WCAT Decision Number:  
A2101852 (June 14, 2022)  
DECISION OF THE WORKERS’ COMPENSATION APPEAL TRIBUNAL  
WCAT Decision Number:  
A2101852  
WCAT Decision Date:  
June 14, 2022  
Introduction  
[1]  
[2]  
This decision concerns whether a November 5, 2014 decision of a panel of the Workers’  
Compensation Appeal Tribunal (WCAT) should be reconsidered on the basis there was a  
breach of the rules of procedural fairness. This decision also concerns whether, if  
reconsideration on that ground is not established, new evidence reconsideration grounds  
found in section 310 of the Workers Compensation Act (Act) are established.  
In WCAT-2014-03255 the panel confirmed a decision of the Review Division of the Workers’  
Compensation Board (Board)1 which denied a 2012 reopening of the worker’s 2005 claim for a  
low back strain and which also determined the worker did not suffer any injury other than the  
low back strain as a result of a March 26, 2005 work incident.  
[3]  
[4]  
With the assistance of a lawyer, the worker provided a July 8, 2021 application for  
reconsideration, a July 8, 2021 submission, a June 11, 2021 affidavit, and over 200 pages of  
documents divided into three indices.  
By letter of July 23, 2021, a WCAT legal counsel acknowledged the reconsideration materials.  
He considered the worker’s application was missing some important information, and he raised  
various considerations for comment by the worker’s lawyer. The worker’s lawyer provided an  
August 13, 2021 submission. By letter of August 24, 2021, the WCAT legal counsel advised that  
the worker’s application would be forwarded to WCAT’s Registration Department for processing.  
[5]  
[6]  
While the worker’s employer at the time of his 2005 incident was offered an opportunity to  
participate in the reconsideration, it did not indicate it wished to participate.  
By letter of October 15, 2021, the worker was offered an opportunity to provide further  
submissions. As no further submission was provided by the November 5, 2021 due date, by  
letter of November 15, 2021 WCAT stated it was assumed the worker was not providing a  
further submission.  
[7]  
By letter of November 17, 2021, the worker’s lawyer indicated he trusted that the  
reconsideration materials and his August 13, 2021 submission would suffice with respect to  
1
The Board operates as WorkSafeBC.  
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:  
A2101852 (June 14, 2022)  
whether the threshold grounds for reconsideration had been met. By telephone call of  
November 18, 2021 a WCAT appeal coordinator confirmed with the worker’s lawyer that the  
materials referenced in his November 17, 2021 submission were all on the WCAT file.  
[8]  
[9]  
At this juncture, I note that the Act was reorganized and renumbered under the Statute Revision  
Act (RSBC 1996, c. 440), effective April 6, 2020—in between the 2014 WCAT decision and the  
worker’s 2021 application for reconsideration. The applicable legislation is the Workers  
Compensation Act, RSBC 2019, c. 1. The purpose of the revisions is to make the Act easier to  
read and understand. The revisions are not intended to change the legal effect of the Act.  
The worker has not requested that his reconsideration application be heard via an oral hearing.  
While I have some concerns with the reliability of some of the worker’s evidence tendered as  
part of this reconsideration application, I find that ultimately the disposition of his application  
rests on legal considerations that do not necessitate the holding of an oral hearing.  
Issue(s)  
[10]  
At issue are the following:  
Should WCAT-2014-03255 be set aside on the basis there was a breach of the rules of  
procedural fairness?  
If reconsideration on that ground is not established, are new evidence reconsideration  
grounds established?  
Jurisdiction  
[11]  
In Fraser Health Authority v. Workers’ Compensation Appeal Tribunal, 2014 BCCA 499 (Fraser  
Health Authority), the court found WCAT has no authority to review one of its decisions to  
determine if it was patently unreasonable. WCAT’s ability to reopen an appeal to cure a  
jurisdictional defect is confined to addressing true questions of jurisdiction and procedural  
fairness grounds. That finding was not disturbed on appeal (British Columbia (Workers’  
Compensation Appeal Tribunal) v. Fraser Health Authority, 2016 SCC 25).  
[12]  
[13]  
In my decision, I have used the terms “reconsideration” and “reconsider” rather than “reopen an  
appeal” because those were the terms that were used in processing the worker’s materials  
received by WCAT.  
Section 310 of the Act establishes that a party to a completed appeal may apply for  
reconsideration if new evidence has become available or has been discovered. Reconsideration  
may take place if the evidence is substantial and material to the decision and (i) did not exist at  
the time of the appeal hearing or (ii) did exist at that time but was not discovered, and could not,  
through the exercise of reasonable diligence, have been discovered.  
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:  
A2101852 (June 14, 2022)  
[14]  
The vice chair who issued WCAT-2014-03255 is no longer a member of WCAT. I find I have  
jurisdiction to address the worker’s application regarding procedural fairness on the basis that  
Fraser Health Authority, in finding the WCAT chair did not have authority to assign a new WCAT  
panel to hear an application to reopen an appeal, did not concern a situation in which the  
original WCAT panel was no longer a member of WCAT. The worker’s new evidence  
reconsideration application has also been assigned to me.  
Background and Evidence  
[15]  
[16]  
Owing to the nature of the issues raised by the reconsideration application, I find it necessary to  
record a detailed summary of the worker’s claim file, especially the initial documents on the  
claim file.  
The initiation of the claim and 2005 documents  
On April 1, 2005 the Board received an employer’s report of injury or occupational disease  
(employer’s report of injury) and a worker’s report of injury or occupational disease to employer  
(worker’s report of injury). The former document is a “Form 7” and the latter document is a  
“Form 6A” or “F6A.” (I mention those other terms because some of the documents on the claim  
file use those other terms. Save for quoted materials, I will, for the most part, use document  
descriptors noted in the parentheses above.) Both documents are dated March 31, 2005. Both  
refer to a March 26, 2005 incident in which a step ladder collapsed while the worker was  
painting a boat. Both indicate the incident occurred at 1:00 p.m. and was reported to the  
employer at 1:15 p.m.  
[17]  
Regarding injuries sustained by the worker, the employer’s report of injury states, “Next morning  
sore back [capitalization modified].”2 The employer’s report of injury notes that on March 29,  
2005 the worker saw Dr. Hosie at a clinic. The worker’s report of injury also refers to Dr. Hosie  
as being an attending physician.  
[18]  
[19]  
[20]  
The worker’s report of injury describes the injuries as follows: “Recieving a jolt on landing on my  
feet, the following morning back was sore and hurt to move [capitalization modified].”  
The employer’s report of injury indicates the worker last worked after the injury at 1:00 p.m. on  
March 26, 2005 and that he returned to work at 9:00 a.m. on March 31, 2005.  
Via an April 1, 2005 form letter, the Board sent the worker an “F6,” which is a worker’s  
application for compensation and report of injury or occupational disease (“Form 6” or the  
worker’s application). (Save for quoted materials, I will, for the most part, use the descriptor “the  
worker’s application.”)  
2
All quotations in the decision are reproduced as written, save for changes noted.  
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:  
A2101852 (June 14, 2022)  
[21]  
An April 6, 2005 telephone memorandum documents that the worker called to advise he  
received his application and he would send it in. He indicated he returned to work even though  
he was not ready to do so. He left work because he was threatened with a hammer during a  
heated conversation. He anticipated he would either quit or be terminated.  
[22]  
[23]  
On April 7, 2005 the worker underwent chest x-rays. The radiologist interpreted the x-rays as  
showing small anterior osteophytes in the mid-thoracic region.  
An April 8, 2005 memorandum documents that a client service representative telephoned the  
worker at a telephone number ending in 4370 listed in the earlier April 6, 2005 memorandum  
and at a telephone number ending in 4670 listed in the employer’s report to request the worker’s  
“F6.” There was no answer and there was no machine to leave a message. The client service  
representative indicated she had sent “the W10 and W41 letters today and will set the claim up  
for 10 days to hear back from him.”  
[24]  
[25]  
[26]  
Via a form letter sent on April 8, 2005, the worker was asked to contact the Board. Via a second  
form letter sent on April 8, 2005, a second request for an F6 was sent to the worker. (Those  
letters appear to be the W10 and W41 letters referred to in the paragraph above.)  
On April 9, 2005 the worker underwent a lumbar spine x-ray. The radiologist interpreted the  
x-ray as showing minimal L3-4 disc space narrowing. The remainder of the disc spaces and  
vertebral body alignment were maintained.  
By letter of April 11, 2005, the employer’s office manager expressed concerns to the Board as  
to whether the worker’s claim was the result of a stumble from a ladder or whether the worker  
was suffering a pre-existing medical problem. The office manager noted the worker had  
reported traces of blood in a recent urine test. The office manager stated that the hard landing  
on the worker’s feet may have jolted an old medical condition in that the worker apparently had  
a tumour on or near his groin or spinal column. The employer did not feel it should be  
responsible to pay for a recurring medical condition.  
[27]  
On April 12, 2005 an application for compensation dated April 11, 2005 was faxed to the Board  
from a pharmacy. The report lists the date and time of the injury as April 2, 2005 at 1:45 p.m.  
and states the injury was reported to the employer at 2:00 p.m. The mechanism of injury is  
described as follows:  
I was asked to spray paint a boat on Sat. Due to drying time - I was just finishing  
the roof, as I rotated to come down the lader, the ladder twisted and seperated  
and fele forward landing on my feet in a twisted position. Recieving a joult up my  
legs and back and as I had just finished painting I cleaned up and told the boss  
what happened when he returned from lunch.  
[capitalization modified]  
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:  
A2101852 (June 14, 2022)  
[28]  
[29]  
The report describes the injuries received as follows: “I recieved a sharp joult up my legs to my  
back [capitalization modified].”  
The application states that the date and time the worker last worked was “14” 2005 at  
11:00 p.m.  
[30]  
[31]  
Via an April 13, 2005 form letter, the Board acknowledged receipt of the “F6.”  
On April 14, 2005 the Board received reports from Dr. Hosie documenting treatment on  
March 29, 2005 and April 7, 2005 for a March 26, 2005 injury. Other than the references to  
dates, the forms were identical in that they referred to the worker falling off a ladder and  
experiencing lumbar pain and abdominal pain.  
