The Fraser Health Authority was successful on judicial review of a decision of the British Columbia Workers’ Compensation Appeal Tribunal (WCAT) whereby WCAT held that there was a causal link between breast cancer suffered by three respondents working for the Health Authority and their employment

21. March 2013 0

Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Workers Compensation – Occupational disease – Expert evidence – Judicial review – Evidence – Standard of review – Patent unreasonableness

Fraser Health Authority v. British Columbia (Workers’ Compensation Appeal Tribunal), [2013] B.C.J. No. 605, 2013 BCSC 524, British Columbia Supreme Court, March 28, 2013, J.E.D. Savage J.

Three employees of the Fraser Health Authority who worked at the same laboratory hospital all suffered from breast cancer and claimed compensation benefits from the Workers’ Compensation Board. In a set of three original decisions and three reconsideration decisions of WCAT, a finding was made that their breast cancers were occupational diseases due to the nature of the employment, within the meaning of the Workers’ Compensation Act and its policies.

The Fraser Health Authority brought a petition for judicial review seeking to set aside the original decisions and reconsideration decisions of WCAT. WCAT was represented at the judicial review hearing, with appropriately limited submissions on the questions of the standard of review and the workings of the statute, as well as explanations of the record when necessary, and discussions of the form of appropriate remedy.

WCAT had considered the issue of the etiology of the breast cancers. Expert evidence was tendered. Three reports were prepared by the occupational health and safety agency for healthcare in BC (the “OHSAH reports”). In addition, Dr. Beach, a specialist in occupational medicine, prepared a review of the OHSAH final report. Finally, a medical opinion of a Workers’ Compensation Appeal medical advisor in occupational medicine was tendered. There was no viva voce evidence.

The parties agreed that the standard of review for the decisions would be patent unreasonableness, and the standard of review for the reconsideration decisions would be correctness. If an original decision is not patently unreasonable or unfair, a reconsideration decision to the same effect is correctly decided.

The standard of patent unreasonableness was applied because of the deference due to expert administrative tribunals such as the WCAT, which is located “at the very high end of deference.” The WCAT has a “right to be wrong” as long as there is some evidence capable of supporting its conclusion.

The OHSAH final report stated that the evidence collected did not allow them to reach a scientific conclusion to support the association between work related exposures and breast cancer in this cluster of cases. However, it was a statistically significant cluster, which pointed to the need to follow-up with an etiological study with the required statistical power to investigate the association, while controlling for non-work related exposures. There were no “current occupational chemical exposures, or records of past occupational exposures” found that might related to working in the MMH laboratory environment to an elevated breast cancer risk.

The Dr. Beach report offered that the final report from OHSAH was not flawed and that, although an excess of cancer was identified, there were no potential causitive exposures identified.

Finally, the opinion of the WCB medical advisor was that there was insufficient evidence to support that the work environment had caused or significantly contributed to breast cancer in this case. The WCB medical advisor offered his opinion that non-occupational factors were the cause of the breast cancer.

Section 6 of the Workers’ Compensation Act provides an entitlement to compensation for workers who suffer an occupational disease. If the evidence supporting different findings on an issue is evenly weighted, the Board must resolve the issue in favour of the worker.

The original WCAT decision accepted that there was a causal link between the workers’ employment and the breast cancer. The question was whether the Respondents’ cancers were “likely as not” contributed to by occupational factors.

The expert opinions before the panel did not find any of the exposures cited as possible causes of causitive significance to the breast cancer. Although the panel acknowledged that the scientists and physicians who studied the matter did not support a conclusion that there was an occupational origin to the breast cancers, WCAT then reached a contrary conclusion. Even though WCAT is an expert tribunal in relation to all matters over which it has exclusive jurisdiction, it is not presumed to have medical expertise.

The etiology of breast cancer is not a subject matter on which the application of common sense can be favoured over expert opinion. The expert evidence was uncontradicted and therefore the WCAT’s decision was patently unreasonable.

The WCAT’s decision was set aside. The matter was remitted to WCAT for rehearing on the basis that WCAT had the power to consider new evidence, thereby making the outcome of the hearing uncertain.

The Court declined to substitute its own reasons for those of the administrative law decision-maker, since WCAT had an inquisitorial power to request further medical evidence in order to determine the appeal.

Even where a court determines that a tribunal’s decision was based on no evidence or where an expert’s opinion was uncontradicted, the matter should still generally be remitted to WCAT for redetermination. The Court went on to comment, in obiter, that the OHSAH final report suggested that the cancer cluster be re-examined after five years’ time to reassess the link, if any, between the workplace conditions and the occurrence of breast cancer.

The matter was remitted back to WCAT for reconsideration with no order as to costs.

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