WCAT Decision Number:  
A1903050 (March 3, 2022)  
DECISION OF THE WORKERS’ COMPENSATION APPEAL TRIBUNAL  
WCAT Decision Number:  
A1903050  
WCAT Decision Date:  
March 3, 2022  
Introduction  
[1]  
In December 2017 and January 2018, the worker, a registered psychiatric nurse, felt discomfort  
in her left shoulder while at work. This worsened and progressed over time to the point that, in  
early 2018, she sought medical treatment for these symptoms and, on November 1, 2018, she  
submitted a claim for compensation to the Workers’ Compensation Board (Board).1  
[2]  
[3]  
[4]  
[5]  
In a March 4, 2019 decision, a Board case manager concluded that the worker was not entitled  
to compensation for her left shoulder condition.  
A review officer with the Board’s Review Division confirmed this decision on October 28, 2019  
(Review Reference #R0251024).  
The worker has appealed the Review Division decision to the Workers’ Compensation Appeal  
Tribunal (WCAT).  
I held an oral hearing by videoconference on September 9, 2020. The worker and her union  
representative participated in the appeal. The employer is not participating in the appeal.  
Issue(s)  
[6]  
[7]  
The sole issue raised by the worker in this appeal is whether her left shoulder condition is an  
occupational disease that is due to the nature of her employment.  
Jurisdiction and Standard of Proof  
This appeal was filed with WCAT under section 288(1) of the Workers Compensation Act (Act)2  
which provides for appeals of final decisions by review officers regarding compensation matters.  
1
The Board operates as WorkSafeBC.  
References to section numbers in the Act are different from those in the Board and Review Division  
2
decisions under appeal. The Act was reorganized and renumbered under the Statute Revision Act  
(RSBC 1996, c 440) effective April 6, 2020. The purpose of the revisions is to make the Act easier to  
1
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1903050 (March 3, 2022)  
Section 308 of the Act gives WCAT exclusive jurisdiction to inquire into, hear, and determine all  
those matters and questions of fact, law, and discretion arising or required to be determined in  
an appeal before it.  
[8]  
[9]  
I am bound to apply the published policies of the board of directors of the Board, subject to the  
provisions of section 304 of the Act. The applicable Board policies are set out in the  
Rehabilitation Services and Claims Manual, Volume II (RSCM II).3  
The standard of proof that applies in this appeal is the balance of probabilities, as modified by  
section 303(5) of the Act. Section 303(5) provides that, where WCAT is hearing an appeal  
respecting the compensation of a worker and the evidence supporting different findings on an  
issue is evenly weighted in that case, WCAT must resolve that issue in a manner that favours  
the worker.  
Background  
[10]  
[11]  
The following summary is based on: the evidence in the claim file and in a prior claim file  
relating to a low back injury the worker sustained in October 2018;4 the testimony the worker  
provided during the oral hearing; new medical evidence that was submitted by the worker in  
support of the appeal; medical records I obtained after the hearing; and, the December 13, 2021  
opinion of Dr. Leith, orthopedic surgeon.  
Overview  
The worker is right-hand dominant and, at the time she filed her application for compensation  
(on November 1, 2018), she was 58 years old. She had recently gone off work from her job at  
the employer’s hospital where she works as a psychiatric nurse. She has been employed by the  
employer for over 10 years but, from 2013 to December 2017, worked only occasional shifts at  
read and understand and they are not intended to change the legal effect of the Act. Unless otherwise  
specified, all references to the Act refer to the current version of the Workers Compensation Act, RSBC  
2019, c 1.  
3
The applicable version of the RSCM II is that which was in effect on October 28, 2019, the date of the  
Review Division decision, with the exception that changes to Chapter 4 of the RSCM II (Occupational  
Disease) that took effect on April 6, 2020 apply to all decisions, including appellate decisions, made on  
or after April 6, 2020 and so apply in this appeal. I note that several applicable policies other than those  
in Chapter 4 of the RSCM II were amended on February 1, 2020 to provide guidance on the legal  
issues of standard of proof, evidence, and causation. Those amendments apply to decisions of the  
Board and Review Division made on or after February 1, 2020. They do not apply to WCAT decisions  
unless the Board decision or Review Division decision was made on or after February 1, 2020. The  
Board and Review Division decisions in this appeal were made before February 1, 2020, so the policies  
as they read prior to these amendments apply.  
4
WCAT arranged for this file to be disclosed to the worker.  
2
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1903050 (March 3, 2022)  
the hospital. Throughout these years, she worked as an instructor at a university and, while she  
had some prior left shoulder concerns, these consisted of achiness. In the months leading up to  
December 2017, these symptoms did not interfere with her ability to carry out any of her job  
functions or activities of daily living.  
[12]  
[13]  
In December 2017, the worker returned to working almost full-time hours at the hospital. She is  
a casual worker, but worked essentially the same shift rotation that regular nursing staff work.  
This involves rotations of 12 hours for four nights, followed by two to three days off, 8- to  
12-hour shifts for several days, followed by two to three days off, and then a return to 12-hour  
night shifts, but the worker usually worked 12-hour night shifts.  
During the oral hearing of the WCAT appeal, the worker explained that the work activity of  
admitting a patient requires that she fill in a number of screens on the computer. The first thing  
she does is set out a clinical profile. This involves clicking and a lot of typing to enter all of the  
patient’s medical and psychiatric history, including a history of what had happened and the  
event that brought them into the hospital. This information comes from a multitude of sources,  
including ones the worker accesses through the computer’s browser, but most of it comes from  
the initial interview she conducts with a patient when they arrive. Depending on how sick the  
patient is, the interviews can last up to an hour but, sometimes, it is not necessary to have an  
interview. The worker also has to enter information from psychiatric, police, and other reports,  
enter information the patient provides regarding whether they use drugs or substances, and, if  
the patient is suicidal, undertake a risk assessment and type up a safety plan. The worker said  
that there are about seven different screens she has to go into and entering the data is very  
time consuming. Admissions on a normal medical floor are much quicker than the mental health  
admissions she undertakes. She tries to do admissions in one sitting. However, as there are  
only a few nurses on shift at any time, the process can be interrupted by answering the  
telephone and by crises that arise. In these situations, she has to answer the telephone or go  
and deal with the crisis, and then come back and resume the admission process.  
[14]  
[15]  
By early 2018, the worker developed a burning sensation and constant pain in both shoulders,  
with the left shoulder being worse. There was no specific precipitating event, but she was  
spending multiple hours of each shift at a computer typing. Over time, the burning sensation and  
pain gradually worsened and she developed a frozen shoulder.  
During the oral hearing, the worker said that, after the burning sensation in her left shoulder  
started, she went on to feel pain around the top of her shoulder and to have difficulty moving the  
shoulder. Throughout 2018, the pain increased and became so bad that she had to take opiates  
to sleep at night. The worker said that, prior to beginning to work full-time hours at the hospital  
in December 2017, she had a stiff neck and left shoulder, but she did not experience the  
burning pain she began experiencing in the beginning of 2018 and that worsened after that  
point.  
3
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1903050 (March 3, 2022)  
[16]  
Medical records dating back to February 1, 2016 confirm that, prior to December 2017, the  
worker had a history of bilateral shoulder complaints. On February 24, 2017, the worker saw her  
family physician (then Dr. Glaude) to discuss an upcoming right-sided hip replacement.  
Dr. Glaude noted that the worker “has much” osteoarthritis “co[m]ing out of everywhere”5 and  
shoulder pain, and was wondering why all her joints were hurting. Dr. Glaude examined the  
worker’s hand (side not specified) but saw no obvious deformity or rheumatological disease.  
X-rays of both shoulders were taken on February 24, 2017 to investigate the cause of these  
complaints. These showed that, on the left, the worker had mild glenohumeral degenerative  
changes with a small inferior glenoid osteophyte. There was marked irregularity at the greater  
tuberosity suggestive of rotator cuff pathology, as well as irregularity at the inferior acromion.  
The right shoulder images showed normal alignment and joint spacing, no definite degenerative  
changes, mild irregularity at the greater tuberosity that might be related to rotator cuff pathology,  
and a possible bone island projecting in the superior humeral head.  
[17]  
Following February 28, 2017, there is no medical documentation of shoulder complaints until  
March 15, 2018. At that time, the worker saw Dr. Popovich, orthopedic surgeon, in follow-up for  
a right hip replacement Dr. Popovich had undertaken in March 2017. Dr. Popovich administered  
corticosteroid shots into the worker’s left shoulder, but did not document any history, symptoms,  
or signs relevant to the shoulder. Following the March 2017 right hip replacement, the worker  
had taken four months off work.  
[18]  
[19]  
The worker next sought medical attention for her left shoulder on August 1, 2018, when she was  
seen by Dr. MacDonald, her current family physician. The worker reported that she had had left  
shoulder pain since December of the prior year, with no history of injury. Her pain was  
progressively getting worse, and the past month had been really bad. Dr. MacDonald queried  
whether the worker had a damaged rotator cuff and ordered x-rays.  
X-rays taken on October 5, 2018 to investigate the cause of the worker’s ongoing worsening left  
shoulder pain, were reported as normal, with no appreciable degenerative change at the  
glenohumeral or acromioclavicular (AC) joints.  
[20]  
[21]  
The worker stopped working on October 22, 2018, after sustaining a compensable low back  
strain/sprain injury.6  
An October 29, 2018 MRI of the worker’s left shoulder showed: moderately severe degenerative  
changes within the AC joint; a small bone spur from the distal end of the clavicle that was  
5
All quotations have been reproduced as written, unless otherwise indicated.  
I note that, in submission, the worker’s representative expressed the understanding that the worker  
6
went off work at this time because she could not lift her left arm. This understanding is not consistent  
with the medical evidence on file, and was not supported by oral or written evidence from the worker.  
4
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1903050 (March 3, 2022)  
projecting into the subacromial space; a small amount of fluid within the subacromial and  
subdeltoid bursae; a full-thickness supraspinatus tear; and, a possible partial infraspinatus tear.  
[22]  
On November 15, 2018, Dr. Arneja, orthopedic surgeon, assessed the worker. Dr. Arneja  
concluded that the worker had two main problems. The first was a traumatic rotator cuff rupture  
(the full-thickness supraspinatus tear) that would likely require surgical treatment. The second  
was that the worker had developed arthrofibrosis over the past several months and, in  
Dr. Arneja’s view, this needed to be resolved prior to proceeding with surgical treatment.  
[23]  
[24]  
The worker’s compensable low back injury resolved by November 22, 2018, but the worker  
remained off work owing to her shoulder issues.  
Starting on December 6, 2018, Dr. MacDonald began reporting that the worker was disabled  
from work due to ongoing pain and limited range of motion arising from her left shoulder  
condition.  
[25]  
[26]  
Thereafter, the worker remained off work until November 2019.7 In a November 25, 2019 chart  
note, a locum for Dr. MacDonald noted that the worker would be commencing a graduated  
return-to-work. The worker’s frozen shoulder had improved and she now had almost full range  
of motion.  
In the next physician’s chart note, dated December 9, 2019, the locum noted that the worker  
had been back at work for two weeks and had done a few 8-hour and 12-hour shifts involving a  
lot of computer work. The locum said that the worker had managed, but there was some burning  
to shoulders at the end of one shift after she used a non-adjustable workstation in the “nurses  
medroom.”8  
[27]  
[28]  
In a January 20, 2020 chart note, Dr. Gallagher, a family physician, who also saw the worker in  
his capacity as a locum for Dr. MacDonald during the period May 6, 2019 to March 1, 2020,  
reported that the worker’s pain got better when she was off work but had slowly returned. The  
worker had ongoing burning in her shoulder, but this was not getting worse, and the right  
shoulder symptoms were now more significant than those in the left shoulder.  
As of the hearing date, the worker had still not undergone the surgery Dr. Arneja recommended  
in November 2018. She advised me that, as she is a casual worker, she is not entitled to  
long-term disability benefits and she cannot afford to take the time off work to undergo this  
procedure. After taking just over a year off work from October 22, 2018 through to  
December 2019, she began a gradual return to work and, by January 2020, had resumed her  
7
I note that, in submission, the worker’s representative expressed the understanding that the worker  
began her return to work in December 2018. This is not the case.  
I understand this to be a reference to nurses’ workstation No. 2  
8
5
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1903050 (March 3, 2022)  
full work duties and hours. She said that her left shoulder had not returned to its  
pre-December 2017 status and, since returning to her full duties, she has noticed increasing  
symptoms in the left shoulder and she has also been experiencing burning pain in her right  
shoulder as well.  
[29]  
The worker believes that the increasing left shoulder pain and the deterioration in range of  
motion in that shoulder that occurred from December 2017 through to October 22, 2018 was  
because of an occupational disease that she developed due to the nature of the work she  
performed as a psychiatric nurse.  
Request for Independent Assistance from Dr. Leith, Orthopedic Surgeon  
[30]  
[31]  
Section 302 of the Act allows WCAT to retain the services of a health professional if the tribunal  
determines that independent assistance or advice would assist in reaching a decision on an  
appeal. After the oral hearing, I concluded that such assistance would be helpful. WCAT  
retained Dr. Leith pursuant to the authority in section 302.  
In the terms of reference I provided to Dr. Leith, I set out a summary of the evidence and my  
findings of fact, and I asked Dr. Leith to respond to a series of questions, based on the facts as I  
have found them. I provided Dr. Leith with a full copy of the available medical evidence,  
including additional medical records I obtained after the hearing (chart notes from the worker’s  
attending physicians and physiotherapists, Dr. Popovich’s consultation reports, and additional  
hospital records).  
[32]  
The medical evidence includes four central documents that address the potential that the  
worker’s work duties and the physical aspects of the workstations at which she performed those  
duties may have had a causal role in the progression of her left shoulder condition between  
December 2017 and October 22, 2018. I provided a detailed summary of each of these.  
i. February 12, 2019 Opinion from Dr. Karrel  
[33]  
[34]  
This opinion was based on a review of the medical and other documentary evidence then  
available, the two brief videotapes the case manager took, discussion with the case manager,  
and a brief summary the case manager provided.  
Contrary to usual Board practice, the case manager did not complete a formal activity-related  
soft tissue disorder (ASTD) evaluation report. Instead, in the February 8, 2019 request for  
Dr. Karrel’s opinion, the case manager documented only the following facts:  
The worker denied any history of an acute traumatic incident at work or away from work.  