[32]  
In an April 15, 2005 telephone memorandum, a Board entitlement officer documented  
information supplied by the employer’s office manager, who confirmed that the injury occurred  
on Saturday, March 26, 2005. The worker worked the rest of his shift on March 26, 2005.  
March 27, 2005 was a scheduled day off. The worker volunteered to work Easter Monday,  
March 28, 2005. He performed a job for 3.5 hours and was paid for time and a half that day. He  
worked on March 29, 2005 except for half an hour when he went to the doctor. He took  
March 30, 2005 off because he had a cold. He then worked scheduled hours (variable) until  
Friday, April 8, 2005, when he informed the employer that, as of that date, he had to take  
two weeks off due to doctor’s orders.  
[33]  
When asked whether the worker’s back seemed to be bothering him between March 28, 2005  
and April 7, 2005 when he was working, the office manager stated the worker’s behaviour  
seemed to be affected by whether he thought someone was watching him. When he thought  
someone was watching him, he limped a bit. When the manager saw the worker and he did not  
think she was watching, he walked without a limp.  
[34]  
[35]  
The office manager reiterated the concerns noted in her April 11, 2005 letter as to blood in the  
worker’s urine and the employer’s concern that time off work from April 8, 2005 might be due to  
a prior condition rather than the fall at work.  
In an April 18, 2005 memorandum, the entitlement officer documented a claim review. She  
summarized the contents of the worker’s application (F6) and the worker’s report of injury (6A):  
Worker F6 reports that on Apr 2/05, a stepladder collapsed while he was painting  
the upper side of a boat. Injuries reported are that he felt a jolt in his legs and  
back. His F6A indicates an injury date of a week earlier, Mar 26/05. On F6A he  
stated that he felt a jolt on landing on his feet and that the next morning his  
back was sore and it hurt to move. I note that he did not say he felt any  
pain at that time.  
[emphasis added]  
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:  
A2101852 (June 14, 2022)  
[36]  
The entitlement officer summarized information provided by the employer in its report, in the  
April 11, 2005 letter, and during a conversation with the office manager:  
Employer report indicates date of Mar 26/05. There is no protest on F7 [the  
employer’s report], but employer sent in a later (Apr 11/05) letter with concerns.  
Said worker has a prior recurring medical problem: a tumour near his groin or  
spinal column. I called employer to clarify. [The office manager] clarified that  
employer is not protesting that an incident may have occurred. However, as no  
time loss due to back injury until almost 2 weeks later, they consider time  
loss may be due to pre-existing, not work event and would protest time loss on  
the claim. Also concerned re inconsistent behaviour re injury. (See  
Apr 15/05 claim log “Employer Information”).  
[emphasis added]  
[37]  
[38]  
[39]  
Later in the memorandum, she documented an “Action Plan” which included such steps as  
contacting the worker to ascertain how he was able to continue working until April 8, 2005,  
including a query as to whether he was off work on March 30, 2005 due to a cold and a query  
as to why he went off work from April 8, 2005 onward.  
In a second April 18, 2018 memorandum, the entitlement officer documented information  
provided by the worker. She clarified with the worker that the date of injury was March 26, 2005  
rather than April 2, 2005 as indicated on his “F6.” He did not know why he put down April 2,  
2005.  
She documented information as to the mechanism of injury involving “12 foot plastic ladder  
riveted together” described by the worker:  
…As he stepped on the top step (not the very top of ladder), the ladder broke  
apart and he fell. The ladder had been broken by a couple of young guys who  
used it on the Friday, didn’t tell anyone it was broken and put it back in the  
painting room.  
He managed to “ride” one side of the ladder like a surf board as it was falling and  
he landed on his feet. He felt an immediate jolt through his legs and his lower  
centre back in the lumbar area. He did not say anything about pain until I  
specifically asked him about pain. He then said that he felt pain when he  
landed in his legs and low back. He told his supervisor [Mr. S] within a half an  
hour He was finished for the day and then cleaned up and went home. He says  
he was on an adrenaline rush from painting and that’s why he could finish up.  
[emphasis added]  
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:  
A2101852 (June 14, 2022)  
[40]  
The entitlement officer documented information concerning March 27, 28, and 29, 2005:  
The nest day his back was sore when he woke up and he didn’t go to work until  
Tues Mar 29th because Monday Mar 28/05 was the Easter holiday. His back  
was feeling sore so he went to a clinic that day and saw Dr. Hosie. As he moved  
from Ontario May 30/04, he doesn’t have a family doctor. I told him that  
employer says he requested to work Mon Mar 28/05 and that he did work  
then. He said that he didn’t, but then said maybe he could have; he doesn’t  
remember.  
[emphasis added]  
[41]  
In initially documenting a discussion as to days missed from work, the entitlement officer noted  
the worker was adamant he did not work his regular hours from March 31, 2005 to April 7, 2005:  
We had some discussion about days missed from work. Worker says after he  
saw doctor Mar 29/05 doctor told him to stay off work for a couple of weeks. He  
says he stayed off work Mar 30/05. When I asked him why he said it was  
because of his back pain. I told him employer had recorded that it was due to a  
“cold”. He then remembered that he did have a bad cold but that his back hurt  
too. He says he saw the doctor again on Fri Apr 1/05 and doctor told him to stay  
off work for two weeks. I informed him that employer said he worked his  
regular hours from Th Mar 31/05 to Apr 7/05. He was adamant that he  
didn’t.  
[emphasis added]  
[42]  
The entitlement officer documented there was a contrast between the worker’s assertion that he  
did not work after April 1, 2005 and his assertion that in an April 15, 2005 paycheque, he was  
paid for 60 hours:  
He said that he remembers that he worked a couple of days after the injury as  
the employer had a police boat it really needed to get done, but says he  
didn’t work after he saw doctor Apr 1/05. I inquired how back felt when he  
was working after injury. Said it was “murder” and he shouldn’t have been  
working. He said that he just got a paycheque to Apr 15/05 and only got paid  
60 hours, which showed that he didn’t work after Apr 1/05. I pointed out that if  
he didn’t work at all the two weeks from Apr 1/05 to Apr 15/05, his paycheque  
may be $0. He said he couldn’t really remember and to ask employer.  
[emphasis added]  
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:  
A2101852 (June 14, 2022)  
[43]  
[44]  
The entitlement officer documented that the worker reported a March 31, 2005 argument with a  
co-worker and that the worker worked on Friday, April 1, 2005:  
He also reports that he got into an argument with a co-worker on Th[urs]  
Mar 31/05. He says he went home and told employer he was going to quit.  
Employer talked him out of it and he returned to work on Friday Apr 1/05 and  
worked 4 hours.  
Under the heading “Issues,” the entitlement officer documented various matters including that  
there was a concern regarding the dates that the worker worked after the incident perhaps  
associated with the fact the worker appeared to be one week out of date when remembering his  
activities and that there was a question of how the worker was able to work for most of two  
weeks after the incident and why he needed two weeks off work as of April 8, 2005.  
[45]  
[46]  
On April 19, 2005 the Board received a chiropractor’s report from Dr. Repsch.  
In an April 20, 2005 memorandum, the entitlement officer documented information supplied by  
the worker. He “got his timecards from work.” He indicated he was mixed up when he spoke  
with her on April 18, 2005 in that he thought the Easter weekend started on Friday, April 1, 2005  
rather than Friday, March 25, 2005. She noted, “He will fax to my direct line [XXX-XXXX].”  
[47]  
[48]  
The entitlement officer noted the worker stated he had seen a physiotherapist, as recommended  
by the doctor, twice, and that treatment helped, and he planned to return to work on April 25,  
2005.  
On April 20, 2005 Dr. Hosie’s office faxed to the Board his chart notes for March 29, 2005,  
April 7, 2005, April 9, 2005, April 14, 2005 and April 19, 2005. Of interest, the April 7, 2005 chart  
note stated the worker “tried work 31, 1, 4, 5 off 6.” It appears Dr. Hosie recorded “tired today.” It  
is possible he recorded “tried today.”  
[49]  
[50]  
On April 21, 2005 a one-page letter and one page showing timecards for the period between  
March 24, 2005 and April 20, 2005 were received by the Board. The documents were faxed  
from the same pharmacy from which the worker’s application was faxed. The upper right-hand  
corners of both sheets of paper list the worker’s claim number. The first line of the letter reads  
as follows: “TO [name of entitlement officer]. FROM [name of worker].”  
The first paragraph refers to events on March 26, 2005 to March 29, 2005:  
This accident occurred. On the Sat 26. This is when I fell of the lader. On the  
long weekend. I was schedualed to paint the [name of vessel] on the Monday  
[March 28] that I did in pain. But it h[ad] to be done. I told the boss that I hur[t] but  
the Dr. was closed. I came in Tuesday [March 29] morn. And told them I hur[t]  
and was of to the Dr.  
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:  
A2101852 (June 14, 2022)  
[capitalization modified in quotations from the letter and some  
bracketed material added to acknowledge the loss of letters on  
the right edge of the sheet due to faxing or copying]  
[51]  
The next paragraph refers to events on March 29, 2005 to April 6, 2005:  
That Dr. told me to rest and Wend [March 30] I was off work. I returned to work to  
do a different type of work (sewing) on the Thursday [March 3] then Fri [April 1] I  
worked hard bond + sanding. After that I was hurting and reasted all weekend  
[April 2 and 3]. Their was another boat to start on the following Monday. Monday  
[April 4] was an easy day washing a boat. But Tuesday [April 5] sanding started  
irritating the back again. On the Wend [April 6] a forman compl sent me home  
after 3 hours I was complaining I hurt to mutch and shouldent be at work.  
[52]  
[53]  
The final paragraph refers to events from April 7, 2005 to April 21, 2005:  
Returning Thurs [April 7] I worked hard sanding body filler untill noon at wich time  
I had a Dr. appointmen[t] at that time he told me not to retur[n] to work. That  
would be April 7 05 and have been off work since, this being April 21 05.  
The time cards list work hours as follows:  
March 24  
March 25  
March 26  
March 27  
March 28  
March 29  
March 31  
April 1  
8
7
4.5  
3.75  
0.5 “off to the Dr.”  
