the accident was unreasonable as it failed to apply the Athey test for causation.

The court held that the Panel’s consideration of the respondent’s psychiatric and psychological state was a logical step in the diagnosis of fibromyalgia. Further the respondent did not complain of the Panel’s findings until the Board denied his appeals. The court held that the issue of whether that finding was correct was not before the court at the judicial review proceedings.

The court held that the chambers judge erred in concluding that the Panel’s decision was unreasonable and dismissed the respondent’s petition.

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