She did note there can be aggressive patients, but could not recall or identify any particular  
event or incident where she sustained an injury to the left arm/shoulder. Instead, she noted  
6
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1903050 (March 3, 2022)  
that her left shoulder just gradually started hurting after she started working only and  
full-time at [the employer’s hospital] in December 2017/January 2018 and she felt discomfort  
at work; this worsened and progressed over time to the point where she sought medical  
treatment in early 2018 and then decided to submit a claim to the Board in November 2018.  
During the worksite visit, the worker showed her various job duties and workstations as well  
as how she would work on the computer doing intake and discharge reporting. She felt this  
was the cause of her left shoulder complaints as she reported increased symptoms while  
typing.  
When typing, the worker typically worked at two of the workstations observed by the case  
manager, and when working at night, primarily worked at the workstation identified as the  
unit clerk workstation because, at this station, she was able to view video cameras that  
showed activity in the work area.  
[35]  
The case manager also set out the following brief conclusion:  
Based on my observations, I identified overall low force tasks with occasional  
entries into awkward left shoulder posture (awkward is considered greater than  
60 degrees forward flexion or abduction) but these were of very brief duration  
and only intermittent through the shift allowing for tissue/tendon recovery  
between movements. There wasn’t frequently repeated or sustained awkward  
left shoulder postures or jarring identified. There has also been no change in  
the frequency, intensity or duration of the work, including no unaccustomed  
work.  
[36]  
[37]  
After viewing the videotapes and discussing the file with the Board officer, Dr. Karrel prepared a  
February 12, 2019 opinion.  
Dr. Karrel said that the worker had a number of non-occupational risk factors that were relevant  
to her presentation:  
Pre-existing left shoulder, rotator cuff syndrome, with supraspinatus full-thickness  
tendon tear, partial thickness infraspinatus tendon tear, sub-acromial bursitis,  
ACJ OA [osteoarthritis in the acromioclavicular joint] and possible sub-acromial  
impingement.  
There is also left frozen shoulder diagnosed as a consequence of the worker’s  
pre-existing left shoulder rotator cuff syndrome.  
7
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1903050 (March 3, 2022)  
[38]  
Dr. Karrel said that the radiographic appearance of the worker’s left shoulder in the  
October 2018 MRI was more consistent with longstanding injury:  
For instance the supraspinatus full-thickness tear has already been complicated  
by atrophy and retraction of the worker’s left supraspinatus muscle. This takes  
several months to occur and is not likely to be part of an acute traumatic incident  
basis. Likewise, the left infraspinatus intra substance partial thickness tear and  
bicipital tendinopathy appear to be more consistent in appearance with  
longstanding injury.  
[39]  
Dr. Karrel said that the worker’s job duties involved a combination of fluid, dynamic,  
multi-planar, and intermittent left shoulder movements that included some repetition, light  
forces, no jarring, and variable dynamic range of motion. Dr. Karrel acknowledged that there  
was a certain degree of repetition/cyclical left shoulder movements, but he could not appreciate  
the significant single presence or a combination of repetitive movements, jarring or vibrational  
forces, awkward positions, or significant force applied to the worker’s left shoulder. Dr. Karrel  
concluded that the significant variation in the worker’s work activities allowed for muscle-tendon  
recovery and for variation in the actual shoulder motions. Dr. Karrel also concluded that the  
work activities often involved the left shoulder held in neutral or close to neutral postures.  
[40]  
[41]  
Dr. Karrel acknowledged that the worker experienced her symptoms during the work activity.  
However, he said that, in the absence of a plausible biomedical mechanism of injury, the  
temporal relation alone could not support a causal link. Given the mechanism described and  
reviewed, it appeared that the work activities were revealing some symptoms but they did not  
play a role in the development of her left shoulder conditions. In addition, in the absence of  
significant risk factors, the job duties might have brought out symptoms indicating the presence  
of an underlying condition without worsening or accelerating the condition itself.  
The factual background set out in Dr. Karrel’s opinion is largely accurate. However, I noted in  
the terms of reference I provided to Dr. Leith that Dr. Karrel stated that it appeared that the  
worker was accustomed to her job duties. Consequently, it appears that Dr. Karrel overlooked  
the fact that the worker had only been performing the full-time duties to which she attributed her  
disability in October 2018 since December 2017, at or about the time the worker began  
experiencing her worsening left shoulder symptoms.  
ii. Mr. Everett’s February 20, 2020 Ergonomic Risk Assessment Report9  
[42]  
Mr. Everett, an occupational therapist and registered ergonomist, attended the worker’s worksite  
and prepared his February 20, 2020 report at the request of the worker’s representative. The  
report was provided to WCAT in support of the worker’s appeal.  
9
As corrected on March 23, 2020.  
8
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1903050 (March 3, 2022)  
[43]  
[44]  
[45]  
Mr. Everett took video evidence and pictures, including videotapes of the worker using the two  
workstations she generally used in the period December 2017 through October 22, 2018.  
Mr. Everett referred to these workstations as “unit clerk workstation” and “nurses’ workstation  
No. 2” and, in this decision, I have used the same terminology to describe these desks.  
Mr. Everett identified that his assessment involved the use of multiple ergonomic approaches,  
methods, and techniques, including manual goniometry, electrogoniometry, and surface  
electromyography (sEMG), which he said he cross-validated through a process known as  
triangulation.  
Mr. Everett identified a number of risk factors, and assessed the worker’s exposure to these.  
These include risk factors that are not identified in the Board policy or in the practice directive  
that provides guidance to Board officers in considering ASTD claims, but Mr. Everett identified  
them as ones that are known to ergonomists and described in available medical/scientific  
research as relevant to an ASTD of the shoulder (page 7 of his report):  
E.g. reader may not be aware of awkward cervical and thoracic spine postures  
and awkward scapular postures that narrow subacromial space between humeral  
head and overlying skeletal structures (e.g. acromion process) and increase  
propensity for supraspinatus impingement.  
[46]  
Mr. Everett then discussed the risk factors he believed the worker was exposed to during her  
work activities and which he found relevant to the worker’s left shoulder conditions (pages 8  
through 17 of his report). I included a list of the factors Mr. Everett identified in my terms of  
reference.  
[47]  
[48]  
Mr. Everett concluded that the worker was not exposed to the awkward shoulder postures of  
shoulder flexion greater than 60 degrees or shoulder abduction greater than 60 degrees when  
the worker was working at the unit clerk workstation.  
In the conclusion section of his February 20, 2020 report, Mr. Everett relied on both the findings  
in the July 5, 2019 ergonomic assessment report I have summarized below and his own findings  
regarding the worker’s risk exposures. His conclusions regarding the exposures he identified in  
the worker’s use of nurses’ workstation No. 2 while standing and the unit clerk workstation were  
as follows:  
With the increased computer work the worker did in and after December 2017, there was a  
corresponding increase in the magnitude/intensity, frequency, and duration of mechanical  
exposure to undesirable and unacceptable task positioning; awkward postures; and left  
upper trapezius loading attributable to marked ergonomic deficiencies in workstation  
design(s). This meant work was likely unaccustomed.  
9
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1903050 (March 3, 2022)  
There was frequent composite shoulder abduction in the scapular plane and internal  
shoulder rotation when the worker moved her arms away, around, and in front of her  
relatively large chest to type on the keyboard.  
There was marked left scapular elevation, right trunk rotation, and forward rounding of the  
left shoulder when the worker worked at the unit clerk workstation.  
There was continuous and increased left scapular elevation, protraction/abduction (classic  
“winging” of the scapula), and anterior tilting of the scapula when the worker worked at both  
workstations.  
There was continuous and increased forward head, forward head rounded shoulders  
posture, and forward head scapular abducted posture when the worker sat at both  
workstations, which resulted in continuous and increased flexion of the cervical and thoracic  
vertebra and hyperextension of the upper cervical vertebra, although there was a reduction  
in these postures and a corresponding reduction in left upper trapezius muscle activity and  
static loading when the worker stood at nurses’ workstation No. 2.  
These awkward postures were generally sustained postures associated with repeated  
muscular effort.  
There was significant or more than significant static loading of the left upper trapezius when  
the worker worked at both workstations, although less when the worker stood at nurses’  
workstation No. 2. There was also significant static loading for the left middle trapezius  
(superficial to rhomboids which contribute to scapular elevation).  
There was 2% of work cycle for left upper trapezius to return to relaxed or resting level of  
muscle activity when the worker worked at the unit clerk workstation and 0% of work cycle  
when the worker worked at nurses’ workstation No. 2, which was substantially less than the  
50% of work cycle required for physiological recovery of muscles. The percentage of work  
cycle for the left middle trapezius was of a similar magnitude.  
The fact that the worker uses trifocal lenses resulted in repetitive movement as well as  
increased static loading of the neck muscles.  
The relatively small font of electronic medical records resulted in overall forward rounding of  
the cervical, thoracic, and lumbar vertebrae.  
Marked ergonomic deficiencies at the workstations contributed to awkward postures, more  
than significant static postural loading of the left upper trapezius and non-optimal work  
techniques.  
[49]  
Based on his assessment, Mr. Everett concluded as follows (on page 22 of his report):  
Therefore, it is my professional opinion, based on the triangulation of findings  
from multiple ergonomic approaches, methods and techniques and the available  
10  
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1903050 (March 3, 2022)  
medical scientific research, to the effect, that [the worker] was exposed to  
significant occupational risks over a prolonged period that, alone and or in  
combination, more likely than not, contributed to a marked increase risk to  
musculoskeletal structures of the left (and right) shoulder, scapulae and cervical,  
thoracic and lumbar vertebra.  
iii. July 5, 2019 Ergonomic Assessment Report that was Completed by an Ergonomic  
Consultant at the Employer’s Request.  
[50]  
At the employer’s request, the ergonomic consultant (a kinesiologist) assessed nurses’  
workstation No. 1 and nurses’ workstation No. 2 on July 5, 2019. The consultant did not assess  
the unit clerk station. Overall, the consultant found nurses’ workstation No. 1 and nurses’  
workstation No. 2 were not ergonomically set up and adjustments could not be made to change  
this. In particular, the fixed heights of the desks did not fit most employees when sitting or when  
standing for both charting and computer work. Despite the availability of a height-adjustable  
stool, the individual workers had to accommodate with “awkward, static postures at the back,  
neck, shoulder, elbows, and wrist.” However, the consultant did not specify what these postures  
were, and there are no pictures of them. The consultant also noted that there were issues with  
the stools, including that, because they did not have castors, awkward postures had to be used  
to forcibly move them. The consultant recommended that the employer purchase  
height-adjustable workstations to accommodate the multiple users of the workstations.  
iv. April 26, 2020 Medical-Legal Opinion from Dr. Gallagher  
[51]  
In support of the worker’s appeal, the worker’s union obtained an April 26, 2020 medical-legal  
opinion from Dr. Gallagher. Dr. Gallagher concluded that the ergonomic reports from Mr. Everett  
and the ergonomic consultant gave a more complete picture of the reasons the worker  
developed shoulder pathology than did the Board officer and Dr. Karrel, and that Mr. Everett’s  
report was persuasive. In summary, he said that there were multiple plausible biomedical  
mechanisms for stressing of the worker’s tendons/tissues to occur and, in his opinion, the  
timeline of symptoms reported by the worker fit well with a rotator cuff injury due to the activities  
in her job:  
I feel that given this, the temporal relation instead provides further evidence that  
change in her work environment and increase in hours she described could have  
contributed to her condition. I agree that it is still not possible to prove this with  
certainty, but I feel the evidence presented is compelling clinically.  
The mechanisms suggested in the ergonomics reports are more likely to  
represent a rotator cuff injury provoked by her increase in work which eventually  
led to a frozen shoulder.  
11  
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1903050 (March 3, 2022)  
[52]  
[53]  
Dr. Gallagher agreed with Mr. Everett’s conclusion that the worker’s nursing duties could have  
caused or contributed to both rotator cuff injury and frozen shoulder. He also felt that the sudden  
increase in pain the worker experienced one month prior to August 1, 2018 fit with a possible  
progressive tear in and around July 2018.  
Dr. Gallagher disagreed with most aspects of Dr. Karrel’s opinion. He said that:  
Dr. Karrel did not have the benefit of the July 5, 2019 ergonomic assessment report or of  
Mr. Everett’s report, which he said support that the increase in workload following  
December 2017 likely caused or contributed to the worker’s left shoulder condition and  
provide evidence that is contrary to Dr. Karrel’s view that there was no significant single  
presence or combination of repetitive movements, jarring or vibrational forces, awkward  
positions, or significant force applied to the worker’s shoulders; in particular, he said that  
Mr. Everett’s report provided clinically compelling evidence of multiple plausible biomedical  
mechanisms for stressing of the tendons and tissues in the worker’s left shoulder.  
Dr. Karrel based his opinion on the understanding that there was no increase in workload  
following December 2017, which is not accurate.  
The non-occupational risk factors Dr. Karrel identified constitute a list of diagnoses that were  
not confirmed with 100% certainty until the October 2018 MRI was completed; they were not  
“risk factors” and, further, the medical evidence does not support that the worker had a  
frozen shoulder prior to December 2017.  
Contrary to Dr. Karrel’s view that the radiographic appearance of the worker’s left shoulder  
in the October 2018 MRI was consistent with a longstanding injury and that it was most  
likely that the MRI findings constituted degenerative changes that occurred gradually over  
time, the medical evidence suggested that the tear occurred a minimum of three to four  
months prior to August 1, 2018, when the worker first saw Dr. MacDonald about her left  
shoulder condition (with signs and symptoms that were consistent with a tear), and possibly  
occurred as long as ten months prior, from the beginning of the increase in workload/pain  
the worker experienced. Further, the February 28, 2017 x-ray is not necessarily a reliable  
indicator of pre-existing left shoulder pathology, given that the x-ray on October 5, 2018 did  
not identify such pathology.  
Contrary to Dr. Karrel’s opinion that the worker’s job duties may have been enough to  
provoke her left shoulder symptoms but they did not alter the course of the pre-existing left  
shoulder condition, this cannot be assumed given the temporal association between the  
onset of left shoulder pain and the increase in work duties involving the risk factors identified  
in Mr. Everett’s report and the ergonomic consultant’s report. Also, the mechanisms  
suggested in the ergonomic reports are more likely to represent a rotator cuff injury provided  
by the worker’s increase in work activity, which eventually led to a frozen shoulder.  
12  
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Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1903050 (March 3, 2022)  
While the scenario in Dr. Karrel’s opinion is possible (and it is impossible to know without  
having had an MRI before her condition arose), it is less likely given the medical evidence  
and the ergonomic evidence that is now available.  
[54]  
Dr. Gallagher also said that:  
While elevated body mass index is a risk factor for frozen shoulder, “frozen shoulder  
secondary to an injury/immobilization (e.g. pain) is a common mechanism and seems likely  
and at the very least plausible in this case.”  