7
7.75  
April 2  
April 3  
April 4  
8
April 5  
9.25  
April 6  
8 “Pd for 8 hr (only worked 3 hrs)”  
April 7  
4
April 8  
Sick  
April 9 to 20 Off doctor’s orders  
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:  
A2101852 (June 14, 2022)  
[capitalization modified in quoted  
passage in bullets above]  
[54]  
In an April 22, 2005 memorandum, the entitlement officer documented information provided by  
the employer regarding the existence of light duties and the worker’s advice to the employer that  
he would not be able to return to work on April 25, 2005. The entitlement officer documented  
information provided by the worker during her telephone conversation with him as to his  
condition, his treatment, light duties, and his raising the issue of light duties with his  
chiropractor.  
[55]  
[56]  
[57]  
[58]  
In an April 25, 2005 memorandum, the entitlement officer documented that the worker  
telephoned to advise her that his chiropractor indicated the worker could return to work on  
April 26, 2005 as long as he took it easy. She advised him to call his employer to confirm a  
return to work.  
In a second April 25, 2005 memorandum, the entitlement officer documented that the  
chiropractor advised her that the worker would be able to perform light duties and other duties  
that he could tolerate effective April 26, 2005 and might be able to return to full duties during the  
week of May 1, 2005.  
In an April 25, 2005 “Clm [Claim] Dec [Decision]/Wage Rate” document (“decision document”),  
the entitlement officer recorded that the worker’s claim was accepted for a March 26, 2005  
lumbar strain. The mechanism of injury is described as “fell from 12 foot ladder and landed hard  
on feet, injuring low back.” There is no reference to the worker striking his tailbone or low back.  
That section of document entitled “Investigation and Reasoning” documents the entitlement  
officer’s understanding as to the worker’s work activities subsequent to March 26, 2005:  
Incident occurred Sat Mar 26/05. Worker worked two days prior to being  
disabled on Mar 30/05. Was then able to work Mar 31/05 to Apr 7/05 prior to  
being disabled from Apr 8/05. I am satisfied that reason for working during that  
time was that worker tried to work through pain. He saw doctor Mar 29/05 and  
doctor indicated more than 20 days until return to work. He sought medical on a  
regular basis subsequently and medical has confirmed ongoing disability.  
[emphasis added]  
[59]  
[60]  
The entitlement officer documented the following information in that section of the document  
entitled “Last Day Worked”: “Mar 29/05. Off Mar 30/05. Returned Mar 31-Apr 7/08. Off  
Apr 8/05.”  
In an April 25, 2005 decision letter issued to the worker, the entitlement officer noted the  
worker’s claim had been accepted. She explained the setting of the worker’s wage rate and  
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:  
A2101852 (June 14, 2022)  
indicated a payment had been made for March 30, 2005 and the period from April 8, 2005 to  
April 24, 2005.  
[61]  
[62]  
In her April 26, 2005 memorandum, the entitlement officer documented that the employer’s  
office manager confirmed the worker returned to light duties that day.  
In her April 28, 2005 memorandum, the entitlement officer documented that the worker  
telephoned her to advise he had returned to work on April 26, 2005. While he was to return to  
light duties, material was not in and light work was limited. He sanded and sewed a boat  
cushion, working for 6.5 hours. On April 27, 2005 he worked 7.5 hours, spending most of the  
day taping and priming a boat. His back became sorer during the day. After an hour at work on  
April 28, 2005, he went to the chiropractor who advised him to stay off work for the rest of the  
week.  
[63]  
[64]  
[65]  
In her April 29, 2005 memorandum, the entitlement officer documented that the worker  
telephoned her to state his chiropractor told him he should stay off work for two weeks to allow  
his back to heal. She noted that a chiropractor report received that day confirmed the worker’s  
advice.  
In her May 9, 2005 memorandum, the entitlement officer documented she telephoned the  
worker, who was on his way to his chiropractor. The worker could not remember exactly the  
days and hours he worked, but he thought he worked 6.5 hours on April 26, 2005 and  
7.25 hours on April 27, 2005; he was unsure.  
In a May 17, 2005 report, Dr. Gershman, a physician with a diploma in sports medicine who  
assessed the worker at a medical assessment and return-to-work planning program,  
documented his understanding as to the worker’s activities subsequent to the March 26, 2005  
injury:  
It sounds like he worked for a week after the injury, then went off work and  
then tried going back to work for two days, had a flare of pain, and has now been  
off work for 3-4 weeks. He tells me he is ready to go back to work next Monday,  
he knows he will have some pain, but figures he will be able to work through it.  
[emphasis added]  
[66]  
Dr. Gershman documented, among other matters, his understanding of the mechanism of injury,  
the presence of pain as of the date of assessment, and the worker’s plan to return to work:  
HISTORY: He tells me he has not injured his back before. He tells me that he  
was 10-12 feet up on a ladder, which slid over to the side and he rode the ladder  
down and before he hit the ground he jumped and landed on his feet. He felt  
thoracolumbar area pain. He has been treated with chiropractic. On Monday he  
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:  
A2101852 (June 14, 2022)  
was pain-free. He went to his chiropractor and it flared things up, but it settled  
down again today.  
…
ASSESSMENT & PLAN: [The worker] is now almost seven weeks post 10-foot  
jump from a ladder onto his feet without falling. He presents with a strain of  
his thoracolumbar area. I do not think we are dealing with any significant  
unstable disc/bony injury. His pain is settling down, in fact, he tells me he was  
pain-free a couple of days ago.  
He says he is ready to go back to work next week.  
My suggestion is that he does return-to-work at full duties next Monday. If  
he is having trouble with durability, then he can be transferred into an  
OR [occupational rehabilitation] 1 Program coupled with some duties at work if  
need be.  
I do not see any reason to place any medical restrictions on him.  
His complaints of pain sound compatible with the injury. I do not see any physical  
limitations today. I did not suggest any functional testing because I did not see  
any reason to flare him up and I think it is more reasonable to see how he  
performs at work next week.  
[emphasis of lower case text added]  
[67]  
[68]  
Of interest, Dr. Gershman documented that the worker reported that 14 years earlier a tree  
landed on his pelvis and fractured his left fibula and caused chronic pelvic area pain. Six years  
after that event, he had a cystoscopy and removal of a benign bladder tumour, and his pain  
resolved.  
In a May 17, 2005 memorandum, the entitlement officer documented that Dr. Gershman  
telephoned her and advised that the worker did not appear to have any problem other than a  
low back strain, which was resolving. He considered a return to light duties at upholstery sewing  
on May 23, 2005 suitable. The entitlement officer documented that she spoke with the worker  
who confirmed he was planning to return to work at light duties on May 23, 2005. He had a  
meeting with his supervisor that afternoon.  
[69]  
In her May 18, 2005 memorandum, the entitlement officer documented that she reviewed  
Dr. Gershman’s report. She stated she had advised the worker that she expected him to return  
to full duties. He advised her he had spoken with his supervisor, and the worker thought he  
would return to work on Tuesday as his employer was closed on Monday for the holiday. She  
advised him she had approved chiropractic treatment until June 13, 2005. The entitlement  
officer documented she spoke to the worker’s supervisor who confirmed that the employer was  
closed on May 23, 2005. She advised him that the worker was cleared for full duties when he  
returned on May 24, 2005.  
12  
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:  
A2101852 (June 14, 2022)  
[70]  
[71]  
The worker’s temporary disability wage loss benefits ended effective May 23, 2005.  
There is no indication on the claim file that the worker took exception to the termination of  
temporary disability wage loss benefits effective May 23, 2005. In addition, there is no indication  
on the claim file that the worker took exception to the fact he was not paid temporary disability  
wage loss benefits for March 31, 2005 to April 7, 2005, inclusive.  
[72]  
[73]  
In a June 10, 2005 memorandum, the entitlement officer documented that the worker  
telephoned to say that his employer had not been giving him the amount of work he understood  
he would get subsequent to his return to work. He wanted to know if there was a Board  
requirement that the employer had to take a worker back to their job for a certain number of  
weeks after an injury. She documented that she told him there was no such requirement.  
Subsequent to that memorandum, there was no further activity on the file until an October 25,  
2006 request by Service Canada for information regarding benefits paid by the Board. In its  
response, the Board indicated that wage loss benefits were paid for March 30 and from April 8  
to May 23, 2005.  
2010 request to reopen the claim  
[74]  
Subsequent to that exchange in late 2006, there was no further activity on the worker’s claim file  
until the Board received a July 21, 2010 progress report from Dr. Hosie, who indicated the  
worker suffered a flare of low back pain after having slipped on a dock on March 30, 2010. The  
worker was unable to work and wanted to reopen his claim.  
[75]  
[76]  
[77]  
In a July 26, 2010 telephone memorandum, a second entitlement officer documented she was  
unable to contact the worker at the telephone number ending in 4670 that the Board had  
contacted the worker at in 2005.  
In a second July 26, 2010 telephone memorandum, a customer care agent documented that the  
worker called the Board to request a reopening of his claim. He provided an updated phone  
number ending in 0332.  
In a third telephone memorandum dated July 26, 2010, the second entitlement officer  
documented she reached the worker that afternoon. The worker confirmed that the slip on the  
dock referred to by Dr. Hosie happened at the worker’s residence. He lived on a boat. He  
indicated it was not much of a fall. He had been dealing with “recurrent back pain.”  
[78]  
In a July 26, 2010 memorandum, a case manager summarized some of the evidence on the  
claim file. Among other matters, he documented that when the ladder broke on the day of injury,  
the worker jumped onto his feet without falling and that an April 7, 2005 chart note indicated the  
worker tried work on 31, 1, 4, and 5, and the worker was “off 6 tired today.”  
13  
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:  
A2101852 (June 14, 2022)  
[79]  
[80]  
The Board requested and received chart notes from Drs. Hosie and Repsch. The worker did not  
see Dr. Repsch between May 26, 2005 and November 3, 2006. The May 26, 2005 chart note  
indicated the worker was quite comfortable since the last day, which appears to be a reference  
to the previous treatment date of May 24, 2005. In a May 24, 2005 note, Dr. Repsch  
documented the worker returned to work that day and experienced no problems.  
