Administrative law – Workers compensation – Procedural fairness – Privative clauses
Clouston v. British Columbia (Workers Compensation Board),  B.J.C. No. 353, British Columbia Court of Appeal, February 21, 2002, Rowles, Ryan and Donald, JJ.A.
The Appellant worked for many years as a marine engineer with the Canadian Coast Guard. During his employment with the Coast Guard, the Appellant suffered from various back ailments that he claimed were work-related. The Appellant retired early in 1994 for medical reasons. The WCB determined that some of the Appellant’s back ailments were work-related and awarded him a 7.5% disability pension.
In September 1993, the Appellant struck his head on an overhead frame while aboard one of the Coast Guard vessels. Upon being transported to shore the Appellant’s back condition was aggravated while travelling in an inflatable boat. In 1996, Appellant’s file was considered by a medical review panel on the issue of whether or not the September 1993 incident added to his compensable disability. The panel ruled against the Appellant. On March 29, 1997, the Appellant’s lawyer wrote to the WCB requesting that the Appellant’s claim be reopened. The WCB refused the request, and an appeal was taken to the Review Board of the WCB. The appeal succeeded to the extent that a panel of the board found that the September 1993 incident aggravated the appellant’s back condition. The matter was remitted to the WCB. The review panel’s 1999 decision stated in part:
We ask that the Workers Compensation Board then refer Mr. Clouston for an assessment of his current lower back condition to an orthopedic surgeon for a comment and an opinion as to whether the condition in his back which is currently present relates to the 30-odd back claims which Mr. Clouston has suffered from while employed by the Canadian Coast Guard. We would then ask that Mr. Clouston’s claim be referred to the disability awards department for reassessment of the degree of the impairment in his lower lumbar spine.
As a result of this decision, the WCB engaged an orthopedic specialist who examined the Appellant’s entire file but did not order an additional medical examination of the Appellant. The Appellant took the case to the BC Court of Appeal, arguing that the WCB failed to consider the Appellant’s current condition when they reconsidered his case, and thus failed in its duty to proceed fairly. The BC Court of Appeal held that the examination was simply a recommendation by the Review Board, and that the WCB acted fairly when they referred the file to an orthopedic specialist. The court held that the Appellant did not require a medical examination, and that the medical examination was a recommendation of the Review Board rather than a directive. The WCB was free to carry out an assessment in the way that it saw fit, subject to the considerations of procedural fairness. The Court of Appeal held that the reviewing judge made no error in dismissing the petition for judicial review.
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