By Christina Catenacci

In Puar v Workers’ Compensation Appeal Tribunal, the Supreme Court of British Columbia confirmed that the original decision denying full loss of earnings and workers’ compensation benefits to an injured employee was not patently unreasonable. The evidence showed that the employee was able to work and was appropriately awarded partial loss of earning benefits, however, since the original decision was not patently unreasonable, part of the application was denied.

Facts of the case
Kalwant Puar was a 64-year-old former lumber grader who was employed with Doman Forest Products Ltd. for 25 years.

On January 26, 2001, he slipped on black ice as he was walking to a coffee truck that was parked on the employer’s property. As a result, he fractured his left ankle and began applying for workers’ compensation benefits.

Initially, the Workers’ Compensation Board determined that his work-related injury left him with a permanent disability in his ankle and provided him with a permanent functional impairment partial disability award. The Board declined to award him a projected loss of earnings award because it concluded he was capable of returning to his pre-accident employment and thus would suffer no future loss of earnings.

Puar not agreeing with the Board’s decision made several appeals and further Board investigations followed. Ultimately, the Board concluded that he was entitled to a partial loss of earnings award. Still dissatisfied, on appeal to the Workers’ Compensation Appeal Tribunal, he was successful in having the amount of the partial loss of earnings award increased.

However, the Workers’ Compensation Appeal Tribunal upheld the Board’s denial of his claim that he was unemployable and therefore entitled to a full loss of earnings award (the “original decision”). Puar asked for a second panel to reconsider the original decision. The second panel arrived at the same conclusion as the first panel and consequently upheld the original decision (the “reconsideration decision”).

In response to these decisions, Puar made an application for a judicial review to the court and asked to have both the original decision and the reconsideration decision set aside. He asked for the matter regarding his entitlement to a full loss of earnings benefits to be returned to the Tribunal for a rehearing.

Final decision
The court found:

• The reconsideration decision was a nullity and of no force and effect. Since the hearing of the original petition, case law respecting judicial reviews of Tribunal decisions further developed. In fact, a leading decision in this area confirmed that the Tribunal acted without jurisdiction when it reviewed the original decision and rendered its reconsideration decision. Given that it had no lawful ability to review the original decision in the manner that it did, there was no question that the reconsideration decision was a nullity and of no force or effect.

• The original decision denying full loss of earning benefits was not patently unreasonable. “Patently unreasonable” meant the result had to almost border on the absurd, or a decision that was so flawed that no amount of deference could justify letting it stand. The question to ask here was whether there was any evidence supporting the original decision that Puar was somewhat employable. There was such evidence in a report by the occupational therapist and also when looking at employment history (he was able to work on a bottle recycling depot). There was some evidence that he could do some work four hours per day in a position that required him to occasionally stand and move around. Therefore, the original decision was not patently unreasonable.

Therefore, since the original decision was not patently unreasonable, that part of the application was denied. On the contrary, the parties regarding the reconsideration decision was granted to the extent that there would be a declaration stating that the decision was null and void and of no force and effect.

What can employers take from this case?
As can be seen from this case, courts give deference to the Tribunal because it has the expertise in workers’ compensation matters. In fact, the standard of review here was patently unreasonable, which means it was so flawed that no amount of deference can justify letting the decision stand. In this case, the decision that loss of earning benefits should only be partial was supported in the evidence and could stand.

Christina Catenacci, BA, LLB, LLM, editor, HRinfodesk, published by First Reference,

Originally published in HRinfodesk September 2015.