In an August 19, 2010 request for a clinical opinion, the case manager reiterated much of the  
information found in his July 26, 2010 memorandum, including his description of the mechanism  
injury and the April 7, 2005 chart note. He noted that in an August 27, 2007 chart note,  
Dr. Repsch documented that the worker experienced right low backache as a result of jumping  
off a boat. A May 26, 2010 chart note documented that the worker reactivated his low back as a  
result of a twist. A June 22, 2010 chart note documented that shortly after the last treatment on  
May 28, 2010, the worker fell down some stairs and reactivated his low back. A July 9, 2010  
chart note documented that the worker jarred his low back when he fell in his boat. The case  
manager noted that Dr. Hosie’s June 28, 2010 chart note documented that the worker was  
improving after a recent fall.  
[81]  
In a September 1, 2010 opinion Dr. Mason, a Board medical advisor, noted the worker was  
diagnosed with a lumbar strain in 2005. X-rays did not show any acute changes at that time. He  
appeared to make a good recovery, and a May 24, 2005 chiropractor chart note indicated the  
worker returned to work on that date and there were no problems. There were no further  
treatments for a low back condition until November 2006. In the four months previous to  
Dr. Mason’s opinion, the worker had had at least three reported incidents that preceded  
increases in back symptoms. Dr. Mason considered it was less than 50% likely that the worker’s  
current low back condition was a result of the compensable 2005 soft tissue injury.  
[82]  
By decision letter of September 2, 2010, the case manager denied reopening of the worker’s  
claim. Among other matters, the letter referred to the contents of the April 7, 2005 chart note  
and the other chart notes referred to in the August 19, 2010 request for a clinical opinion. The  
case manager stated it was less than 50% likely that the worker’s current low back condition  
was a result of his 2005 soft tissue injury and more likely related to the recent incidents noted in  
the chiropractic records.  
[83]  
[84]  
With the assistance of a workers’ adviser, the worker requested a review of the September 2,  
2010 decision.  
On November 16, 2010 the Board received two requests for disclosure of the worker’s claim file  
signed by the worker. They appear to be identical, save for the fact the first request is simply  
dated 2010 and the second request is dated November 16, 2010.  
[85]  
By letter of November 22, 2010, the Board provided the worker with paper copies of his claim  
file documents.  
14  
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:  
A2101852 (June 14, 2022)  
[86]  
[87]  
[88]  
It appears the requests for disclosure were processed separately, in that by letter of  
December 13, 2010 the Board advised the worker it had processed his request for disclosure  
and that no new information had been added to his claim file since he last received disclosure.  
By letter of March 8, 2011, a workers’ adviser submitted to the Review Division 57 pages of  
documents from the worker. By a second letter dated March 8, 2011, the workers’ adviser  
submitted a submission from the worker.  
While I do not propose to summarize all 60-plus pages of the worker’s documents, I consider it  
appropriate to note some information in those documents:  
In the first submission, the worker asserted that in the accident he dropped around 16 feet,  
landing on his feet, with his work boots tied, saving his ankles. His legs folded up and he  
landed on his tailbone and back. After collecting himself and calling for help with no answer,  
he made his way outside and sat on a trailer fender until his boss returned from lunch. His  
boss told him he did not need an ambulance. He was in shock and extreme pain and  
somehow made it home, where he stayed on his bed until getting to the only place  
accessible on March 29, 2005. After six weeks of chiropractic treatment, rest, and doctor  
visits, he returned to work.  
A 25-page December 8, 2006 functional capacity report documented in detail the worker’s  
functional abilities and limitations. One and a half years earlier, the worker fell approximately  
12 feet off of a ladder and collapsed his spine. After he fell off the ladder, he saw a  
chiropractor every day for about two or three weeks. He had seen a chiropractor the day  
before the November 24, 2006 functional capacity evaluation and assessment date as he  
“needed a tune up.” He advised the author of the functional capacity evaluation report he  
“felt great this morning” after his treatment the day before.  
The worker’s current symptoms/difficulties involved his left shoulder, left hip, left knee, left  
ankle, and hands. There was no reference to back symptoms or difficulties. His primary  
barrier to working was his left shoulder pain. The only other thing stopping him from working  
appeared to be the absence of a driver’s license.  
Page 14 of the report documents the worker’s spinal function. No physical difficulties were  
evident on spinal range of motion, repetitive back flexion, or sustained spinal flexion.  
Of interest, the functional capacity evaluation report documented that 15 years earlier the  
worker was assaulted when he was kicked in the back by someone wearing steel toe boots.  
Approximately one month later, he was crushed by a falling tree, which broke his left fibula,  
tore the cartilage in his left knee, and damaged his left hip. In between the time of his  
assault and the accident with the tree, he experienced severe back pain and was told by  
doctors that he would never walk again. It was later determined in September 2001 that he  
had a tumour on his spinal cord, and, subsequently, the tumour was removed. He was able  
to walk again following the removal of the tumour, and his back pain resolved.  
15  
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:  
A2101852 (June 14, 2022)  
In a December 6, 2010 typewritten letter, Dr. Repsch indicated that the worker “recently  
complained of recurring low back pain.” He began seeing the worker with “one or two of  
these episodes each year since April of 2005.” Dr. Repsch said he saw the worker in April  
2005 as a result of work-related injury. The worker “usually responds well to treatment, but  
over time the back pain seems to recur.”  
As for whether there was a causal link between the 2005 injury and the worker’s recurring  
back problems, Dr. Repsch stated as follows:  
He wonders if the injury of 2005 could be the precipitating factor for this  
chronic recurrent problem. To this I can only say it is possible. To make a  
more definitive statement, extensive imaging and examination by specialists  
would be required.  
Dr. Repsch’s December 6, 2010 letter was accompanied by a typewritten list of appointment  
dates. The list is notable for a gap between May 26, 2005 and November 3, 2006. There are  
other gaps between December 27, 2006 and August 27, 2007; November 8, 2007 and  
April 29, 2008; and October 27, 2008 and April 28, 2010.  
Hospital documents from late 2010 establish that on October 13, 2010, the worker  
underwent a nuclear medicine bone scan for diffuse skeletal pain. The radiologist  
commented that whole body imaging demonstrated homogenous uptake throughout the  
skeleton without any significant bony or joint abnormalities. No significant abnormalities  
were demonstrated. Also included are December 7, 2010 and December 28, 2010  
emergency department physician assessment and treatment records.  
In a Ministry of Housing and Social Development medical report regarding persons with  
persistent multiple barriers dated “12 / Oct/11” (or more likely 12 / Oct/ 10, given that the  
form refers to awaiting a bone scan on “13. 10. 10.”—seemingly a reference to October 13,  
2010), Dr. Hosie indicated the worker’s primary medical condition was musculoskeletal pain  
with an October 6, 2006 onset. Dr. Hosie indicated the condition existed for five or more  
years, it was permanent, and it made it difficult for the worker to work due to pain.  
In a January 5, 2011 handwritten note on a prescription pad (dated “5.1.11”) Dr. Hosie  
indicated that between May 2009 and September 2009 the worker had a pilonidal cyst  
removed. The cyst caused “back pain tailbone area.”  
In a February 11, 2011 handwritten note on a prescription pad (dated “11/2/11”) addressed  
to the case manager in response to the September 2, 2010 decision, Dr. Hosie stated that  
the questions posed to him were, as the case manager well knew, impossible to answer with  
any degree of certainty. At the very least, the case manager should have the worker  
assessed by a Board physician. The worker could not afford a private medical-legal opinion.  
16  
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:  
A2101852 (June 14, 2022)  
The case manager’s letter made it impossible for the worker to appeal the case manager’s  
decision.  
In a February 28, 2011 handwritten note, Dr. Hosie states he thought it was “probable  
(> [greater than] 50%) that the 2005 injury caused some damage to the lumbar discs,  
ligaments etc.” This damage had persisted, causing the worker’s current symptoms, which  
made employment very difficult or impossible in the worker’s previous occupation or most  
employment. He added that x-rays showed some disc disease.  
Included in the worker’s submission is a printout of office visits the worker had with Dr. Hosie  
or other physicians at the clinic. There are notable gaps between April 7, 2005 and  
January 15, 2006; January 15, 2006 to October 16, 2006; March 20, 2007 and March 22,  
2008; and October 26, 2008 and May 27, 2009.  
Also included in the submission is a printout of prescriptions for medications for the period  
between April 3, 2005 and October 12, 2010. There are notable gaps between May 13,  
2005 and November 11, 2006; March 20, 2007 and July 14, 2008; and October 27, 2008  
and August 27, 2009.  
The worker’s submission includes a number of letters from his friends attesting to his  
challenges in attending to the activities of daily living. In particular, one letter indicates that  
after the accident at work, the worker had a hard time getting around and was unable to  
work as he could before the accident. He suffered pain on a daily basis.  
As in the case of his first submission, the worker’s second submission includes his  
statements as to his work history and his various symptoms over the years. Included in  
those statements is an assertion by the worker that he spoke with the case manager from  
the Board shortly after returning to work in 2005. Thus, he apparently confused the case  
manager with whom he spoke in 2010 with the entitlement officer with whom he spoke in  
2005.  
Also of note, his second submission refers to his having been assaulted by a foreman  
employed by the employer. According to the worker, the foreman assaulted him and threw  
him to the ground, where the worker landed on his tailbone. The police were called. It  
appears that this event occurred subsequent to his buying a boat on which to live and his  
being on social assistance as he was not fit to work for eight months.  
April 7, 2011 Review Division decision denying reopening of the claim  
[89]  
In an April 7, 2011 decision, a review officer denied reopening of the worker’s claim. She stated  
the evidence showed that following the March 2005 work incident, the worker returned to work  
without problems, according to the last chiropractic chart note of May 26, 2005. There was no  
further medical evidence that the worker’s strain injury persisted after his return to work. While  
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:  
A2101852 (June 14, 2022)  
she stated that 18 months later, in October 2006, a medical application for Employment  
Insurance benefits indicated the worker had had musculoskeletal pain for over five years, I  
consider she misinterpreted Dr. Hosie’s form referred to above which, while documenting  
musculoskeletal pain with an onset of October 2006, was dated October 12, 2010 and referred  
to provincial benefits rather than federal benefits. She noted the worker’s attendances with his  
healthcare professionals following further incidents.  