Even if the worker had arthritis in her left shoulder prior to December 2017, this condition  
appeared to have been worsened/accelerated after her hours of work were increased in an  
ergonomically deficient environment.  
Dr. Leith’s December 13, 2021 Independent Health Professional Report  
[55]  
[56]  
Dr. Leith responded to my request for assistance in the December 13, 2021 report. My terms of  
reference, which set out the reasons for the findings of fact I made, and Dr. Leith’s report were  
disclosed to the worker. As the content of my terms of reference are known to the worker, I will  
not repeat the full factual background here.  
In summary, based on my review and consideration of all of the evidence, I found as a matter of  
fact that:  
Prior to December 2017, the worker had some pain in both shoulders and a stiff neck and  
left shoulder. However, in the months leading up to December 2017, these symptoms did  
not interfere with her ability to carry out any of her job functions or activities of daily living  
and she was not experiencing the sharp left shoulder pain she later developed.  
Starting in December 2017, the worker developed a burning pain in her left shoulder. There  
was no precipitating cause, but she was spending multiple hours of her workday in the  
hospital at a computer typing.  
Although Dr. Arneja diagnosed a “traumatic” rotator cuff tear in the November 15, 2018  
consultation report, there is no evidence of the worker having developed a rotator cuff tear  
through exposure to any specific traumatic event.  
Over time, the left shoulder pain increased and the worker went on to develop a frozen  
shoulder.  
The worker was unaccustomed to working the increased amount of shifts and at the desks  
she used in and after December 2017, as she had previously only worked the occasional  
shift at the hospital.  
13  
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
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WCAT Decision Number:  
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From December 2017 through to October 2018, the worker generally worked at nurses’  
station No. 2 while in a standing position, with the keyboard positioned on the desk, and at  
the unit clerk workstation, again with the keyboard positioned on the desk.  
The worker could spend up to two hours at a time at either of these workstations, for a total  
of four hours and, occasionally six hours, per shift, but she spent more time at the unit clerk  
workstation because she worked more night shifts than day shifts and primarily used the unit  
clerk workstation on those shifts.  
The worker’s use of nurses’ workstation No. 1 was very limited during the period relevant to  
this appeal.  
As the worker usually stood when using nurses’ workstation No. 2, her use of this station  
while seated was very limited during the time relevant to this appeal.  
The worker uses her dominant right hand for mousing and handwriting.  
The worker’s posture while working and the nature of her work duties were accurately  
represented for purposes of assessing cause, activation, or acceleration of her left shoulder  
conditions, in specific portions of the videotapes taken by Mr. Everett (as set out in my terms  
of reference) and in two brief videotapes the Board officer took during the worksite visit.  
[57]  
[58]  
In addition to reviewing the documents I had provided to Dr. Leith and my terms of reference,  
Dr. Leith interviewed the worker and undertook a physical examination. By way of background  
to his conclusions, Dr. Leith set out my findings of fact, additional information the worker  
provided to him during the examination, and his examination findings. He then provided a  
response to each of the questions I had asked him.  
In my first question, I asked Dr. Leith to identify the diagnosis that best accounts for the worker’s  
worsening left shoulder symptoms in the period December 2017 through October 22, 2018 and  
left shoulder disability after October 22, 2018. Dr. Leith stated that, at the time of his evaluation,  
there was no real clinical diagnosis that could be applied to the worker, given the fact that her  
examination was mostly normal:  
Her history would be most consistent with that of myofascial pain or with the  
onset of an idiopathic frozen shoulder which in the early phase begins with pain  
followed by stiffness. This then evolves to a lessening of pain followed by  
thawing and improved range of motion and eventual return to near normal range  
and no pain or weakness.  
While MRI imaging reported a rotator cuff tear, this was an incidental finding. The  
tear was not caused by her work activities and could not have been caused by  
her work activities since there was no acute onset of pain which would be  
expected with an acute traumatic tear of the rotator cuff tendons. There was also  
14  
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Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1903050 (March 3, 2022)  
no possible mechanism from her work activities to cause injury to the rotator cuff  
tendons or any of the structures of the shoulder joints.  
Also, the majority of rotator cuff tears reported on MRI are not caused by any  
traumatic event. Most rotator cuff tears are secondary to age related attritional  
tearing that increases with each decade after the age of 40.  
[59]  
[60]  
Second, I asked Dr. Leith to advise whether, having regard to the evidence, including the  
relevant video evidence, the tendon(s) and tissue(s) associated with the diagnosed condition  
were involved in the activities the worker performed at work and whether those activities would  
potentially cause injury to these tendons and tissues.  
Dr. Leith said that, while there may be some activation of the rotator cuff and deltoid while using  
a computer, it is usually very low grade and of low contraction power. None of the activities  
noted would cause injury to the rotator cuff tendons or to the tissues of the shoulder joint.  
Further, in his opinion, the videos did not show any posture or use of the upper extremity that  
would cause any injury to the shoulders or the structures of the shoulders.  
[61]  
[62]  
Third, I asked Dr. Leith to comment specifically on whether the worker’s work duties at nurses’  
workstation No. 2 (while standing) and at the unit clerk workstation involved abduction or flexion  
of the shoulder joint greater than 60 degrees. Dr. Leith concluded that the workstation videos  
did not demonstrate this position or any position of the shoulders or arms that would result in an  
injury.  
Fourth, I asked Dr. Leith to comment more generally on whether the worker’s work duties from  
December 2017 through to October 22, 2018 were capable of stressing the tendon(s)/tissue(s)  
and, if so, whether it was at least as likely as not that this stress was at the level that would be  
of causative significance (more than trivial or insignificant) to the development of the  
pathological condition(s) defined in the diagnoses he had identified in response to my first  
question.  
[63]  
Dr. Leith provided the opinion that the worker’s duties from December 2017 through to  
October 22, 2018 were not capable of stressing the relevant tendon(s)/tissue(s) and would not  
have been of causative significance to the development of a frozen shoulder, since frozen  
shoulder is an idiopathic condition not caused by any known activity or trauma. He said that it  
was extremely unlikely that the worker suffered an ASTD, given that the evolution of the frozen  
shoulder was very clear and consistent with the disorder. In his opinion, the frozen shoulder was  
not affected by the worker’s work activities, which were incidental and contemporaneous, but  
were in no way contributory or causative of her left shoulder complaints.  
[64]  
In Dr. Leith’s opinion, the imaging that was ordered was not indicated by the history and  
examination findings, and it reported age-related changes to the tissues that were unaffected by  
15  
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Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1903050 (March 3, 2022)  
the work activities. Dr. Leith said that the worker’s complaints could have been caused by sleep  
positioning, any activity of daily living involving use of the shoulders repetitively at or above  
shoulder level, or any other movement that caused a muscular strain. He said that the frozen  
shoulder symptoms have no specific cause, since this diagnosis is idiopathic, and confirmed his  
view that the worker’s condition was not due to the work conditions or activities.  
[65]  
In response to my fifth question, Dr. Leith repeated his view that the imaging reports were  
misguided and had no relevance to the worker’s claim:  
Imaging should never be used in isolation to determine causation or even make  
the diagnosis. Diagnosis should be made based on a thorough clinical history  
and physical examination. Imaging is only then used to confirm the diagnosis or  
support the diagnosis.  
[66]  
[67]  
I also asked Dr. Leith to discuss whether he agreed or disagreed with specific aspects of the  
opinions from Dr. Karrel and Dr. Gallagher regarding the causal role the worker’s work activities  
played in development of her left shoulder condition.  
With regard to Dr. Karrel’s opinion on causation, I noted in the terms of reference, that  
Mr. Everett had raised a number of issues at page 19 of his report upon which, in his view, the  
validity of Dr. Karrel’s opinion and the reliability of the observations and video evidence of the  
Board officer could be put in issue. I asked Dr. Leith consider Mr. Everett’s comments in  
discussing his agreement or disagreement with Dr. Karrel’s opinion regarding causation of the  
worker’s left shoulder condition.  
[68]  
Dr. Leith said that, for the reasons he had already provided, he agreed with Dr. Karrel’s opinion  
regarding the absence of a plausible biomedical mechanism and the absence of significant risk  
factors that would have caused a worsening or acceleration of the worker’s shoulder condition.  
He also wrote:  
The opinion of Mr. Everett does not offer any relevant information to the  
symptoms experienced by [the worker]. They indicate mostly left upper trapezius  
muscle use. There is nothing from this report that would be consistent with  
pathology being related to the rotator cuff.  
The writer’s review10 of the videos of the work stations and use at those stations  
does not show any mechanism for injury or cause for symptoms to the shoulders.  
[footnote added]  
10  
Dr. Leith was referring to himself as “the writer.”  
16  
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Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1903050 (March 3, 2022)  
[69]  
[70]  
With regard to Dr. Gallagher’s opinion on causation, I asked to Leith to discuss the reliability of  
the findings and conclusions Dr. Gallagher relied on in Mr. Everett’s report.  
Dr. Leith said that the rationale Dr. Gallagher provided for supporting Mr. Everett’s opinion on  
causation (that the multiple ergonomic risk factors noted in Mr. Everett’s report suggest it was at  
the very least plausible and more likely probable that the worker’s duties could have precipitated  
her left shoulder rotator cuff syndrome) was incorrect. Dr. Leith explained as follows:  
As indicated, the Everett ergonomic report has no bearing on the imaging  
pathology or the development of an idiopathic frozen shoulder. Dr. Gallagher  
indicated that frozen shoulder secondary to an injury/immobilization is a common  
mechanism and seems likely and at the very least plausible in this case.  
Unfortunately, a frozen shoulder caused by an injury/immobilization has a very  
obvious acute event causing pain to the shoulder joint resulting in immobilization  
immediately. This is not what occurred in this matter.  
Idiopathic frozen shoulder occurs without any apparent or acute event, is gradual  
in onset usually beginning with pain followed by stiffness then slow resolution of  
pain then progressive resolution of the stiffness. This presentation is most  
consistent with what occurred in this matter. [The worker] unfortunately most  
likely developed an idiopathic frozen shoulder with an incidental imaging findings  
of a degenerative rotator cuff tear.  
Therefore, the report of Dr. Gallagher is also incorrect and fails to recognize this  
diagnosis of an idiopathic frozen shoulder.  
[71]  
[72]  
Finally, I asked Dr. Leith to discuss the conflicting opinions of Dr. Karrel and Dr. Gallagher  
regarding whether the worker had a pre-existing left shoulder condition of medical significance  
prior to her presentation in December 2017/early 2018 through October 2018 and, if so, whether  
the worker’s employment activated or accelerated the pre-existing disease to the point of  
disability in circumstances where such disability would not have occurred but for the  
employment.  
Dr. Leith agreed with Dr. Karrel’s opinion that the worker had pre-existing left shoulder  
pathology, and he said that none of the pre-existing degenerative changes noted on imaging  
were aggravated or caused by her working conditions or activities:  
The left frozen shoulder being idiopathic would have occurred in the absence of  
her working and therefore none of the pre-existing anatomy has contributed to  
her symptoms.  
17  
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1903050 (March 3, 2022)  
[73]  
Dr. Leith also agreed with Dr. Gallagher’s opinion that the frozen shoulder was not a  
pre-existing condition and that it developed after December 2017. However, as he had  
previously noted, Dr. Leith said that the worker’s work activities did not have any impact on the  
idiopathic frozen shoulder or the pre-existing left shoulder pathology. Dr. Leith also stated that,  
contrary to Dr. Gallagher’s opinion, he agreed with Dr. Karrel that the findings reported in the  
October 2018 MRI were age-related degenerative changes and were not acute or caused by the  
worker’s work activities at the computer stations.  
Additional Evidence from the Worker  
[74]  
[75]  
I arranged for disclosure of Dr. Leith’s December 13, 2021 independent health professional  
report along with the terms of reference I had prepared. In response, the worker’s  
representative provided WCAT with two emails the worker had sent to him.  
In the first, dated January 10, 2022, the worker said that:  
Because of her left shoulder condition, she has suffered financial hardship and had to sell  
her house.  
She had been discouraged by the amount of time the appeal process took and she noted  
that she had done whatever was asked of her by WCAT, but said that her prior belief that  
the WCAT process was neutral has been severely tarnished by her experience in this  
appeal.  
She believes Dr. Leith had a bias and that WCAT arranged the assessment by him “with the  
intention of finding someone who would finally agree with their assumptions.”  
Dr. Leith did not mention that, when she returned to her old position at work, her symptoms  
started to come back and she also started to get pain in her right shoulder.  
Although her time off work allowed for some healing and for her pain to be manageable, she  
never did regain full use of her left arm.  
When she changed jobs to one where she rarely used a computer, she had no symptoms.  
She was deeply hurt and sickened when she read Dr. Leith’s report and, some time back,  
started to think that WCAT would never approve her claim and would “continue to delay this  
process until they find someone to disclaim me and agree with them that I should not be  
compensated.”  
[76]  
In the second, dated January 12, 2022, the worker added that:  
When she first made her claim for compensation, a Board officer advised her that she would  
never get compensated because of her age and that, if the Board accepted claims from  
18  
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Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1903050 (March 3, 2022)  
everyone with shoulder injuries, that would mean most of the public would have a claim  
accepted.  
Dr. Leith had also made a similar statement referencing her age and she knew from that  
moment that her claim would be refused.  
She believed that Dr. Leith was biased and showed a lack of care and concern for her,  
including by reason of the fact that he disagreed with the opinions on diagnosis and  
causation provided by her own doctors and appeared to believe that only his own opinion  
mattered.  
She believes that, if either Dr. Arneja or Dr. Popovich had been asked to provide their  
opinions, they would have supported her claim:  
Rather I am forced to accept the final words [from] a doctor who clearly will  
favour on the side of WCAT and not the patient despite the documentation  
from other professionals who extensively assessed, diagnosed and without  
prejudice, documented the truth.  
Submissions  
[77]  
[78]  
The worker’s representative provided oral submissions at the end of the hearing and also  
provided a written submission.  
In summary, he submitted that:  
The case manager’s assessment of risk factors was so flawed and abysmally deficient that it  
should be given no weight. The case manager was not professionally qualified to conduct an  
ergonomic assessment of risk factors or to provide expert evidence regarding workplace  
exposures to risk factors relevant to development of an ASTD. Further, the case manager  
did not produce a report and so there is no record of the measurements or methods used  
during the assessment and, given the fact that the videos the case manager took were very  
short, they cannot be relied on as a reliable basis to assess the risk factors the worker was  
exposed to.  