[90]  
The review officer found the conclusions of Drs. Repsch and Hosie in their opinions dated  
December 6, 2010 and February 28, 2011 to be speculative and unexplained. She considered  
those opinions did not support a conclusion that the worker’s compensable lumbar strain  
significantly changed or recurred after his return to work in May 2005. Moreover, she noted the  
worker’s current symptoms for which he requested reopening in July 2010 followed a further  
March 2010 slipping incident on a dock that was not work-related. She preferred Dr. Mason’s  
opinion. She found the evidence did not support a relationship between the worker’s 2010  
symptoms and the accepted lumbar strain of five years earlier.  
[91]  
While the worker sought to appeal the Review Division decision to WCAT, his notice of appeal  
was filed late. By decision of December 7, 2011, a WCAT panel denied the worker’s request for  
an extension of time in which to appeal the April 7, 2011 decision.  
2012 request to reopen the claim  
[92]  
[93]  
Subsequent to the issuance of the WCAT decision, there was no further activity on the claim file  
until September 13, 2012, when the Board received the worker’s September 13, 2012  
application for compensation, accompanied by a three-page handwritten note.  
As opposed to documents from 2005 which referred to the incident having taken place at  
1:00 p.m. or later, the worker’s September 13, 2012 application stated that the incident occurred  
at 10:30 a.m. As opposed to his suffering a fall of 10 to 12 feet, the worker stated that he  
“droped 18 feet landing on concrete sloped floor at just under estiamate 120 miles per hour  
[capitalization modified].”  
[94]  
[95]  
The worker last worked on June 21, 2010 and he was on full disability benefits. He listed the  
names of various healthcare professionals who treated him.  
In December 2012 the Board received an October 15, 2012 request for disclosure from the  
worker. By letter of December 20, 2012, the Board advised the worker that a disclosure  
package of the claim had been sent to him under separate cover.  
[96]  
In early January 2013, the Board received approximately 130 pages of documents from the  
worker. As not all of the documents are relevant, it is not necessary to summarize all of them.  
Further, some of the documents are copies of documents earlier received on file. The  
documents include several years of chart notes, consultation reports, lab tests, and reports  
concerning diagnostic imaging. Below, I highlight some of the more notable documents:  
18  
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:  
A2101852 (June 14, 2022)  
A February 7, 2001 letter Dr. Leal, who appears to be a urologist, noted he assessed the  
worker regarding blood in his urine. He remarked, in a report that predates the worker’s  
March 26, 2005 injury by a number of years, that the worker had “some chronic back pain  
secondary to trauma.”  
Notably, while a printout of office visits to Dr. Hosie and other physicians at his clinic referred  
to above seem to suggest that the worker did not see Dr. Hosie or any one of those  
physicians between April 7, 2005 and late 2006 (which did not acknowledge an attendance  
on April 19, 2005 reflected in a package of chart notes received by the Board on April 20,  
2005), a chart note for April 28, 2005 was included in the package of documents received in  
January 2013.  
In an August 4, 2009 report, Dr. M. Brown, a general surgeon, noted that the worker  
reported getting uncomfortable in association with sitting while performing a lot of travelling  
lately. Pain in his tailbone had been “going on for about two months.” The worker reported  
finding a hole and being able to extract “a piece of hard material about the size of a pea.”  
The opening then closed, but then recurred. This became painful. He had been able to dig  
out three pieces of solid material from the same wound, and each time it seemed to help it  
settle down.  
Dr. Brown reported that examination of the pilonidal area showed a small opening, with no  
evidence of any further mass. It appeared to be closing and was not inflamed. He remarked,  
“It is directly over his coccyx, which is almost subcutaneous.” Dr. Brown did not think that  
anything needed to be done because the worker may have evacuated what was present.  
Dr. Brown remarked, “It may well have been a sebaceous cyst with some solidified  
sebaceous material.” He remarked that he would see the worker again in two weeks to  
make sure the matter had settled.  
In an August 23, 2009 chart note, Dr. Burke noted that the worker had undergone coccyx  
surgery on Thursday. His impression was that of postoperative pain.  
In a November 24, 2009 employability medical report prepared for the Ministry of Housing  
and Social Development, Dr. Hosie indicated the worker had musculoskeletal pain which  
made it difficult for the worker to perform manual labour. He was only capable of light duties,  
at best.  
A May 8, 2011 lumbar spine x-ray was performed owing to lumbar pain and left leg pain.  
Degenerative disc disease was queried. The radiologist indicated there was no compression  
fracture or other acute finding. There was mild disc space narrowing between L2 and L4.  
Mild degenerative change of the lumbar facets was noted.  
Physiotherapy records document treatment for the period from September 13, 2011 to  
January 12, 2012. The September 13, 2011 chart note records that six years earlier, the  
worker fell off a broken step on a ladder. He had never been the same since. The worker  
attended Dr. Repsch for maintenance. A “January 5, 2011” (likely January 5, 2012)  
handwritten letter from Ms. O, one of the physiotherapists who treated the worker for  
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:  
A2101852 (June 14, 2022)  
mechanical back pain, stated that a scooter would be of great benefit to the worker. A  
January 17, 2012 handwritten letter from Ms. O noted the worker stated he had had back  
problems as a result of a fall off a ladder six years earlier. She noted the worker’s various  
spinal/sacroiliac issues and stated that the “mechanical lesions are not uncommon in an  
adult population.” The worker’s spinal extensor muscles were extraordinarily tight. She  
added, “I can not say if any of these issues noted are a DIRECT result of his accident  
6 years ago.”  
A November 15, 2011 left hip x-ray was performed owing to a recurrence of left hip pain.  
The worker had a history of a 20-foot fall associated with a hip fracture. The x-ray was  
performed to rule out bony pathology. The radiologist indicated the alignment of the left hip  
was unremarkable. There was no fracture, dislocation, erosions, degenerative change or  
aggressive osseous lesion. No specific radiographic features of advanced stress fracture or  
a vascular necrosis were detected.  
A December 21, 2011 CT scan of the left hip was performed owing to persistent left hip  
pain. The radiologist indicated that no fracture of the lower left hemipelvis or proximal left  
femur was shown. Left hip joint space was normal in appearance. Soft tissues within and  
around the pelvis were unremarkable.  
In what appears to be a document dated January 4, 2012 (rather than April 1, 2012, given  
the subject matter), Dr. Hosie raised the issue of whether the worker should be considered  
for a scooter in light of his chronic back pain and tailbone pain.  
Physiotherapy records for the period between February 26, 2012 and November 20, 2012  
document treatment by Mr. M, a physiotherapist.  
An April 5, 2012 x-ray of the sacrum and coccyx was performed owing to long-standing  
tailbone pain. The radiologist indicated there was normal alignment and no acute fracture or  
dislocation identified. As well, no lytic or sclerotic lesions were identified.  
In a June 6, 2012 letter to Mr. M, Dr. Church, an osteopathic physician, noted he saw the  
worker on June 5, 2012. The worker explained he had been having ongoing pain in the  
region of his coccyx. Apparently, he fell 15 feet from a ladder in 2005 and landed on a  
concrete floor, injuring this region. The worker stated that at one point he had a defect in the  
skin in this region and pulled out three pieces of bone that were about the size of a pea.  
Dr. Church remarked that physical examination, other than showing some scarring of the  
skin over the coccygeal region, did not demonstrate any significant malalignment of the  
sacrum or coccyx.  
Dr. Church stated that a review of x-rays dated April 5, 2012 showed some “DJD  
[degenerative joint disease] changes of the sacro-coccygeal joint and posterior spurring of  
the distal aspect of the coccyx.” There was no significant coccygeal displacement.  
Dr. Church stated, “Interestingly there are some lytic lesions of the coccyx which would be  
consistent with his explanation of having pulled some bone chips out of this region.”  
20  
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:  
A2101852 (June 14, 2022)  
A September 17, 2012 a nuclear medicine bone scan was performed owing to an old sacral  
injury with persistent severe back pain and negative routine x-rays. The radiologist stated  
that planar views demonstrated increased uptake involving the mid–and to a lesser extent–  
lower lumbar spine, as well as overlying the sacroiliac regions bilaterally. Subtle abnormality  
was seen overlying the ischium.  
The radiologist remarked that SPECT-CT3 imaging was obtained for further evaluation. That  
imaging confirmed increased uptake at the L3-4 disc consistent with degenerative arthritic  
change. Mild facet uptake was seen at that level as well. He added, “The uptake overlying  
the sacroiliac regions was confirmed to be artifact as is that overlying the hip.” In the  
“Impression” section of the report, the radiologist stated, “There is moderate increased  
uptake in the mid lumbar spine consistent with spondyloarthropathy.”  
[97]  
In a March 7, 2013 case manager review memorandum, the case manager who issued the  
September 2, 2010 decision documented a lengthy summary of information on the claim file. He  
documented, among other matters, that when the ladder broke the worker jumped ten feet and  
landed on his feet without falling. He again referred to the contents of Dr. Hosie’s April 7, 2005  
chart note.  
[98]  
[99]  
In his March 7, 2013 request for a clinical opinion, the case manager included information found  
in his review memorandum including such information as that involving the mechanism of injury  
and contents of Dr. Hosie’s April 7, 2005 chart note. He asked whether the further information  
submitted by the worker caused Dr. Mason to revise her earlier opinion.  
In her March 19, 2013 response, Dr. Mason indicated there was no new objective evidence to  
support that the worker’s current back complaints were due to the compensable incident of  
2005. There was no new evidence that would lead her to alter her earlier opinion.  
[100] In support of her conclusion, Dr. Mason documented the following analysis regarding the results  
of imaging and her contesting Dr. Church’s comments regarding the worker’s description of  
pulling bone chips from his coccyx:  
At time of compensable incident in 2005 the worker had early evidence of  
L3/4 disc space narrowing with no acute findings subsequent to incident.  
In 2011, 6 years later, there was some progression of changes; however,  
nothing to suggest that the fall in 2005 had precipitated any change in the  
progression of degenerative changes. It has been noted that the worker has  
subsequently had other falls or incidents after which he reported back symptoms.  
Bone scan in 2010 did not show evidence of any active areas in spine,  
while in 2012 there was evidence of spondyloarthropathy – this suggests  
that the worker’s current back condition is due to events or changes more  
recent than 2010. Imaging does not support that the worker sustained any  
3
single photon emission computed tomography CT scan  
21  
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Tel: (604) 664-7800 | 1-800-663-2782  
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WCAT Decision Number:  
A2101852 (June 14, 2022)  
fractures in 2005 incident – noting negative left hip CT in Dec 2011 and  
negative x-ray of sacrum/coccyx in 2012. Worker’s reports of ‘bony chips’  
pulled out of coccyx area are consistent with solidified sebaceous material and  
issues due to pilonidal cyst; Dr. Church’s comments that there are x-ray  
findings to support worker’s description of pulling bone chips out from  
coccyx are not consistent with the radiologist’s reporting of the imaging,  
and overall do not make medical sense.  
[italics in the original; emphasis added]  
[101] In his March 20, 2013 decision, the case manager stated there was no new evidence, medical  
or otherwise, that would lead him to change the September 2, 2010 decision upheld by the  
Review Division. His summary of the evidence on file noted the mechanism of injury described  
in his review memorandum and the request for a clinical opinion. As well, he noted the contents  
of Dr. Hosie’s April 7, 2005 chart note. He quoted the paragraph from Dr. Mason’s opinion  
quoted above.  
[102] In a March 27, 2013 letter addressed “To Whom It Made Concern,” Mr. M noted he had treated  
the worker for symptoms that the worker attributed to a fall from a ladder in 2005. He noted that  
at each treatment session the worker complained of coccygeal pain. Low back pain was a  
frequent complaint. He noted the results of Dr. Church’s assessment.  
Request for review regarding the denial of a 2012 reopening of the claim and a denial of other  
injuries having been due to the March 26, 2005 work incident  
[103] The worker’s submitted a request for review of the March 20, 2013 decision. A June 25, 2013  
letter from a lawyer advised that his firm had been retained to represent the worker. The lawyer  
asked for full disclosure of the worker’s claim in paper format.  
[104] By letter of July 3, 2013 the law firm was provided with copies of the claim file documents.  
[105] The law firm made an August 23, 2013 submission to the Review Division. The submission  
asserted that the worker was injured when he fell 12 feet from the ladder, “striking his tailbone.”  
The worker reported he had been “experiencing ongoing and continuous low back and  
coccygeal symptoms ever since the 2005 work injury, and it is his position that his current back  
disability is directly related to the work accident.” The submission added, “Since 2005, [the  
worker] has experienced periods during which his symptoms were better or worse, but the  
underlying cause of his low back disability remains the 2005 work injury.” In addition to citing  
various documents already on the claim file, the submission provided a copy of the worker’s  
August 11, 2013 email to the law firm and a copy of the worker’s June 26, 2013 application for  
Canada Pension Plan disability benefits.  
22  
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Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A2101852 (June 14, 2022)  
[106] In his August 11, 2013 email, the worker described the mechanism of injury as his dropping  
12 feet, followed by his hitting his tailbone:  
Having no musel tention now in my legs ,my feet hit the floor and my legs  
having no resistance i colapse on the floor tearing my face mask off ,hitting my  
tailbone ,with the shock going directly up my spine as I colapse on the floor  
falling backwards.  
[107] The worker described his supervisor denying his request for an ambulance. After making his  
way home on Saturday, the worker “passed in and out for 3 days not eating.” On Tuesday  
(which would be March 29, 2005) he made his way to the clinic. He stated that after his  
first attempt to return to work, Dr. Hosie suggested he try chiropractic treatment. The worker  
described events following his return to work. He stated he stopped working due to his accident  
at work.  
[108] The worker’s June 26, 2013 application for Canada Pension Plan disability benefits identifies  
Dr. R. Brown (a family physician rather than Dr. M. Brown, the specialist noted earlier) whom he  
first saw in August 2012. He saw Dr. R. Brown because of “severe back pain” and “removal of  
tailbone [capitalization modified in quotes].” (Given that later in the form the worker indicates he  
was waiting to see a surgeon about removing his damaged tailbone, I do not interpret his  
reference to “removal of tailbone” to mean he had undergone such a removal.) As of June 20,  
2010, he could no longer work because of his medical condition.  
[109] In the medical section of the worker’s application for Canada Pension Plan disability benefits  
completed on June 21, 2013, Dr. R. Brown indicated the worker had chronic back and sacral  
pain from an old injury. He noted the worker injured his back in a work-related fall about  
nine years earlier. The worker had decreased range of motion in the lumbar spine area and  
chronic coccygeal pain.  
[110] In a November 7, 2013 telephone memorandum, a review officer documented that he spoke  
with a lawyer at the law firm representing the worker. The review officer pointed out that as of  
March 2013, it was not possible for the Board to reconsider its September 2, 2010 decision as  
both 75 days had passed since that decision and the Review Division had confirmed the  
Board’s decision. He stated he might look at the matter as a reopening of the claim.  
[111] In his November 15, 2013 decision, the review officer found the Board did not have the ability to  
reconsider its September 2, 2010 decision. He stated that the March 20, 2013 decision also  
addressed whether the 2005 fall precipitated changes in the worker’s degenerative condition  
and whether the worker sustained any fractures. The review officer found the Board had the  
ability consider a new period of reopening that had not been addressed in prior decisions and  
that it was open to the Board to consider whether the worker’s fall precipitated changes in his  
degenerative condition. The review officer indicated he would consider both of those questions  
in relation to the worker’s request for further benefits.  
23  
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Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A2101852 (June 14, 2022)  
[112] Regarding the matter of a reopening, the review officer noted the 2010 denial for a reopening  
and that the worker’s 2010 symptoms closely followed non-work incidents.  
[113] The review officer concluded that, given the earlier Review Division decision and the latest  
evidence provided by the worker, he was unable to connect the 2005 compensable strain to the  
worker’s symptoms in 2012. If the worker was not entitled to a reopening in 2010 for his  
symptoms at that time and those symptoms continued to 2012, the review officer could not  
relate the 2012 symptoms to the 2005 injury. As a result, he found the worker was not entitled to  
a reopening of his 2005 claim for a low back strain.  
[114] Turning to the issue of whether the worker’s low back symptoms were related to another  
condition arising from the work incident, the review officer stated that the first question he must  
address was the appropriate diagnosis for the worker’s condition. He concluded that the only  
condition other than a low back strain demonstrated by the worker was a progression in his  
degenerative changes. He indicated he would therefore consider whether the progression of  
those changes was sufficiently related.  
[115] The review officer noted Dr. Mason’s observation that, while the 2010 bone scan did not show  
any active areas, in 2012 there was evidence of spondyloarthropathy, which suggested the  
worker’s back condition was due to events or changes more recent than 2010. The review  
officer found that opinion compelling as Dr. Mason referenced the radiological findings and  
discussed why they were inconsistent with the work injury. He considered Dr. Mason’s opinion  
was consistent with the earlier denial of a reopening of the worker’s claim which referenced the  
lack of continuity of symptoms between 2005 and 2010 and the occurrence of the  
non-compensable incidents which preceded the onset of symptoms in 2010.  
[116] The review officer acknowledged the opinions of various healthcare professionals cited by the  
law firm. The review officer considered the opinions were non-specific on the issue of causation  
but essentially noted the worker’s current symptoms and the fact the worker suffered a work  
injury in 2005. He considered it notable that none of the opinions discussed the fluctuation in  
symptoms since 2005, the radiological findings, and the occurrence of other incidents in 2010.  
[117] The review officer found he could not relate the worker’s back condition in 2012 to the 2005  
work incident.  
Appeal to WCAT regarding the denial of a 2012 reopening of the claim and the denial of other  
injuries having been due to the March 26, 2005 work incident  
[118] With the assistance of the law firm which represented him in his request for review, the worker  
appealed the Review Division decision to WCAT. The notice of appeal asked that the appeal  
proceed via an oral hearing. The law firm stated that oral evidence was needed regarding the  
nature and extent of the worker’s disability.  
24  
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Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A2101852 (June 14, 2022)  
[119] By letter of January 15, 2014, a WCAT assessment officer indicated she had granted the  
request for an oral hearing.  
[120] The worker’s accident employer indicated it wished to participate in the appeal.  
[121] By letter of March 6, 2014, the parties were advised of an oral hearing scheduled for April 28,  
2014.  
[122] By letter of March 20, 2014 addressed to the law firm, WCAT confirmed that, further to the firm’s  
request, the oral hearing scheduled for April 28, 2014 had been postponed. A new hearing  
would be scheduled at a later date.  
[123] By letter of March 27, 2014, the parties were advised of an oral hearing scheduled for June 23,  
2014.  
[124] By letter of May 6, 2014, the law firm submitted to WCAT a copy of an April 16, 2014  
medical-legal opinion from Dr. Tarazi, an orthopaedic surgeon, along with a copy of the law  
firm’s March 20, 2014 letter to Dr. Tarazi requesting his opinion. The March 20, 2014 letter listed  
numerous documents which accompanied it. Of interest, while the March 20, 2014 letter was  
accompanied by the reports of radiologists regarding the April 9, 2005 x-ray, the May 8, 2011  
x-ray, and the September 17, 2012 bone scan, it was not accompanied by copies of the reports  
regarding the October 13, 2010 bone scan or the April 5, 2012 x-ray. In addition to other  
documents prepared by healthcare professionals, it was accompanied by copies of  
Dr. Gershman’s May 17, 2005 consultation report and the September 1, 2010 and March 9,  
2013 clinical opinions of Dr. Mason.  
[125] By letter of June 9, 2014 addressed to WCAT, the law firm representing the worker stated,  
“Please be advised that [the worker] now wishes to proceed with the above-noted appeal by  
way of written submissions. We respectfully request, on behalf of [the worker], that the June 23,  
2014 oral hearing be cancelled and that we be provided with a deadline for written  
submissions.”  
[126] By letter of June 11, 2014, WCAT stated that the panel assigned to the appeal had granted the  
law firm’s request. The oral hearing was cancelled. The appeal would proceed by way of written  
submissions. The worker’s submissions were due by July 2, 2014.  