As it was based on the case manager’s unreliable assessment of risk factors and only two  
very brief videotapes (1 minute and 26 seconds and 57 seconds in length), Dr. Karrel’s  
opinion should also be given no weight.  
There is no evidence the case manager had any professional qualifications to perform  
ergonomic assessments; in contrast, the ergonomic consultant and Mr. Everett are  
professionally qualified by post-secondary degrees.  
As Dr. Gallagher relied on the “detailed” reports of the ergonomic consultant and  
Mr. Everett, and provided a “well detailed” opinion that was based upon a much more  
19  
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1903050 (March 3, 2022)  
complete set of facts and information than was Dr. Karrel’s opinion. Dr. Gallagher’s opinion  
meets the criteria for causative significance for a compensable condition as per the  
reasoning that is set out in decisions including McKnight v. Workers’ Compensation Appeal  
Tribunal, 2012 BCSC 1820 and British Columbia (Workers’ Compensation Appeal  
Tribunal) v. Fraser Health Authority, 2016 SCC 25, and should be accepted. There would  
have been no symptoms or disability in the absence of the occupational risk factors  
identified by the ergonomic consultant and Mr. Everett, and that there was a temporal  
relationship, as recognized by Dr. Karrel.  
The ergonomic assessments find exposures to risk factors that are medically plausible to be  
causative of the worker’s left shoulder condition (as set out in Board policy), the condition  
arose temporal to those exposures, there have been significant changes to the work that  
make it unaccustomed, and there are other workers doing the same work that have suffered  
similar symptoms.  
There is no evidence to support a non-occupational cause and the work activities are, more  
likely than not, of causative significance to the worker’s left shoulder condition.  
[79]  
In the final written submission the worker’s representative provided after receiving disclosure of  
Dr. Leith’s December 13, 2021 report, the worker’s representative maintained that the worker’s  
work activities were likely of causative significance to her left shoulder condition and her appeal  
should be allowed. The representative submitted that the worker’s experience with her  
symptoms is relevant to Dr. Leith’s opinion. While Dr. Leith opined that the worker’s shoulder  
condition is idiopathic, this conflicts with the worker’s experience of the symptoms worsening  
with specific work activities and improving when away from those activities; if the condition were  
idiopathic, there would be no relationship between the symptoms and the work activities.  
[80]  
In addition, the representative expressed concern about the length of time this appeal has  
taken. Further, he took the position that my decision to seek additional medical evidence  
through the independent health professional process evidenced bias on my part. In particular,  
the representative submitted that:  
Based on his experience in the current appeal and previous appeals he has had in appeals I  
have adjudicated, “the panel on this appeal has a strong tendency to pursue evidence to  
support a desired conclusion rather than to accept and consider evidence that has been  
appropriately presented” in the appeal.  
I “opinion shopped” by seeking an opinion from an orthopedic surgeon rather than from an  
occupational medicine specialist and left “no stone unturned for the potential to reach an  
adverse decision” on the worker’s appeal.  
While it is recognized that Dr. Leith has a higher degree of expertise in regard to “traumatic  
shoulder injuries” than the other physicians involved in this claim, he does not have a higher  
degree of expertise in regard to “repetitive musculoskeletal injuries.” Thus, the choice of an  
20  
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Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1903050 (March 3, 2022)  
orthopedic surgeon for an independent health professional opinion was “inappropriate,” and  
instead an appropriate specialist for an independent health professional opinion would have  
been an occupational medicine physician.  
My decision to identify only orthopedic surgeons for appointment was not understandable.  
The appointment of an orthopedic surgeon “is not relevant to an ASTD shoulder claim” and,  
in the face of “sufficient and appropriate evidence” that would allow me to decide the claim,  
both the exceptional length of time the appeal has taken and the additional independent  
health professional process presented hardship and unfairness to the worker.  
[81]  
Further, the representative suggested in his final submission that the deadline set for provision  
of his submission had impeded his ability to obtain necessary further evidence. The  
representative said that it was not possible to provide further expert evidence in the timeframe  
provided for response and that, “It would be impossible to engage an appropriate expert to  
obtain an opinion in anywhere near the time frame that would likely be permitted.” In addition,  
the representative advised that it was impractical to obtain an expert evidence response, ““due  
to the expense and resources required to obtain expert evidence and the lack of support in the  
appeal system for appellants to obtain relevant expert evidence.”  
Analysis  
Allegations of Unfairness and Bias  
i. Procedural Delays  
[82]  
I acknowledge that, as set out in the submissions provided by the worker’s representative, the  
processing of the worker’s appeal has taken a long time and I acknowledge his submission that  
the worker has found the appeal process “grueling, discouraging, and disheartening.” The  
worker’s representative has submitted that the delays, in part, resulted from bias on my part and  
I have addressed this allegation below. However, beyond that, he has not identified any basis  
upon which it could be concluded that the time involved in processing the appeal has prejudiced  
the worker’s ability to fully and fairly present her case. I have not been able to identify a basis for  
finding that the passage of time has in any way resulted in a denial of procedural or substantive  
fairness to the worker and I am not persuaded that the passage of time has impacted my ability  
to fully and fairly consider the merits of her appeal.  
ii. Inadequate Time to and Insufficient Resources to Respond to Dr. Leith’s Report  
[83]  
The worker’s representative has said that the deadline set by WCAT for provision of a  
responding submission to Dr. Leith’s opinion made it “impossible to engage an appropriate  
expert to obtain an opinion.” I note that, in accordance with WCAT’s normal process, disclosure  
of Dr. Leith’s report was accompanied by an invitation that the worker’s representative provide a  
21  
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Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1903050 (March 3, 2022)  
responding submission within three weeks of the date of the disclosure. The cover letter  
pursuant to which this disclosure was made was dated December 20, 2021 and set a  
submission deadline of January 10, 2022. The letter also stated:  
If you require additional time to send in your submission, please submit your  
request in writing with reasons and the amount of time required before the  
deadline. Your request will be forwarded to the vice chair for consideration.  
[84]  
[85]  
[86]  
[87]  
The worker’s representative called WCAT on December 20, 2021 and requested that he be  
allowed an additional 14 days within which to provide his submission. I granted that request  
and, by further letter dated December 20, 2021, the deadline for submissions was extended to  
January 24, 2020.  
I do not find evidence that there has been a denial of procedural fairness in the post-disclosure  
submission process. The worker’s representative has extensive experience with WCAT’s  
processes. He did not request additional time to obtain further assistance from an expert  
witness and, instead, provided his final submission to WCAT on January 21, 2022.  
The worker’s representative also said the expense and resources required to obtain expert  
evidence and the lack of support in the appeal system for appellants to obtain relevant expert  
evidence made it impractical for him to obtain an expert evidence response to Dr. Leith’s  
opinion.  
As emphasized in Board policy, there is no burden of proof on a worker under the Act. Instead,  
the adjudicator has a responsibility to determine whether the available evidence is sufficiently  
complete and reliable to allow for a sound conclusion to be reached with confidence. In  
situations where there is insufficient evidence to allow the adjudicator to do this, the adjudicator  
is authorized to undertake further investigation. I cannot speak to the particular experience of  
the worker’s representative with WCAT in general. However, in exercising my jurisdiction, if the  
incompleteness of the evidence leads me to consider that additional medical evidence or  
clarification is required, I seek clarification from physicians who have provided opinion evidence  
on a claim or appeal, obtain missing medical records, exercise my authority to request further  
investigation by the Board relating to a matter at issue in an appeal, and retain independent  
health professionals to provide assistance. I do this pursuant to requests by workers as well  
requests by employers and on my own initiative. There is nothing in the Act or Board policy that  
limits me to considering only favourable evidence provided by one party or another to an  
appeal.  
[88]  
After reviewing the final submission of the worker’s representative, I considered whether to seek  
additional expert evidence.  
22  
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[89]  
[90]  
Section 302 of the Act (the authority pursuant to which Dr. Leith was retained) provides that, if  
WCAT determines that independent assistance or advice from a health professional would  
assist in reaching a decision on an appeal, the presiding member may retain such a health  
professional to provide such assistance or advice. This is a discretionary provision and grants  
an authority that I exercise in situations where I am not satisfied that the available evidence is  
sufficiently complete and reliable to allow me to reach a sound conclusion, with confidence, on a  
matter requiring medical expertise.  
Below, I have set out my reasons for disagreeing with the reasons the worker’s representative  
provided in support of his view that Dr. Leith’s opinion should be discounted. I acknowledge that  
the worker and her representative disagree with Dr. Leith’s opinion. However, the fact a party to  
an appeal is not persuaded by an opinion is not, alone, sufficient reason for WCAT to exercise  
its discretionary authority to obtain additional evidence.11 I am satisfied that the evidence now  
before me is sufficiently complete and reliable to allow me to reach a sound conclusion on the  
issue raised in this appeal, with confidence, and so I have not sought additional expert  
evidence.  
iii. Bias on My Part  
[91]  
[92]  
The nature of WCAT proceedings is described in item #9.1 of WCAT’s Manual of Rules of  
Practice and Procedure (MRPP). It states, in part, that WCAT proceedings are hybrid in nature,  
partly inquiry based and partly adversarial. While WCAT can reweigh existing evidence and  
receive new evidence, it is not limited by the evidence in the Board’s file and the evidence  
provided by the parties. If WCAT is not satisfied with the sufficiency and/or reliability of the  
evidence presented, it may inquire into the matter under appeal and consider all the information  
obtained.  
The submissions by worker’s representative suggest that I have demonstrated a bias against  
the worker. This is a serious allegation12 and one that, if founded, would require that I withdraw  
(that is, request the chair of WCAT to assign responsibility for adjudicating this appeal to a  
different vice chair). However, I am satisfied that the representative’s submissions regarding  
bias on my part is not founded. Rather, they do fully recognize the statutory scheme pursuant to  
which WCAT exercises its appellate jurisdiction, including its discretion to seek assistance from  
an independent health professional, an assessment of the persuasiveness of the evidence that  
was presented by the worker in support of the appeal that differs from mine, and a  
11  
See Sacky v. British Columbia (Workers’ Compensation Appeal Tribunal), 2017 BCSC 1541,  
paragraphs 16 to 17, and Erskine v. British Columbia (Workers’ Compensation Appeal Tribunal), 2013  
BCSC 1583, paragraph 22.  
As stated in Adams v. British Columbia (Worker's Compensation Board) (1989), 42 B.C.L.R. (2d) 228  
12  
(C.A.), an allegation of bias ought not to be made unless there is sufficient evidence to demonstrate  
that there is a sound basis for apprehending that a person who has been appointed to an  
administrative board would not bring an impartial mind to bear on the case. Suspicion is not enough.  
23  
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misunderstanding that WCAT hearings are “adversarial” and subject to the usual civil Court rule  
that the parties have a burden to prove or disprove their positions in appeals.  
[93]  
With regard to the allegation that I “opinion shopped,” I note first that I do not agree with the  
representative’s position that Dr. Leith, as an orthopaedic surgeon, was qualified to provide  
expert evidence regarding causation of “traumatic injuries” but not qualified to provide expert  
evidence regarding causation of “repetitive musculoskeletal injuries.”  
[94]  
[95]  
The term “musculoskeletal” is defined as: “of, relating to, or involving both musculature and  
skeleton”;13 “relating to the muscles and skeleton and including bones, joints, tendons, and  
muscles”;14 and, “of or relating to the skeleton and musculature taken together.”15  
In his December 13, 2021 report, Dr. Leith briefly summarized his qualifications as follows:  
He is an orthopedic surgeon, duly qualified with a license to practice in the specialty of  
orthopedic surgery in the province of British Columbia and further focused to a subspecialty  
orthopedic practice, primarily dedicated to disorders of the upper extremity, the hip, and the  
knee.  
He obtained his medical degree from the University of British Columbia in 1994 and, in  
1999, completed an orthopedic residency at the same university. He was certified in  
orthopedic surgery by the Royal College of Physicians and Surgeons of Canada that same  
year and, shortly thereafter, became a fellow of the Royal College.  
He completed a one-year fellowship in upper extremity surgery and sports medicine at the  
University of Washington.  
He currently practices with a subspecialty focus on shoulder, elbow, hip, and knee  
reconstruction and arthroscopic surgery and he is a clinical associate professor at the  
Department of Orthopedic Surgery at the University of British Columbia.  
He also has a Masters of Health Science in healthcare and epidemiology from the University  
of British Columbia, which he completed in 2004 while continuing his clinical practice. His  
master’s degree provides: expertise in the areas of design and evaluation of clinical trials;  
skill in probabilities and decision analysis; and, skills in the critical appraisal of research  
evidence and scientific literature.  
13  
Merriam Webster Dictionary (online).  
Cambridge Dictionary (online).  
Collins Dictionary (online).  
14  
15  
24  
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[96]  
[97]  
On its website,16 the Royal College of Physicians and Surgeons of Canada defines orthopedic  
surgery as the branch of surgery specializing in the study, diagnosis, and treatment of diseases  
and disorders affecting the musculoskeletal system.17  
I am satisfied that Dr. Leith had the necessary expertise and experience to provide the opinions  
I requested in my terms of reference, including the expertise and experience to provide opinions  
regarding the etiology (the cause, set of causes, or manner of causation) of musculoskeletal  
diseases and conditions and, because of the particular focus of his practice, had special  
expertise in the area of causation, diagnosis, and treatment of diseases and conditions affecting  
the shoulder. Thus, while it may equally have been open to me to seek assistance from an  
occupational medicine specialist, I am not persuaded that I was obliged to do so or that the fact  
that I did not supports that I “opinion shopped.”  
[98]  
[99]  
With regard to the suggestion that I left “no stone unturned for the potential to reach an adverse  
decision” on the worker’s appeal, I note that I made a single request for the opinion of an  
independent health professional. I did not seek out multiple opinions and select one that  
supported a particular result, nor did I frame my terms of reference with a view to obtaining  
anything other than an objective and neutral assessment of the worker’s case.  
The independent health professionals who can provide assistance to WCAT panels are  
identified in a list of such professionals that is maintained by the chair of WCAT pursuant to  
section 301(1) of the Act. Section 301(2) of the Act provides that this list cannot include any  
person employed by the Board. As a matter of practice, the listed independent health  
professionals who have treated a worker are excluded from providing independent assistance to  
WCAT. This ensures that the independent health professionals available to be retained by  
WCAT do not have a relationship with the Board or the worker that might impede their ability to  
provided objective and unbiased opinions regarding matters within their medical expertise, and  
is consistent with the requirement that WCAT, as an appellate body, decide every appeal based  
on the merits and justice of the particular case.  