[127] By letter of July 2, 2014, the law firm asked for an extension of time to provide written  
submissions. The author of the letter indicated, “Further evidence and information is required  
from [the worker] in order to prepare submissions.”  
[128] By letter of July 4, 2014, WCAT granted the request for an extension of time in which to provide  
submissions was granted. Submissions were due July 16, 2014.  
[129] On July 16, 2014 WCAT received the law firm’s July 16, 2014 written submission.  
25  
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:  
A2101852 (June 14, 2022)  
[130] By letter of July 18, 2014 addressed to the employer, WCAT noted it had received a July 16,  
2014 submission. Any submission from the employer was due August 8, 2014.  
[131] By letter of August 15, 2014 addressed to the law firm, WCAT advised it had not received a  
submission from the employer. Submissions were declared complete.  
The November 5, 2014 WCAT decision denying a 2012 reopening of the claim and denying  
other injuries having been due to the March 26, 2005 work incident  
[132] In her decision, the WCAT panel noted that another WCAT panel granted the request to have  
the appeal changed from being heard by an oral hearing to proceeding by written submissions.  
The panel agreed that the appeal could be determined on the basis of written submissions. She  
stated, “The appeal involves the application of the law and policy to the medical evidence and  
facts from 2005 which are well documented on the claim file.”  
[133] The panel stated that the issues on appeal were whether the claim should be reopened in 2012  
for benefits for the 2005 low back strain or whether the claim should be accepted for any other  
injury. She agreed with the review officer that the issue was not whether there was significant  
new evidence to warrant a change in the April 7, 2011 Review Division decision4. She noted  
that WCAT denied the worker’s request for an extension of time to appeal that decision. That  
meant that the April 7, 2011 Review Division decision was final, and neither the Board, the  
Review Division nor WCAT in that appeal had jurisdiction to change it.  
[134] In paragraphs #11 through #47, the panel summarized the history of the claim. In particular, in  
paragraphs #12 and #13 the panel summarized the contents of the worker’s report of injury and  
the worker’s application. In paragraphs #14 and #15, the panel summarized evidence provided  
by the employer as documented in the April 15, 2005 memorandum summarized earlier in my  
decision.  
[135] Regarding the issue of a 2012 reopening of the claim, the panel noted that what was then  
subsection 96(2) of the Act indicated a claim could be reopened if there had been a significant  
change in a compensable medical condition or a recurrence of an injury. The panel stated that  
the issue in the appeal was not whether there had been a significant change in a compensable  
condition: no permanent compensable condition had ever been accepted under the claim. The  
Board had accepted only a low back strain. While it had never issued a formal decision letter,  
the Board effectively determined the strain resolved in May 2005 when it terminated wage loss  
benefits without referring the claim to what was then the Disability Awards Department. The  
4
I consider the vice chair may have misperceived matters in that the issue addressed by the Board in its  
March 20, 2013 decision was not whether there was significant new evidence to warrant a change in  
the April 7, 2011 Review Division decision but whether there was evidence to warrant a change in the  
Board’s September 2, 2010 decision which had been confirmed in the April 7, 2011 Review Division  
decision. I appreciate that this is a narrow distinction, but I consider it is a real, albeit minor, one.  
26  
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Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A2101852 (June 14, 2022)  
panel stated that the only basis for a reopening would be a recurrence of the 2005 low back  
strain.  
[136] The panel observed that the April 7, 2011 Review Division decision accepted the opinion of  
Dr. Mason that it was less than 50% likely the worker’s low back condition in 2010 was a result  
of the compensable 2005 soft tissue injury. The panel noted that the Review Division decision  
remained binding, as it had never been changed by WCAT on appeal.  
[137] The panel noted that in the November 15, 2013 Review Division decision on appeal regarding a  
2012 reopening, the review officer reasoned that if the claim was not reopened for low back  
symptoms in 2010 and the same symptoms continued into 2012, the claim could not be  
reopened in 2012. The panel stated, “I completely agree.” She concluded that the worker’s 2005  
low back strain did not recur in 2012, and he was not entitled to a reopening of his claim in 2012  
for benefits for the accepted 2005 low back strain.  
[138] Regarding acceptance of any other injury occurring as a result of the work incident, the panel  
noted that, based on the April 16, 2014 medical-legal opinion of Dr. Tarazi, the worker argued  
that the 2005 work incident resulted in several injuries other than the back strain accepted by  
the Board. In paragraphs #48 through #56, the panel summarized Dr. Tarazi’s opinion:  
[48]  
For this appeal, the worker’s representative requested a medical-legal  
opinion from orthopaedic specialist, Dr. F. Tarazi. In his report, Dr. Tarazi  
says when he examined the worker on April 16, 2014 he provided the  
following history. When the ladder broke, the worker lost his balance. He  
kicked the ladder from underneath himself and landed on the ground. He  
landed on his feet and then his tailbone and his back. He crawled to a  
wall so that he could push against something to get up. He got out of the  
shop and waited for about thirty minutes until his boss returned. His boss  
saw him in pain but did not do anything and walked away. The shop was  
in a remote area and the worker managed to find a bicycle that he rode  
for about half a mile before he could get to the town. He then went home.  
He did not have a cell phone so he could not call an ambulance. The  
accident happened on a holiday long weekend so he could not see a  
doctor. It was too far for him to ride his bicycle to a hospital. The worker  
said he stayed home until the following Tuesday before he could walk far  
enough to get to a walk-in clinic. He was treated conservatively for his  
injury with painkillers and physiotherapy.  
[49]  
The worker told Dr. Tarazi he did not experience any improvement in his  
condition with the treatments and continued to have low back pain and  
pain around the tailbone and coccygeal area which was most severe.  
The worker said his condition stayed the same until around 2009 when he  
noticed bone fragments coming out of his coccygeal region. He saw a  
surgeon who thought it was a cyst. The cyst was eventually removed  
27  
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:  
A2101852 (June 14, 2022)  
surgically which apparently was quite painful to him. The worker said he  
had continued to experience severe pain in his lower back and coccygeal  
area.  
[50]  
Dr. Tarazi noted the worker had suffered multiple lower back injuries  
since 2005 including jumping off his boat in 2007, slipping on the dock in  
the spring of 2010 and falling in his boat in July 2010. The worker said he  
was off work for about two months after the injury in 2005. He quit his job  
and moved to Alberta where he tried to work as a welder. He was not  
able to do this and returned to British Columbia. He worked in pain for the  
injury employer for another two years. In 2010, his pain increased  
significantly and he applied for Canada Pension Plan disability benefits.  
The worker said he moved onto his boat in 2009 as he found it easier to  
live there.  
[51]  
Dr. Tarazi noted the worker had a crush injury to his left leg at age 16 and  
suffered a fibula fracture which was treated conservatively. He was also  
assaulted and kicked on his left buttock sixteen years ago which had  
caused ongoing pain in his left thigh. A bladder tumour was diagnosed in  
1999. He had been taking hydromorphone and medical marijuana for  
pain for the previous two years. Dr. Tarazi did a physical examination of  
the worker and gave a full report on the worker’s current physical  
condition and functional restrictions and limitations.  
[52]  
[53]  
Dr. Tarazi gives the opinion that the March 26, 2005 work incident caused  
a severe contusion and muscle strain to the low back including the sacral  
and coccygeal areas.  
Dr. Tarazi says this affected the muscles and ligaments of the lower  
vertebral column and caused pain which is still ongoing. He says the  
incident likely caused a fracture of the coccyx. He notes it is quite difficult  
to detect coccygeal fractures on plain radiography which is why the  
original radiographs did not reveal any fractures. He says that  
radiographs centered on the coccyx or a CT scan of that area is required.  
[54]  
Dr. Tarazi, referring to Dr. Church’s report, says the April 5, 2012 x-ray of  
the coccyx showed degenerative changes and lytic lesions which were  
consistent with previous trauma. Dr. Tarazi says the worker likely had a  
fracture of the coccyx with some fragments that eventually surfaced and  
communicated with the opening in the skin. He noted this might also  
have been a pilonidal cyst but this would not generally result in calcified  
fragments hard enough to be mistaken for bone fragments like those the  
worker described. Dr. Tarazi says the bone fragments are more likely  
than not related to the coccyx fracture which eventually lead to the  
degenerative changes and pain.  
28  
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:  
A2101852 (June 14, 2022)  
[55]  
[56]  
Dr. Tarazi says the worker’s low back and coccygeal injury likely rendered  
him more susceptible to further injuries like those in 2007 and 2010. But  
for the 2005 injuries, the worker may not have suffered these further  
injuries in 2007 or 2010 or may have only developed more temporary pain  
after these injuries. Dr. Tarazi says the 2005 injuries rendered the  
worker’s body so deconditioned that he was at much higher risk of further  
injury and an increase in pain.  
Dr. Tarazi gives the opinion that the March 26, 2005 work incident  
resulted in a permanent lumbar strain, a strain of the sacro-coccygeal  
region, post-traumatic degenerative changes and cyst formation in the  
coccyx secondary to a probable coccygeal fracture, activation and  
acceleration of lumbar spine degenerative changes and permanent  
chronic pain.  
[139] In paragraphs #68 through #71, the panel documented her conclusion that the history relied  
upon by Dr. Tarazi bore very little resemblance to the history documented in 2005 at the time of  
the worker’s injury:  
[68]  
[69]  
[70]  
There is a fundamental problem which seriously undermines Dr. Tarazi’s  
entire opinion. That problem is the history upon which his opinion is  
based. Dr. Tarazi took a history directly from the worker in 2014.  
Unfortunately, that history bears very little resemblance to the history  
documented in 2005 at the time of the injury. The most significant  
discrepancy is that the worker told Dr. Tarazi that he fell onto his feet and  
then onto his tailbone and back. However, in 2005, the worker did not  
report falling onto his tailbone or back. The evidence from 2005 is that the  
worker fell and landed only on his feet.  
In 2005 when he filed his claim, the worker said that after he fell he  
finished cleaning up and his back was sore the next morning. In 2014  
when he saw Dr. Tarazi, he made it sound like after he fell he had a hard  
time getting up off the floor and was barely able to make it home. In  
2005, the employer reported the worker volunteered to work on the  
holiday Monday two days after the injury and then worked for over a week  
after the incident. In 2014, the worker gave Dr. Tarazi the impression that  
after he fell he should have immediately been taken to hospital by  
ambulance but the employer refused.  