[100] In addition to the requirement that I decide every appeal based on the merits and justice of the  
individual case, my responsibilities as an adjudicator include a requirement that I exercise my  
duties and responsibilities in a neutral, impartial manner. The oath of office I took upon  
appointment as a vice chair of WCAT confirms my commitment to fulfilling these requirements.  
[101] I do not find that the fact that I requested the assistance of a duly qualified professional who is  
on the list of specialists the chair maintains pursuant to section 301 of the Act gives rise to  
actual bias or a reasonable apprehension of bias. Rather, I requested Dr. Leith’s opinion  
because I was satisfied that additional medical evidence from an expert was required to assist  
16  
https://www.royalcollege.ca.  
“Orthopedic Surgery Competencies” (2020).  
17  
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me in weighing the conflicting medical opinions regarding diagnosis and causation that were  
provided by Dr. Karrel and Dr. Gallagher.  
[102] In his final written submission, the worker’s representative acknowledged that the opinion of an  
independent health professional may be appropriate where there is some issue that is  
unanswered by the medical evidence and it would be of assistance to have expert evidence on  
that question. However:  
It appears to us that there was no expert evidence matter that was left  
unanswered. It appears that the IHP [independent health professional opinion]  
may have been sought out of a desire to obtain other evidence that could support  
a different conclusion than what would be supported [by the evidence] that was  
already before the appeal [tribunal]. The questions put to Dr. Leith in the IHP  
[independent health professional] terms of reference are not substantially  
different from any matter that had already been addressed by the evidence for  
this appeal.  
[103] I do not agree. In particular, there was a clear disagreement between Dr. Karrel and  
Dr. Gallagher about both diagnosis and causation of the worker’s shoulder condition. Moreover,  
on their face, neither opinion was based on a wholly accurate understanding of the facts and  
neither Dr. Karrel nor Dr. Gallagher were able to review the full medical record that is now  
available as a result of the evidence WCAT obtained after the hearing. As such, neither opinion  
was sufficiently complete and reliable to allow me to reach conclusions regarding diagnosis and  
causation, with confidence. Also, there was no other reasoned medical evidence addressing  
these matters.  
[104] In particular:  
Dr. Karrel based his opinion on the misunderstanding that the worker was accustomed to  
her work duties and did not take into account the fact that the worker had increased her  
work hours at the employer at a time that is consistent with her increasing left shoulder  
symptoms.  
Dr. Gallagher based his opinion on the misunderstanding that, prior to December 2017, the  
worker had no symptoms in her left shoulder, whereas the evidence confirms that she did  
have such symptoms.  
26  
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Dr. Karrel based his opinion on an uncharacteristically brief worksite evaluation and on  
video evidence of 2 minutes and 23 seconds duration.18  
Dr. Gallagher did not appear to have reviewed any video evidence.19  
Dr. Gallagher accepted Mr. Everett’s conclusion that there were there were multiple  
plausible biomedical mechanisms for stressing of the worker’s tendons/tissues to occur  
without providing any explanation of what these specific mechanisms were and which of  
them were capable of stressing the tissues involved in the worker’s left shoulder condition or  
how those particular factors were capable of causing injury to those tendons and tissues.  
[105] This last consideration was particularly important to my decision to seek Dr. Leith’s assistance,  
given that the testing methodology used by Mr. Everett has been the subject of critical  
assessment in a number of prior WCAT decisions. In these decisions, some of which I have  
further discussed below, the WCAT panels concluded that Mr. Everett’s testing methodology did  
not reliably identify risk factors that were relevant to a variety of ASTDs.  
[106] In some of those appeals,20 the panels found that the evidence other than Mr. Everett’s opinion  
was sufficiently reliable and complete to allow them to reach a sound conclusion in the appeal  
without the assistance of an independent health professional. However, in other appeals, the  
panels concluded that, in the face of conflicting medical opinion evidence, the assistance of an  
independent health professional or of some other qualified medical practitioner was required to  
address whether the specific risk factors identified by Mr. Everett were, in fact, capable of  
stressing the tissues in a way that could have been of causative significance to the particular  
ASTD in issue in the appeal.21  
[107] It goes without saying that it would have been improper for me to rely on the medical evidence  
summarized in these prior appellate decisions, given the requirement noted above that I decide  
18  
My experience is consistent with the experience of the worker’s representative. ASTD worksite  
evaluations by Board officers normally provide a far more comprehensive report of findings than was  
provided in this case and, normally, also include more extensive video evidence that can be  
independently reviewed by a Board medical advisor.  
19  
I note that the video evidence taken by Mr. Everett was not included with the copy of his February 10,  
2020 report, as corrected on March 23, 2020, that was received by WCAT. In order to make that  
evidence available to Dr. Leith, WCAT obtained it after the hearing through the worker’s  
representative, who had to obtain it directly from Mr. Everett. As Dr. Gallagher did not indicate that he  
reviewed the video evidence taken by either the case manager or Mr. Everett, and this evidence was  
not referred to in the retainer letter the worker’s representative sent to Dr. Gallagher, it appeared that it  
was not available to him.  
20  
For example, WCAT Decision A1800391 (dated June 27, 2019), where the worker’s appeal was  
denied and WCAT Decision A1802932 (dated March 21, 2019), where the worker’s appeal was  
allowed notwithstanding the panel’s concerns about the validity of Mr. Everett’s testing methodology.  
These include WCAT Decision A1701289 (dated September 24, 2019).  
21  
27  
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each appeal assigned to me on the basis of the merits and justice of the particular appeal.  
However, in this case, most of the risk factors identified by Mr. Everett involved the worker’s left  
upper trapezius muscle, scapular movement, and tissues in anatomical areas (the neck,  
thoracic spine, and lumbar vertebra) that have no obvious connection to the tissues of the left  
shoulder and that have not been identified as relevant to an ASTD in that joint in either  
Schedule 1 of the Act or in Board policy. In the absence of a medical explanation by  
Dr. Gallagher for his view that these risk factors were of causative significance to the worker’s  
left shoulder condition, I am satisfied it was appropriate to seek to resolve the conflict between  
the opinions of Dr. Karrel and Gallagher by obtaining the opinion of an independent health  
professional that was based on a review of all of the evidence, including the additional medical  
evidence I obtained after the hearing and that was not available to either Dr. Karrel or  
Dr. Gallagher.  
[108] I also note that, in his final submission, the worker’s representative said that, through her  
testimony and the reports from Dr. Gallagher and Mr. Everett, the worker “met her obligation  
under an adversarial system to prove with a reasonable degree of confidence” that the  
assessment of work-related risk factors by the case manager and Dr. Karrel’s opinion were  
unreliable. However, as set out above, WCAT hearings are only partly adversarial. As further  
explained in item #9.1 of the MRPP, unlike in court proceedings, WCAT is not limited by the  
evidence in the Board’s file and the evidence provided by the parties:  
If WCAT is not satisfied with the sufficiency and/or reliability of the evidence  
presented, WCAT has the authority to inquire into the matter under appeal and  
consider all information obtained [s. 297(2)(a)]. While WCAT has inquiry power,  
and the discretion to seek further evidence, it is not obliged to do so. The  
question as to whether the evidence is sufficiently complete and reliable to arrive  
at a sound conclusion with confidence is one which rests with the panel. It is not  
WCAT’s responsibility to evaluate the appeal and then notify parties of the  
weaknesses in the case for the purpose of obtaining further evidence.  
[109] Item #1.5.3.2 of the MRPP states that the impartiality of the decision-maker is presumed and  
the onus of proof is borne by the party who is asserting bias or a reasonable apprehension of  
bias.22  
[110] In the current appeal, I am not persuaded that an informed, reasonable, and right-minded  
person, viewing the matter realistically and practically, and having thought the matter through,  
would conclude that it was more likely than not that the fact that I requested and obtained  
assistance from an independent health professional who is an orthopedic surgeon with special  
22  
This is consistent with court decisions on the subject, including the decision of the Supreme Court of  
Canada in Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259 and, specific to WCAT, in  
Mitchell v. Workers’ Compensation Appeal Tribunal, 2012 BCSC 986, at paragraph 67.  
28  
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expertise in diseases and conditions of the shoulder, means, whether consciously or  
unconsciously, that I would not decide the appeal fairly.23  
[111] I conclude that the allegation that I demonstrated bias by obtaining the assistance of the  
independent health professional Dr. Leith is not supported in the circumstances of the current  
appeal.  
iv. Impartiality on the Part of Dr. Leith  
[112] Although the worker’s representative did not specifically challenge Dr. Leith’s neutrality in the  
submissions he provided to WCAT, it is apparent from the worker’s post-hearing statements that  
she believes Dr. Leith may not have brought an open mind to her case.  
[113] However, I do not find that, in the current appeal, there is evidence to support that Dr. Leith  
brought anything other than an open and impartial mind to my request for his assistance.  
Contrary to the worker’s apparent understanding, the delays in the appeal process did not result  
from an active search on my part for “someone to disclaim” her and agree with assumptions I  
had made about the claim. Rather, I made a single request for independent assessment of the  
matters of diagnosis and causation by Dr. Leith. That request was not based on assumptions  
but, instead, was based on findings of fact I made after comprehensively reviewing and  
weighing all of the evidence. As demonstrated by the content of the terms of reference I  
prepared, I left it entirely to Dr. Leith to offer an opinion in his area of medical expertise that  
clarified the existing opinions on file and provided reasons for disagreeing or agreeing with  
those opinions. I am satisfied that the opinion Dr. Leith provided, as a properly qualified and  
retained independent health professional, represents his independent opinion about those  
matters.  
[114] Based on the post-hearing evidence from the worker, it appears that Dr. Leith announced his  
preliminary opinion to the worker during the course of his examination. While this may have  
amounted to a lapse in tact, I am not persuaded that it demonstrates a lack of partiality.  
Dr. Leith answered the questions I put to him and he provided reasons for those answers. He  
provided an opinion that is within his personal area of specialized expertise and the evidence  
does not support that he had any interest or possible motivation for providing anything other  
than an expert medical opinion that was based on his understanding of the facts of the worker’s  
situation and by applying his specialized knowledge about the relevant scientific and medical  
principles. The fact that Dr. Leith’s opinion does not support the worker’s position in the appeal  
does not persuade me that his opinion was less than impartial.  
23  
This is the test for bias, including for a reasonable apprehension of bias, which has been established in  
numerous court decisions, including the Wewaykum Indian Band decision referenced in the previous  
footnote.  
29  
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[115] I conclude that the worker’s apparent belief that Dr. Leith based his opinion on factors other  
than the application of his medical expertise to the facts of her particular circumstances is based  
on speculation and is not supported by the evidence.  
Scope of the Appeal  
[116] Section 134 of the Act provides that compensation will be paid to a worker who develops a  
personal injury (including an aggravation of a pre-existing condition) arising out of and in the  
course of the worker’s employment.  
[117] In this case, the case manager concluded that the worker was not entitled to compensation for a  
personal injury. The worker denied any history of an acute traumatic incident at work or away  
from work and could not recall or identify any particular event or incident where she sustained  
an injury to her left arm or shoulder. Instead, she noted that her left shoulder just gradually  
started hurting after she started working only at the hospital in December 2017/January 2018  
and she felt discomfort at work that worsened and progressed over time.  
[118] The review officer also concluded that the worker was not entitled to compensation for a  
personal injury to her left shoulder under this provision as neither she nor the medical evidence  
related the worker’s left shoulder conditions to any particular incident or trauma, or series of  
incidents or traumas. The review officer acknowledged that Dr. Arneja had provided a diagnosis  
of a “traumatic” left rotator cuff rupture in the November 15, 2018 consultation report, but noted  
that Dr. Arneja did not report any evidence of a specific incident or traumatic event. Based on  
the evidence, the review officer found that the worker’s left shoulder condition which, at that time  
had been variously diagnosed as rotator cuff syndrome, supraspinatus full-thickness tendon  
tear, infraspinatus partial-thickness tendon tear, subacromial bursitis, AC joint osteoarthritis, and  
possible subacromial impingement, did not constitute a personal injury within the meaning of  
policy item C3-12.00.24  
[119] At the commencement of the oral hearing, the worker’s representative advised that he was not  
challenging the decision that the worker is not entitled to compensation under section 134 of the  
Act. Therefore, I have not addressed this issue further.  
[120] The Act also provides for compensation to be paid where a worker develops an occupational  
disease that is due to the nature of the worker’s employment.  
24  
This policy defines “personal injury” as any physiological change resulting from some cause. It may  
result from a specific incident, or a series of incidents occurring over a period of time. It is not confined  
to injuries which are readily and objectively verifiable by their outward signs.  
30  
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WCAT Decision Number:  
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[121] Section 137 of the Act establishes a rebuttable presumption of causation for certain identified  
occupational diseases where, on or immediately before the date of disablement, the worker was  
employed in a particular process or industry (as set out in Schedule 1 of the Act).  
[122] Both the case manager and the review officer concluded that the presumption in section 137 of  
the Act does not apply and, at the commencement of the hearing, the worker’s representative  
advised that he did not think that the presumption applied. Therefore, I have also not addressed  
this issue further.  
Is the worker’s left shoulder condition an occupational disease that is due to the nature of her  
employment?  
[123] For claims to which the rebuttable presumption in section 137 does not apply, the process  
identified in the presumption may still provide some guidance on the type of risk that is relevant,  
but the Board determines on the evidence whether the condition was due to the nature of the  
employment under section 136(1) of the Act, having regard to the applicable policies in  
Chapter 4 of the RSCM II.  
[124] The compensability of a particular ASTD depends on whether or not the employment activities  
(the employment-related exposure to risk factors) were of causative significance in producing  
the ASTD. This will require consideration of whether, having regard to dose, frequency, and  
duration, the worker was exposed to sufficient risk factors (including awkward posture, force,  
and repetition) to warrant a conclusion that the employment-related exposure was more than a  
trivial or insignificant aspect of the disease. The employment-related exposure need not be the  
sole or even the predominant cause; it simply needs to have been of causative significance (that  
is, more than a trivial or insignificant aspect).  
[125] The same requirement that the work has been of causative significance must be met in  
situations where a worker suffers from a disability that results from the natural aging process  
(policy item C4-25.20(C)(i) Natural Degeneration of the Body), or where the worker has a  
pre-existing disease that may have been aggravated by work (policy item C4-25.20(C)(ii) –  
Aggravation of a Disease).  
[126] As an initial consideration, I note that the medical evidence identifies a number of potential  
diagnoses for the worker’s left shoulder condition. However, I find the diagnoses provided by  
Dr. Arneja and Dr. Leith are, more likely than not, the most accurate diagnoses for the pathology  
in her left shoulder. As noted in policy item #97.34, the fact that one doctor or another has  
particular qualifications is not, by itself, a reason to prefer one opinion over another. However,  
both Dr. Arneja and Dr. Leith are orthopaedic surgeons and, as such, have particular expertise  
in the study, diagnosis, and treatment of diseases and disorders affecting the musculoskeletal  
system. Their opinions as to the appropriate diagnosis of the conditions in the worker’s left  
shoulder were based on a review of the medical evidence and on direct examination of the  
31  
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WCAT Decision Number:  
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worker, and both reached the same conclusion as to diagnosis, although their opinions do  
identify different etiologies for the first of these diagnoses.  
[127] As noted above, Dr. Arneja said that the worker had two main problems in her left shoulder. The  
first was a full-thickness supraspinatus tear. Dr. Leith confirmed that the imaging reported a  
rotator cuff tear. I accept that the worker has such a tear.  
[128] Second, Dr. Arneja identified the more pressing problem in the worker’s shoulder to be  
arthrofibrosis that the worker had developed over the past several months. This had resulted in  
a reduction in range of motion in the shoulder that needed to be corrected through exercise  
before the worker could undergo surgical repair of the other condition, the tear. I understand  
arthrofibrosis condition to be synonymous with frozen shoulder, which is what Dr. Leith also  
diagnosed as the worker’s primary problem, as did Dr. Karrel.  
[129] As indicated in the findings of fact I set out in the terms of reference I provided to Dr. Leith, I  
have concluded that, starting in December 2017, which is contemporaneous to the worker’s  
return to working as a psychiatric nurse, the worker developed a burning pain in her left  
shoulder that progressively worsened and, ultimately, led to development of a frozen shoulder.  
There was clearly a temporal connection between the onset of the worker’s left shoulder  
symptoms and her resumption of the computer work associated with her position as a  
psychiatric nurse. However, this temporal connection is not, alone, sufficient to support a finding  
that the nature of the worker’s employment as a psychiatric nurse involved exposure to risk  
factors that were of causative significance to the onset or an aggravation of the rotator cuff  
pathology in her left shoulder or of her frozen shoulder. Rather, in order to accept the worker’s  
claim under section 136 of the Act, the evidence must be at least evenly weighted in favour of  
and against a conclusion that the worker’s employment-related exposure was of causative  
significance to development of one of these diagnosed conditions.  
[130] I conclude that there is insufficient positive, reliable evidence to support that the work exposures  
were more than a trivial or insignificant aspect of the worker’s left shoulder conditions.  
[131] Shoulder tendinopathy and shoulder bursitis (inflammation of the subacromial or subdeltoid  
bursa) are occupational diseases to which this rebuttable presumption applies when, in the  
worker’s employment, there is frequently repeated or sustained abduction or flexion of the  
shoulder joint greater than 60 degrees and where such activity represents a significant  
component of the employment. Policy item C4-27.20(B) provides guidance in the application of  
this presumption.  
[132] Given the opinions of Dr. Arneja and Dr. Leith, I am not persuaded that the diagnosis of  
shoulder tendinopathy or the diagnosis of shoulder bursitis accurately describes the condition in  
the worker’s left shoulder. Nevertheless, the threshold exposures identified in Schedule 1 do  
provide guidance regarding work activities that are likely to be injurious in nature.  
32  
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[133] Having considered the guidance in policy item C4-27.20(B) and all of the evidence, including  
that from Mr. Everett and the ergonomic consultant, I conclude that the worker’s activities at  
work did not involve frequently repeated or sustained abduction or flexion of the shoulder joint  
greater than 60 degrees and that such movement was not a significant component of her  
employment.  
[134] In adjudicating claims for compensation for ASTD claims in circumstances where the threshold  
work exposures set out in Schedule 1 of the Act are not present, exposure to risk factors that  
are below the threshold or that are different than those identified in the Schedule may be  
sufficient to support acceptance of the claim. However, the question of whether the worker’s  
work duties were capable of stressing the tissues of her left shoulder and thereby contributing to  
development or progression of her rotator cuff pathology or frozen shoulder is essentially a  
medical question. Therefore, I have considered the conflicting medical opinions that address  
this matter, keeping in mind the guidance in policy item #97.34.  
[135] Dr. Gallagher’s opinion that work contributed to such a progression is primarily based on the  
content of the ergonomic consultant’s report and of Mr. Everett’s report.  
[136] Although the worker’s representative took the position that the ergonomic consultant’s report  
identified that the worker’s work activities presented risk factors relevant to the development of a  
left shoulder ASTD and Dr. Gallagher shared that view, I note that the consultant did not  
specifically address whether the ergonomic deficiencies she identified in the workplace had any  
impact or relevance to the worker’s left shoulder condition.  
[137] I do not agree with Dr. Gallagher’s view that the ergonomic consultant’s report gave a more  
complete picture of the reasons the worker developed shoulder pathology than did the Board  
officer and Dr. Karrel. The consultant merely commented generally that the ergonomic  
deficiencies at nurses’ workstation No. 2 and lack of castors on the workstation chairs were  
such that workers had to accommodate with awkward static postures of various body parts,  
including the shoulder. The consultant did not specify what these postures were and she did not  
otherwise identify what they were by, for example, taking pictures or video evidence.  
[138] I am also not persuaded by Dr. Gallagher’s view that Mr. Everett’s report shows that it is more  
likely than not that the worker sustained a rotator cuff injury at work that eventually led to a  
frozen shoulder due to her work activities.  
[139] Dr. Gallagher’s April 26, 2020 opinion was that there was a “sudden increase” in the pain the  
worker experienced one month prior to August 1, 2018 fit, with a possible progressive tear, in  
and around July 2018.  
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[140] Dr. Gallagher based his opinion on the understanding that the worker experienced a “sudden  
increase” in pain in the month prior to August 1, 2018. However, this understanding is not  
supported by the evidence. Rather, as set out above, in the August 1, 2018 chart note,  
Dr. MacDonald documented that the worker’s pain was progressively getting worse in  
December 2017 and had been really bad in the past month, but there was no history of injury.  
Additionally, as noted above, Dr. Gallagher believed that the onset of the worker’s left shoulder  
symptoms was contemporaneous to her return to work as a psychiatric nurse in December 2017  
and he did not consider that, prior to that date, she had active left shoulder pathology.  
[141] In contrast, Dr. Leith said that the rotator cuff tear identified in the MRI was an incidental finding  
that was not caused by the worker’s work activities. Dr. Leith properly understood that the  
worker did not experience an acute increase of pain, which he said would be expected with an  
acute traumatic tear of the rotator cuff tendons.  
[142] I do not find Dr. Gallagher’s opinion that the worker experienced a sudden traumatic rotator cuff  
arising out of and in the course of her employment about one month prior to August 1, 2018  
persuasive. Consequently, I am also not persuaded by his view that the worker’s work activities  
contributed to a progression of the rotator cuff pathology identified in the imaging.  
[143] I prefer and accept Dr. Leith’s opinion.  
[144] I acknowledge that Mr. Everett provided the opinion that the worker was exposed to significant  
occupational risks over a prolonged period that, alone and/or in combination, more likely than  
not, contributed to a marked increased risk to musculoskeletal structures of the left (and right)  
shoulder, scapulae and cervical, thoracic and lumbar vertebra.  
[145] Mr. Everett is qualified as an occupational therapist and, therefore, has competence to assess  
occupational performance and modification of human and environmental conditions to maintain,  
restore, or enhance occupational performance and health.25 However, he is not qualified as a  
medical doctor and so his opinion regarding causation of the worker’s left shoulder condition is  
beyond the scope of his expertise and does not constitute expert evidence on that matter.  
[146] I do accept that Mr. Everett’s expertise as an occupational therapist includes the ability to  
assess what movements of particular anatomical structures might be involved in particular  
activities. I also accept that, as the worker advised during the oral hearing Mr. Everett looked at  
all of the workstations she used and took measurements, both of the way that her muscles were  
reacting and of the physical setup of the workstations, that he explained everything to her, and  
that his assessment was like night and day in comparison to the case manager’s assessment.  
However, the evidential value of the findings he set out in his February 20, 2020 ergonomic  
assessment report (as amended) is dependent on whether his observations and testing  
25  
Occupational Therapists Regulation, B.C. Reg 286/2008, section 5 (Scope of Practice).  
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methodology reliably identify and quantify risk factors that are relevant to the development of left  
rotator cuff pathology or a frozen shoulder.  
[147] I did not find Mr. Everett’s report particularly helpful in identifying what risk factors were present  
and relevant to these conditions.  
[148] First, I note that Mr. Everett placed considerable reliance on the findings he derived through use  
of sEMG to measure electrical activity in the worker’s left and right (upper and middle) trapezius  
muscles. However, I share the concern that has been expressed by number of prior WCAT vice  
chairs that Mr. Everett’s dependence on this sort of evidence has resulted in unreliable  
conclusions.  
[149] Prior WCAT decisions are not binding, but they are useful for adjudicative guidance. The prior  
decisions I am referring to include WCAT Decision A1800391 (June 27, 2019), where the panel  
wrote as follows:  
[65] Other panels, such as the panel in WCAT A1801184, have expressed  
hesitancy about such as the helpfulness of sEMG data.  
[66] In WCAT-2013-02756, the panel requested an Independent Health  
Professional’s (IHP) comment on Mr. Everett’s methods and the use of  
sEMG assessments. The IHP concluded that using electromyography to  
detect muscle motor unit activation was not yet a reliable method of directly  
measuring the stress or load on muscles, and it was not possible to make a  
definitive clinical judgment about ergonomic stressors using that  
methodology. Though the medical opinion was offered in that particular  
case, and is not a basis to draw conclusions in the worker’s case, it is  
notable that Mr. Everett continues to rely on research articles that well  
pre-dating the 2013 WCAT decision to support his use of sEMG and has  
not addressed in his current report the problems identified by the IHP in  
WCAT-2013-02756.  
[67] The panel in WCAT A1802932 noted Mr. Everett had justified his use of a  
sEMG as a means of measuring movement and muscle activity, by quoting  
out of context a journal article entitled, Normalization of surface EMG  
amplitude from the upper trapezius muscle in ergonomic studies ‒ A review  
(Journal of Electromyography and Kinesiology. Vol. 5 No. 4 pp.197-226.  
1995 Mathiassen E., et al.). The panel noted on closer reading the article  
indicated that the use of sEMG data might be justified to study the effects of  
short-term interventions but a sEMG from a specific muscle is influenced by  
conditions that differ systematically between individuals and therefore  
comparisons between groups and/or days is of limited validity. The panel in  
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WCAT A1802932 noted that Mr. Everett had not commented on the  
limitations in translating sEMG measurements into biomechanical variables  
in his report.  
[150] In the February 20, 2020 report that Mr. Everett prepared for the worker in this appeal, he cited  
this same article in support of his use of a sEMG. However, he did not address the limitations of  
application described in the article and identified by the panel in WCAT Decision A1802932 and  
again by the panel in WCAT Decision A1800391. Further, he did not address the additional  
concerns identified by the panel in WCAT Decision A1801644 (April 29, 2019),26 where, as here,  
Mr. Everett relied on the same article to support that “Surface electromyographic (EMG)  
amplitude from the upper trapezius muscle is widely used as a measure of shoulder-neck load  
in ergonomic studies.” As noted by the panel in WCAT Decision A1801644,  
[80] This quotation is actually the first sentence in the summary or abstract for  
the Mathiassen article. The paragraph goes on to describe the article, the  
focus of which is a review of methods for normalizing EMG amplitude. The  
abstract finishes with this statement:  
It is concluded that translations of EMGamput into  
biomechanical variables, for example relative force  
development in the shoulder or in the upper trapezius itself,  
suffer from low validity, especially if used in work tasks  
involving large and/or fast arm movements. The review  
proposed a standard terminology relating to normalization of  
EMGamput and concludes in a concrete suggestion for a  
normalization procedure generating bioelectrical variables  
which reflect upper trapezius activation.  
[151] I agree with the panel’s conclusion in WCAT Decision A1801644 that the sentence quoted by  
Mr. Everett makes sEMG appear more valid than the conclusions in the Mathiassen article  
support, since that article discusses the lack of consensus among ergonomic studies regarding  
the normalization of upper trapezius raw sEMG data. As noted by the panel:  
[81] … The authors found that the ability to compare ergonomic data was  
therefore affected. The authors conclude with their hopes that the review  
will stimulate the use of proper normalization procedures and make a  
number of recommendations to that effect.  
26  
In this decision, the panel set out the full text of the article that supports the concerns identified the  
above in paragraph.  
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[152] As was the case in WCAT Decision A1801644, Mr. Everett presented sEMG testing as a  
definitive source of information regarding muscle recruitment. However, like the panel in that  
decision, I am not persuaded that the article cited confirms that it is a gold standard for such  
testing:  
[82] … In 1995, when the Mathiassen article was written, the field had many  
hurdles to overcome in order to be consistent in the interpretation of data  
across a broad spectrum of applications. The article indicates that raw  
SEMG data was best utilized when the same subject was tested, in a  
limited time frame, to assess the impact on the trapezius muscles to  
changes to a work pattern or station. That is not the application in which  
Mr. Everett was using the testing. Even if Mr. Everett is utilizing an  
acceptable standard or method to normalize his raw data, he is referencing  
an article that is nearly 25 years old and which concludes that much work  
needs to be done in the field if the testing was to have a wide-ranging  
application.  
[153] As was the case in WCAT Decision A1801664, Mr. Everett also stated in his report that, “In  
recent years, it has become increasingly evident that direct recordings of mechanical exposure  
are superior to self-reports or observations as regards accuracy and resolution.” In WCAT  
Decision A1801664, the panel noted that abstract to the article cited27 to support this statement  
states, in summary, that the authors considered the statistical application of ergonomic  
intervention studies using EMG results from the upper trapezius muscle. The abstract  
concludes:  
The present results in combination with an overview of other occupational studies  
showed that common-size investigations using trapezius EMG percentiles are at  
great risk of suffering from insufficient statistical power, even if the expected  
intervention effect is substantial. The paper suggests a procedure of how to  
retrieve and use exposure variability information as an aid when studies are  
planned, and how to allocate measurements efficiently.  
[154] In the article itself, the authors discuss in some depth the difficulty with interpreting EMG results  
due to high levels of variability between test subjects and the authors conclude:  
The present paper shows that intervention studies using upper trapezius EMG  
amplitude percentiles are at a high risk of having low statistical power. Study  
27  
Statistical power and measurement allocation in ergonomic intervention studies assessing upper  
trapezius EMG amplitude. A case study of assembly work. Journal of Electromyography and  
Kinesiology 12 (2002) 45-57. Svend Erik Mathiassen et al.  
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populations in excess of what is usually considered feasible are needed to detect  
EMG changes of a magnitude which is common in industrial contexts.  
[155] Like the panel in WCAT Decision A1801664, I understand the 2002 Mathiassen article to be  
stating that it is difficult to rely on EMG or sEMG results using the trapezius, as a large study  
group is required in order to provide reliable statistical information, due to the variability in  
results by the same individuals on different days, and among individuals in the same  
occupation; as in the prior article, the authors recommend ways to standardize the raw data and  
produce reliable results, including larger sample sizes and repeat testing of the subjects.  
[156] The panel in WCAT Decision A1801664 was left with the impression that the quote cited by  
Mr. Everett regarding the use of sEMG testing as superior to visual observation is utilized out of  
context, and the authors of the report are in fact highlighting the difficulties in interpreting the  
data from sEMG testing of the trapezius. I agree with the panel’s conclusion that,  
[87] While there is no dispute that objective data and information is more  
reliable and beneficial, in my view the authors highlighted the lack of  
statistical significance in this data. Therefore, I conclude that SEMG it is  
not, in fact, a gold standard for ergonomic assessment purposes.  
[157] Although Mr. Everett conducted three hours of sEMG testing, it is unclear what method of  
standardization Mr. Everett employed with the data he collected, particularly given his data is  
applicable to one worker, in one unique situation. The studies he has cited indicate testing  
provides reliable data when changes are made to a workstation and the subject is retested  
immediately afterwards. Otherwise, the data is to be interpreted with caution as it is difficult to  
produce statistically relevant samples because of the variability of results. Like the panel in  
WCAT Decision A1801664 and in the other decisions noted above, I find that any test results  
from this worker’s sEMG data must be viewed with significant caution.  
[158] I note that the reliability of using sEMG testing and the particular articles cited by Mr. Everett  
was also previously discussed in WCAT-2013-02756 (October 3, 2013). Again, while prior  
WCAT decisions are not binding, this decision is of note given the position of the worker’s  
representative that I should have retained an occupational medicine specialist rather than an  
orthopedic surgeon to provide the independent medical opinion in the current appeal. In that  
appeal, which addressed the compensability of a left shoulder tendonitis, the panel obtained the  
assistance of Dr. Hamm, occupational medicine specialist, to provide independent advice and  
assistance. The questions the panel put to Dr. Hamm included whether the sEMG method used  
by Mr. Everett is a reliable method for measuring stress or load on muscles and whether the  
measurements Mr. Everett obtained by placing the electrodes used in his assessment on the  
upper trapezius muscle of the worker was a reliable method for measuring load on the  
musculoskeletal structures of the shoulder. In WCAT-2013-02756, the panel reported that  
Dr. Hamm concluded electromyography is not yet a reliable method of directly measuring the  
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stress or load on supraspinatus tendon and one cannot make a definitive clinical judgment  
about ergonomic stressors using that methodology.28  
[159] In the current appeal, I am not persuaded that the repetitive motions and muscle activations  
Mr. Everett identified through use of his sEMG methodology was useful for the purpose of  
identifying risk factors related to a left shoulder rotator cuff injury or a left frozen shoulder.  
Rather, I share the view of the panel in WCAT Decision A1801644, which considered a report  
from Mr. Everett that included the same justification, based on the same literature, as that  
provided in the report filed in the current appeal, that weight should not be placed on  
Mr. Everett’s sEMG testing result and conclusions:  
[76] It is common knowledge that the trapezius serves to lift the shoulder up and  
down, but does not raise the arm, that is done by the muscles of the rotator  
cuff. The muscles that move the shoulder are the deltoid, infraspinatus,  
triceps brachii, pectoralis major, pectoralis minor, teres major, biceps  
brachii, latissimus dorsi, subscapularis, and supraspinatus. The  
supraspinatus, infraspinatus, teres minor, and subscapularis make up the  
rotator cuff, which stabilizes the shoulder and holds the head of the  
humerus bone into the glenoid cavity to maintain the joint.[2] The trapezius  
is adjacent to this group of muscles, but does not play a role in moving the  
arm above the shoulder, or above 60 degrees, which results in an overhead  
reach position. The trapezius muscle is responsible for stabilizing and  
moving the scapula. It is not part of the rotator cuff.[3] I therefore question  
the utility of these results, and Mr. Everett does not explain how, other than  
through proximity, testing of the trapezius can be applied to the rotator cuff  
muscle complex.29  
[160] I have also considered the specific anatomical positioning that Mr. Everett identified as risk  
factors that are relevant to development of the worker’s left shoulder position. The extent to  
which his sEMG findings were relevant to identification of these positions is not entirely clear.  
28  
A substantial body of expert medical evidence representing a range of specialties has been  
submitted to WCAT questioning the accuracy, reliability, and relevance of sEMG testing. Although this  
is not evidence that I can treat as decisive in the worker’s particular circumstances, the similarities  
between the reports from Mr. Everett that were at issue in those WCAT appeals and the consistencies  
between the critical commentaries does add support to my decision not to seek additional evidence to  
address the post-hearing concerns raised by the worker’s representative about the sufficiency of the  
available evidence. See: WCAT 2013-02405 (designated as noteworthy), WCAT-2013-03368,  
WCAT-2014-00342, WCAT-2015-03446, WCAT Decision A1601385, WCAT Decision A1601809, and  
WCAT Decision A1603217.  
29  
Footnote 2 in this quotation reads as follows: https://www.healthline.com/human-body-maps/shoulder-  
muscles; footnote 3 in this quotation reads as follows:  
https://www.ncbi.nlm.nih.gov/books/NBK518994/.  
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However, it is apparent that he relied on these findings in all instances where he identified  
intramuscular pressure and muscle contractions as a contributing factor to the particular risk  
factor he identified. For the above reasons, I am not persuaded that use of the sEMG  
methodology is helpful for the purpose of identifying risk factors relevant to the worker’s left  
shoulder condition.  
[161] In addition to relying on the sEMG findings, Mr. Everett also relied on physical observations and  
measurements that included the position of the worker’s scapula, neck, and thoracic spine to  
support his conclusions regarding the worker’s exposure to risk factors relevant to development  
of an ASTD of the shoulder (although, as noted, he considers observations to be less reliable  
than the sEMG testing he undertook).  
[162] As set out above, this was based on his understanding that awkward cervical and thoracic spine  
postures and awkward scapular postures narrow the subacromial space between humeral head  
and overlying skeletal structures (that is, the acromion process) and increase propensity for  
supraspinatus impingement. By way of further explanation for his view that the position of the  
scapula (over which the trapezius muscle is located) was a significant relevant factor, he  
included the explanation that the rotator cuff muscles (supraspinatus, infraspinatus,  
subscapularis, and teres minor) originate at the scapula, insert in the humerus, and cross the  
glenohumeral or shoulder joint (including the glenoid cavity which is part of the scapula).  
[163] Mr. Everett cited several references to support the inference that the proximity of the scapula to  
the tissues in the shoulder and rotator cuff warrants finding that awkward scapular postures will  
have causative significance to development of ASTDs in the shoulder. However, I am not  
persuaded that the content of those references did so.  
[164] The first, “Thoracic position effect on shoulder range of motion, strength, and three-dimensional  
scapular kinematics,”30 supports that the position of the thoracic spine significantly affects  
scapular movement patterns, active range of motion in scapular plane abduction, and isometric  
scapular plane abduction muscle force. In summary, the authors’ study found that sitting in a  
slouched position significantly affects scapular kinematics31 and that slouched posture is also  
associated with decreased muscle force. Several of the photographs taken by Mr. Everett show  
the worker sitting in a slouched position. The article does not address whether assumption of a  
slouched position and the resulting position of the scapula can be of causative significance to  
development of an ASTD of the shoulder.  
30  
Arch Phys Med Rehabil 1999; 80: 945-50. Kebaetse M et al.  
Kinematics is a branch of physics and a subdivision of classical mechanics concerned with the  
31  
geometrically possible motion of a body or system of bodies without consideration of the forces  
involved.  
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[165] Mr. Everett also relied on the article “Intramuscular pressure in the supraspinatus muscle”32 to  
support that, while most of the left shoulder abduction (in the scapular plane) involved while the  
worker was working at nurses’ workstation No. 1 was below 60 degrees, abduction of as low as  
30 degrees has been associated with “supraspinatus intramuscular pressure increases that can  
lead to ischemia and localized muscle fatigue.” However, the abstract of the article confirms that  
the study merely demonstrated that intramuscular pressure offers important information about  
the load on the supraspinatus muscle in different positions of the arm. The results indicated that  
fatigue and shoulder pain related to elevated arm positions may be caused by muscle ischemia  
induced by the high intramuscular pressure present in these positions. The article does not  
address whether postures that are below the thresholds identified in Schedule 1 of the Act can  
be of causative significance to development of an ASTD of the shoulder.  
[166] In addition, he relied on the article “Subacromial space in adult patients with thoracic  
hyperkyphosis and in healthy volunteers”33 to support his view that the left scapular elevation he  
observed when the worker was typing/mousing at all workstations had the effect of reducing the  
“sub-acromial space” between the humeral head and bony overhead structures of such as the  
acromion, thereby increasing the propensity for impingement of muscle. However, the article is  
based on a study of the effect of hyperkyphosis (a spinal deformity causing a forward-curved  
posture of the upper back (thoracic spine)) on subacromial space. X-rays of patients with  
idiopathic or acquired thoracic hyperkyphosis and healthy patients showed that subacromial  
width in patients with hyperkyphosis whose curve was more than 50 degrees was significantly  
narrower than that measured in the females with less severe hyperkyphosis. The article does  
support that position of the scapula in individuals with severe hyperkyphosis plays a role in  
increasing the risk of subacromial decompression. However, it does not address whether  
scapular position in an individual who, like the worker, does not have severe hyperkyphosis  
increases the risk of subacromial decompression and, more importantly, it does not draw any  
connection between the presence of subacromial decompression and frozen shoulder or torn  
rotator cuff tendons.  
[167] Third, I note that, in addition to the references discussed above, Mr. Everett relied on an  
additional reference to support the same scientific propositions he offered in the prior report that  
was considered by the panel in WCAT Decision A1801644. Mr. Everett relied on the article,  
“Dichotomizing continuous predictors in Multiple Regression: a Bad Idea”34 by P. Royston to  
support the proposition that the worker was at risk for an ASTD of the shoulder despite  
demonstrating shoulder motions and positions at significantly less than 60 degrees and in the  
absence of repetition. I have reviewed the Royston article as well as the reasons in  
paragraphs 99 through 104 that the panel in WCAT Decision A1801644 provided for concluding  
32  
Journal of Orthopaedic Research, Volume 6, Issue 2, March 1988. Pages 230-238. Dr. Ulf Järvholm.  
Chir Org Mov. 2008 Feb;91(2):93-6. Gumina S et al.  
Mr. Everett provided the citation Statist Med. 2006; 25:I27-14, but the correct citation is Statistics in  
33  
34  
Medicine, 2006; 25:127-141.  
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that the article did not support Mr. Everett’s position in this regard. I agree with those reasons  
and so will not repeat them here.  
[168] A fourth concern I have about Mr. Everett’s report is that he supported his ultimate conclusion  
that the worker’s work activities were the likely cause of the worker’s left shoulder condition by  
relying on the presence of a number of risk factors that have no apparent relationship to the  
work activities the worker actually performed, including static loading35 of the worker’s left upper  
trapezius, or that involved stresses to anatomical structures that have no apparent physiological  
relationship to the worker’s left shoulder, including forward head posture due to the worker’s use  
of trifocal lenses that led to static loading of the worker’s neck muscles and awkward lumbar  
and pelvic posture at the unit clerk station.  
[169] Finally, I note that, in his report, Mr. Everett stated as follows:  
It is my analysis, based on the awkward, repetitive / sustained and forceful  
shoulder, cervical, thoracic lumbar and scapular postures at all workstations; up  
to 12 hours of work daily; and daily completion of 2 3 admissions / discharges  
(with each admission / discharge requiring 1.5 2.0 hours of data entry into the  
Electronic Medical Record (EMR), to the effect that this work represented a  
“significant component of employment” (Board Policy 27.12 Shoulder Bursitis /  
Shoulder Tendinopathy) thereby meeting risk threshold (above).36  
[170] In my view, this paragraph amounts to an improper adjudicative opinion that is clearly beyond  
the scope of Mr. Everett’s expertise (which I consider to be assessing what movements of  
particular anatomical structures might be involved in particular activities and the dose, duration,  
and frequency of such movements).  
[171] More importantly, however, it is directly contradicted by the express findings he sets out  
elsewhere in the report, including that the worker did not meet the risk threshold for “frequently  
repeated” when she worked at the unit clerk’s workstation and nurses’ workstation No. 2, did not  
meet the threshold for left shoulder abduction/flexion when she worked at the unit clerk’s  
workstation, and did not meet the threshold for left shoulder abduction when working at either of  
the nurses’ workstations.  
[172] In addition, Mr. Everett’s ultimate opinion does not include any acknowledgement that the  
worker’s body position at the time of the assessment was likely an unreliable reflection of her  
body position during the time frame relevant in this appeal. In particular, Mr. Everett did not  
discuss the impact of the two potential limitations regarding his measurements that he identified  
35  
“Static load” is defined in policy item C4-27.10(B) as “sustain a given level of muscle force/exertion for  
a duration of time, against gravity or against some other external force.”  
Emphasis in the original.  
36  
42  
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1903050 (March 3, 2022)  
earlier in the report: first, that the worker was “guarding” to limit pain and/or discomfort  
associated with active range of motion; and, second, that there was limited shoulder, cervical,  
thoracic, and scapular range of motion secondary to the worker’s frozen shoulder compared to  
her range of motion at symptom onset.  
[173] Overall, I found Mr. Everett’s report unhelpful. In addition to his reliance on questionable sEMG  
testing and the other concerns noted above, the report was written in a confusing and  
somewhat meandering style and includes internal inconsistencies. Mr. Everett also made a  
number of statements that amount to opinion evidence regarding causation, which he is not  
qualified to offer, and, as noted, assumed the role of adjudicator. In my view, the report does not  
contain persuasive evidence to support that the work activities involving use of the worker’s  
non-dominant left hand while typing at work stressed the tissues of her left shoulder to the point  
where such activity was capable of being of causative significance to development of her left  
shoulder condition.  
[174] As set out above, Dr. Leith stated that Mr. Everett’s report does not offer any relevant  
information to the symptoms experienced by the worker. Instead, the report indicated mostly left  
upper trapezius muscle use and, in his opinion, there was nothing from this report that would be  
consistent with pathology being related to the rotator cuff.  
[175] I acknowledge that Dr. Gallagher takes a different view. However, as noted, beyond providing a  
general endorsement of Mr. Everett’s ultimate conclusion, Dr. Gallagher did not specify which of  
Mr. Everett’s conclusions were reliable and he did not make any comments about why, as  
appears to be the case, he found Mr. Everett’s methodology reliable. Further, as noted, there is  
no indication that Dr. Gallagher had the benefit of reviewing the videotapes that Mr. Everett and  
the case manager took. I conclude that Dr. Gallagher’s opinion is neither persuasive nor  
reliable.  
[176] I have personally reviewed the video evidence taken by the case manager and Mr. Everett. I am  
satisfied that this evidence is consistent with Dr. Karrel’s understanding that:  
The worker’s job duties involve a combination of fluid, dynamic, multi-planar, and intermittent  
left shoulder movements that include some repetition, light forces, no jarring, and variable  
dynamic range of motion.  
There is a certain degree of repetition/cyclical left shoulder movement, there is no significant  
single presence or a combination of repetitive movements, jarring or vibrational forces,  
awkward positions, or significant force applied to the worker’s left shoulder.  
The significant variation in the worker’s work activities allowed for muscle-tendon recovery  
and for variation in the actual shoulder motions.  
43  
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1903050 (March 3, 2022)  
The worker’s work activities often involved the left shoulder held in neutral or close to neutral  
postures.  
[177] With this context I mind, I accept Dr. Leith’s opinion, formed after he reviewed both the videos  
taken by the case manager and those taken by Mr. Everett, that the workstation videos did not  
demonstrate any position of the shoulders or arms that would result in an injury.  
[178] Having considered all of the evidence, I also accept Dr. Leith’s opinion that the worker had  
pre-existing left shoulder pathology, and that none of the pre-existing degenerative changes  
noted on imaging were aggravated or caused by her working conditions or activities.  
[179] Dr. Gallagher conceded that it was possible that Dr. Karrel’s view that the worker’s job duties  
did not alter the course of a pre-existing left shoulder condition was accurate. However, owing to  
his view that the worker sustained an acute tear of her left supraspinatus tendon at some point  
after she resumed her duties as a psychiatric nurse (variously posited as one month, three to  
four months, or up to 10 months prior to August 1, 2018), he felt that the worker did not have a  
pre-existing condition.  
[180] I consider it significant that Dr. Gallagher did not comment on the fact that the MRI imaging,  
which Dr. Karrel reviewed, showed findings that were consistent with a longstanding injury:  
For instance the supraspinatus full-thickness tear has already been complicated  
by atrophy and retraction of the worker’s left supraspinatus muscle. This takes  
several months to occur and is not likely to be part of an acute traumatic incident  
basis. Likewise, the left infraspinatus intra substance partial thickness tear and  
bicipital tendinopathy appear to be more consistent in appearance with  
longstanding injury.  
[181] Also, as noted above, Dr. Gallagher was apparently not aware that, prior to December 2017, the  
worker had symptoms in her left shoulder that were consistent with a pre-existing condition.  
[182] Further, Dr. Gallagher’s view that the worker’s frozen shoulder was secondary to an  
injury/immobilization that occurred at work (owing to his understanding there was an acute injury  
of the shoulder) was discounted by Dr. Leith. Dr. Leith explained that, if this were the case,  
there would have been a very obvious acute event causing pain to the shoulder joint resulting in  
immobilization immediately. The medical evidence and the worker’s self-report establishes that,  
contrary to Dr. Gallagher’s understanding, there was no acute injury.  
[183] Above, I have acknowledged that there was a temporal relationship between the worker’s  
resumption of her job duties as a psychiatric nurse and the onset of increased left shoulder  
symptoms, and that these duties were unaccustomed. However, other evidence supports that,  
as Dr. Leith stated, the worker’s complaints of left shoulder pain and stiffness could have been  
44  
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1903050 (March 3, 2022)  
caused by sleep positioning, any activity of daily living involving use of the shoulders repetitive  
at or above shoulder level, or any other movement that caused a muscular strain.  
[184] In this regard, both the worker and her representative suggested that her left shoulder condition  
cannot be explained by Dr. Leith’s view that it is idiopathic in nature because, when away from  
work, she did not experience symptoms. However, this is not consistent with the medical  
reporting. In particular, in a chart note dated February 20, 2019 (four months after the worker  
stopped work), Dr. MacDonald stated that the worker had tried to do more around her  
household and, with this increased activity, her left shoulder condition had worsened. Also, as  
noted above, within two weeks of the worker commencing her return to work in November 2019,  
the worker reported having some burning, not just in the left shoulder but also in the right  
shoulder, after completing only a few shifts involving computer work. This later increase in  
symptoms, with the worst symptoms being in the previously unaffected right shoulder, is  
consistent with Dr. Karrel’s view that the worker’s work activities revealed some symptoms, but  
did not play a role in the development of her left shoulder conditions or in worsening or  
accelerating the underlying condition in that shoulder. Both the increase in left shoulder  
symptoms noted in February 20, 2019 and the more recent increase in symptoms in both  
shoulders in late 2019 is consistent with Dr. Leith’s opinion that the left frozen shoulder, being  
idiopathic, would have occurred regardless of her work activities.  
[185] Policy item C4-25.20(C)(i) states, in part, as follows:  
If a worker has a kind of bodily deterioration that affects the population at large, it  
is not compensable simply because of a possibility that work may be one of the  
range of variables influencing the pace of that degeneration. For the disability to  
be compensable, the worker’s employment must have been of causative  
significance. The evidence must establish it is “at least as likely as not” that the  
work activity brought about an occupational disease that would not otherwise  
have occurred, or that the work activity significantly advanced the development of  
a disability that would otherwise not have occurred until later.  
[186] I acknowledge that the worker sincerely believes that, because she felt an increase in her left  
shoulder symptoms at work, her work activities must have been the cause of her left shoulder  
condition. However, the reliable medical evidence before me does not support this belief.  
[187] Dr. Leith’s opinion is the only medical opinion that was based on a review of all of the evidence.  
I have not identified any reason to discount that opinion and, for the reasons set out above, I am  
satisfied that Dr. Leith’s credentials as an orthopedic specialist and his prior experience qualify  
45  
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1903050 (March 3, 2022)  
him to provide an expert opinion regarding both the diagnosis of the worker’s left shoulder  
condition and regarding causation of that condition. I accept Dr. Leith’s expert opinion that:  
The worker’s left shoulder symptoms in and after December 2017 resulted from an  
idiopathic frozen shoulder and progressed in a manner that was consistent with this  
diagnosis.  
While MRI imaging reported a rotator cuff tear, this was an incidental, age-related  
degenerative finding. The tear was not caused by her work activities and could not have  
been caused by her work activities since there was no acute onset of pain which would be  
expected with an acute traumatic tear of the rotator cuff tendons, and none of the  
pre-existing changes in the worker’s shoulder were aggravated or caused by her working  
conditions or activities.  
There was no possible mechanism from her work activities to cause injury to the rotator cuff  
tendons or any of the structures of the shoulder joints.  
The worker’s duties from December 2017 through to October 22, 2018 were not of causative  
significance and were in no way contributory to the development of a frozen shoulder  
[188] I find insufficient reliable evidence to support that it is at least as likely as not that the worker  
was exposed to workplace risk factors of causative significance to the onset or progress of her  
left shoulder conditions. I conclude that the worker’s left shoulder condition was not due to the  
nature of her employment. Therefore, she is not entitled to compensation for an occupational  
disease under section 136 of the Act.  
Appeal Expenses  
[189] Section 7(1)(b) of the Workers Compensation Act Appeal Regulation gives WCAT authority to  
direct reimbursement for the expenses associated with obtaining expert evidence in situations  
where the evidence was useful or helpful to the consideration of the appeal or where it was  
reasonable for the party to have sought such evidence in connection with the appeal.  
[190] Item #16.1.3.1 of WCAT’s MRPP states that, with respect to medical-legal reports and opinions,  
WCAT will usually order reimbursement at the rates established by the Doctors of BC.37  
[191] I am satisfied that it was reasonable for the worker to seek and obtain Dr. Gallagher’s April 26,  
2020 medical-legal opinion and the amount paid to Dr. Gallagher is consistent with the rate  
established by the Doctors of BC in fee code A00073, as it read on April 26, 2020. The worker’s  
union is entitled to reimbursement for $1,581.57 that was paid to Dr. Gallagher for his April 26,  
2020 medical-legal opinion.  
37  
Formerly, the British Columbia Medical Association.  
46  
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1903050 (March 3, 2022)  
[192] Item #16.1.3.1 of the MRPP states that, for reports other than medical-legal reports and  
opinions for which there is an applicable fee established by the Doctors of BC, WCAT will  
usually order reimbursement at the rate established by the Board for the same or similar  
expenses. Where, as here, there is no applicable tariff rate or fee schedule, the amount of  
reimbursement to be ordered will be a “reasonable” amount, based on an assessment of all  
relevant circumstances, including the guidance on fees that is provided by the expert’s  
governing professional body.  
[193] Mr. Everett billed the worker’s union $4,234.38 for production of his February 20, 2020  
ergonomic risk assessment report, as amended March 23, 2020. This amount consisted of  
$3,300.00 (20 hours at $165.00 per hour) for production of the report, $577.00 (billed at half his  
hourly rate) for travel time, and $193.88 for mileage, ferry, and accommodation costs. There is  
no applicable Board tariff rate or fee schedule for an ergonomic risk assessment report.  
[194] The worker’s representative submitted that the union is entitled to reimbursement of the full  
amount billed by Mr. Everett. He acknowledged that there have been many prior decisions  
where WCAT has discussed Mr. Everett’s level of billing. He submitted that Mr. Everett  
undertook a very thorough assessment, within a context where there was no prior proper  
assessment and where ergonomic assessment was essential. He submitted that Mr. Everett’s  
bill reflected the actual time it took him to do the real work that he, as a professional, considered  
appropriate, and that he is a highly qualified expert who does high quality work. Further, as the  
travel costs for which he billed were necessary for him to undertake his assessment, these  
should be reimbursed.  
[195] I accept that, given the cursory nature of the case manager’s site visit and resulting discussion,  
it was reasonable for the worker to seek and obtain additional assessment of her possible  
workplace exposure to risk factors relevant to development of an ASTD of the left shoulder.  
Therefore, the union is entitled to some reimbursement for Mr. Everett’s report. However, I am  
not persuaded that the union is entitled to reimbursement of the full amount Mr. Everett billed.  
[196] During submission, the worker’s representative acknowledged that there have been many prior  
decisions where WCAT has discussed Mr. Everett’s level of billing. These include the WCAT  
decisions I have referenced above, all of which were accessible on WCAT’s website prior to  
January 4, 2020, when the worker’s representative sent his retainer letter to Mr. Everett. In each  
of these cases, the WCAT panel set out reasons for concluding that reimbursement for  
Mr. Everett’s report should be reduced from the amount he billed.  
47  
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1903050 (March 3, 2022)  
[197] I have considered the panel’s analysis in these prior decisions, the guidance provided in  
noteworthy decision WCAT-2013-02405 (August 27, 2013)38 regarding the factors to consider  
when assessing a reasonable amount of reimbursement and which also considered the  
appropriate level of reimbursement for an ergonomic risk assessment report Mr. Everett  
prepared, and the billing guidance provided by the British Columbia branch of the Canadian  
Association of Occupational Therapists in Private Practice Occupational Therapy Services in  
British Columbia (2017): Survey Results and Suggested Fee Guide.  
[198] Among other factors, I note that:  
The issue in this appeal involved a relatively straightforward matter of whether the worker’s  
ASTD symptoms were caused by her job as a psychiatric nurse. The Board’s policy about  
what constitutes risk factors is plainly laid out in the RSCM II. Success in such a case turns  
on the identification of risk factors and the application of the test of causative significance.  
The worker lives in an area of the province where there are numerous ergonomists and  
occupational therapists who could have been hired to undertake the task of producing a risk  
factor analysis. Retention of such an expert might have resulted in some minimal travel  
expenses (mileage and parking) being incurred, but would not have required the additional  
transportation expenses billed by Mr. Everett.  
The claim file evidence that Mr. Everett was required to review was neither lengthy nor  
complex and, while Mr. Everett included a number of references to journal articles and texts  
in his report, his discussion of these references largely duplicates the same discussion he  
has presented in the prior reports WCAT has considered, with no indication that he has  
updated his research to address the deficiencies in analysis that prior WCAT panels have  
identified.  
In the report, Mr. Everett used jargon, complex formulae, pages of diagrams and language  
that varies from the norm in ergonomic or medical reports, and, overall, served to obscure  
meaning rather than elucidate it.  
I had considerable concerns about the helpfulness and relevance of sEMG data and  
measurement of the worker’s anthropometric dimensions to the issue under appeal, and  
Mr. Everett’s use of these methodologies has been the subject of similar concerns in the  
prior published WCAT decisions referenced above (all of which predate the union’s retention  
of Mr. Everett).  
38  
Item #19.3 of WCAT’s MRPP explains that noteworthy decisions may provide significant commentary  
or interpretive guidance regarding workers’ compensation law or policy, comment on important issues  
related to WCAT procedure, or serve as general examples of the application of provisions of the Act,  
policies or adjudicative principles. Noteworthy decisions are not binding on WCAT. Although they may  
be cited and followed by WCAT panels, they are not necessarily intended to be leading decisions.  
48  
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A1903050 (March 3, 2022)  
[199] Having regard to all of the circumstances, including the amounts that prior panels with similar  
concerns to mine have found reasonable for reimbursement for Mr. Everett’s reports in  
published decisions that predate the date on which the union retained Mr. Everett in the current  
appeal, I am satisfied that $2,500.00 is a generous, but reasonable, amount to allow for  
reimbursement for the expense of obtaining the February 20, 2020 report.  
Conclusion  
[200] I deny the worker’s appeal and I confirm the Review Division’s October 28, 2019 decision.  
[201] I conclude that worker’s left shoulder condition was not due to the nature of her employment.  
[202] The union is entitled to reimbursement in the amount of $1,581.57 for Dr. Gallagher’s April 26,  
2020 report and to reimbursement in the amount of $2,500.00 for Mr. Everett’s February 20,  
2020 report (as amended March 23, 2020).  
[203] There was no request for reimbursement of any additional appeal expenses. Therefore, I make  
no further order in that regard.  
Deirdre Rice  
Vice Chair  
49  
150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1  
Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  


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