In 2014, the worker told Dr. Tarazi that his back pain never improved and  
he continued to have back and tailbone pain throughout the time after his  
injury in March 2005 until 2009 when the pain started to get worse.  
However, in May 2005, Dr. Gershman reported the worker said he was  
ready to return to work and had been pain free. There is then a gap in  
the worker’s seeking of medical attention for 18 months from May 2005  
29  
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:  
A2101852 (June 14, 2022)  
until November 2006. Dr. Tarazi does not note this significant gap in  
medical attention. If the worker had continuous ongoing symptoms, there  
is no evidence of his seeking medical attention for them for over a year  
and a half after May 2005.  
[71]  
In 2014, the worker told Dr. Tarazi his pain stayed the same until 2009  
when it started to get worse. However, in August 2009, Dr. Brown  
reported the worker said he had been doing a lot of travelling where he  
had been sitting and had been having pain in the tailbone area for about  
two months. This evidence indicates that the worker’s tailbone pain  
started in the summer of 2009 before the worker saw Dr. Brown.  
[140] In paragraphs #72 and #73, the panel indicated that as she preferred the information from 2005  
over that supplied by the worker to Dr. Tarazi in 2014, she could not place much weight on  
Dr. Tarazi’s opinion. She preferred the opinions of Dr. Mason, which were based on a correct  
understanding of the facts reported in 2005:  
[72]  
Where there is a discrepancy between the information the worker  
provided in 2005 and the information he gave Dr. Tarazi in 2014, I must  
prefer the information from 2005. I am not saying the worker deliberately  
misrepresented the events of 2005 to Dr. Tarazi. I am saying that with  
the passage of time his recollection of the events following the 2005 work  
incident is no longer accurate. His present recollection of what happened  
in 2014 cannot replace the written record based on the information  
provided in 2005.  
[73]  
Given that Dr. Tarazi’s opinion is based on an entirely inaccurate history, I  
cannot place much weight on his opinion. Dr. Tarazi’s understanding of  
the mechanism of injury and the worker’s condition immediately following  
the injury and in the years after the injury is simply not correct. While a  
coccygeal fracture might result from a fall onto the tailbone, this is not the  
mechanism of injury which resulted from the worker’s fall in March 2005.  
[141] In paragraphs #75 and #76, the panel documented her reasons for discounting the comments of  
Drs. Tarazi and Church regarding the worker’s description of pulling bone chips from his coccyx:  
[75]  
I also have difficulty reconciling Dr. Tarazi’s opinion with other medical  
evidence. For example, Dr. Brown said the worker’s tailbone symptoms in  
August 2009 were related to a pilonidal cyst and the worker must have  
been describing pulling out some solidified material from the cyst.  
Dr. Tarazi accepted Dr. Church’s conclusion that the worker pulled out  
bone fragments related to the fracture of his coccyx as this was  
consistent with lytic lesions shown on the x-ray. However, the radiologist  
said there were no lytic lesions and the x-ray showed normal alignment  
and no fracture of the coccyx.  
30  
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Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A2101852 (June 14, 2022)  
[76]  
The Board medical advisor agreed with Dr. Brown that the worker’s report  
of pulling something out of his coccyx area was consistent with solidified  
sebaceous material related to the pilonidal cyst. The Board medical  
advisor said Dr. Church’s comment that there were x-ray findings to  
support worker’s description of pulling bone chips from his coccyx were  
not consistent with the radiologist’s report and overall did not make  
medical sense. I prefer and accept the Board medical advisor’s opinion  
on this point.  
[142] In paragraph #77, the panel remarked that there was no activity on the worker’s claim file for  
over five years after May 2005. She considered that if the worker had suffered a more  
significant injury than a low back strain, it was difficult to understand why five years passed  
before he returned to the Board to request further benefits and acceptance of a more serious  
injury. She noted that the worker sought medical attention for various problems from 2005 to  
2014. She considered Dr. Tarazi was the first physician to suggest the worker fractured his  
coccyx when he fell in 2005. He was also the first physician to say the worker suffered the other  
diagnoses listed in his medical-legal opinion.  
[143] The panel indicated, in paragraph #78, that she was not persuaded the worker suffered any  
injury other than a low back strain as a result of the March 26, 2005 work incident. She  
considered it appeared that in 2010, after at least three other intervening events, the worker  
concluded in his own mind that his back pain was somehow related to his 2005 work injury. She  
stated that, like the Review Division in its April 7, 2011 decision, she found the worker’s low  
back symptoms in 2012, whatever their diagnosis, were not related to the 2005 work incident.  
Post WCAT decision correspondence  
[144] By letter of December 16, 2014, a new lawyer asked the Board for complete disclosure of the  
worker’s claim file on disc. The letter was accompanied by a December 16, 2014 request for  
disclosure signed by the worker.  
[145] By letter of December 19, 2014, the Board advised the new lawyer that disclosure had been  
provided to him under separate cover.  
[146] The Board received a January 6, 2015 disclosure request from the law firm which represented  
the worker as part of his appeal. By letter of January 9, 2015, the Board advised that disclosure  
had been sent to it under separate cover. The law firm made later disclosure requests, and  
disclosures were provided to it.  
[147] On February 5, 2015 the Board received a radiology report regarding coccyx and lumbar spine  
x-rays performed on February 3, 2015 due to persistent pain over the coccyx and a need to rule  
out lytic lesions or deformity. The radiologist indicated that alignment of the lumbar spine was  
normal. Multilevel moderate-severity lumbar disc space narrowing was identified, most severe at  
L2-3 and L3-4, with lower lumbar mild facet arthropathy. No compression deformity or lytic bony  
31  
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Tel: (604) 664-7800 | 1-800-663-2782  
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WCAT Decision Number:  
A2101852 (June 14, 2022)  
abnormality was identified. Regarding the sacrum and coccyx, the radiologist stated there was  
no bony or soft tissue abnormality.  
[148] In a February 26, 2015 telephone memorandum, a manager, Client Services, documented the  
worker’s assertion that he believed he had found missing and fraudulent information on his  
claim. He stated that medical information in the form of physiotherapy notes was missing. He  
stated that the signature on the initial application for compensation was not his. The manager  
stated she reviewed the signatures on the initial 2005 application and the 2012 application, and  
they appeared to be the same. The worker felt they were close, but they were not the same.  
The manager suggested to the worker that WCAT likely did not base its decision on the  
application form but on all the evidence on the claim file.  
[149] In early March 2015 the Board received several pages of documents from the worker:  
The first two pages depict, via stick-figure format, the circumstances surrounding the  
March 26, 2015 incident and the mechanism of injury. In particular, the worker asserted he  
hit the ground with his tailbone.  
In another document, the worker stated he would like copies of medical reports and billings  
from a particular physiotherapy clinic for the period between March 29, 2005 and April 15,  
2005.  
In another document, the worker indicated he been asked by a local RCMP detachment to  
have employer and employee accident reports expedited to their detachment.  
The final two pages of the package were a photocopy of an application for compensation in  
which certain sections were completed in typewritten form. The application appears to be  
the April 11, 2005 application for compensation mentioned at the outset of this decision in  
that the April 11, 2005 application contains the typewritten information but also contains  
handwritten information, seemingly added by the worker before submitting the completed  
application to the Board.  
[150] A March 13, 2015 telephone memorandum documented that the worker advised a customer  
care agent he had recently received disclosure of his medical history and claim history, and he  
had noticed some inconsistencies.  
[151] In April 2015 the Board received over 170 pages of documents from the worker. Many of the  
documents were copies of materials already on the worker’s claim file and many are not  
relevant to issues on the worker’s claim file. Some of the relevant documents were new to the  
claim file:  
In what appears to be an incomplete copy of a multipage form of at least ten pages in  
length, of which Dr. Hosie seemingly completed at least three pages denoted by the word  
“PHYSICIAN” in the footer, Dr. Hosie indicated on August 15, 2010 that the worker had  
“long-standing musculoskeletal injuries/degenerative in nature.” Dr. Hosie indicated the  
32  
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Tel: (604) 664-7800 | 1-800-663-2782  
Fax: (604) 664-7898 | wcat.bc.ca  
WCAT Decision Number:  
A2101852 (June 14, 2022)  
worker had chronic back pain with a 2005 onset associated with a “WCB” (Board) injury. The  
worker also had left shoulder pain associated with an injury in approximately 2000.  
In what appears to be an incomplete copy of a 23-page designation application for persons  
with disabilities associated with the Ministry of Housing and Social Development, of which  
Dr. Hosie seemingly completed four pages denoted by the word “ASSESSOR” in the footer,  
Dr. Hosie indicated on August 17, 2010 that the worker had some pain with the activities of  
daily living listed on page 18.  
In a February 16, 2011 typewritten letter addressed “To Whom It May Concern,” Dr. Hosie  
confirmed the worker suffered from severe physical impairments that greatly impacted his  
daily living. He suffered from chronic back pain and chronic left shoulder pain. The worker  
had had those conditions since 2000/2005 and they were permanent, as Dr. Hosie had  
previously noted. Dr. Hosie described in detail the worker’s fatigue, symptoms, and  
limitations.  
In an October 18, 2012 letter to Dr. R Brown, Dr. Wahl, an orthopedic surgeon, noted an  
October 5, 2012 referral from Dr. Brown for chronic coccydynia. Dr. Wahl recommended that  
the worker receive a full workup, starting with a CT scan.  
In a November 19, 2012 letter Dr. R. Brown noted he had been recently informed that the  
worker had been denied a monthly nutritional supplement by the Ministry of Social Services.  
Dr. Brown noted among other matters, that the worker suffered from musculoskeletal pain  
syndrome, fibromyalgia, osteoarthritis, and degenerative disc disease. Those conditions  
caused him to experience pain, limited mobility, and sub-optimal health.  
A 2015 application for reconsideration of the November 5, 2014 WCAT decision based on  
allegations that certain documents were not included in pre-WCAT decision disclosures and that  
those documents were fraudulent  
[152] On July 7, 2015 WCAT received a July 3, 2015 application for reconsideration of the  
November 5, 2014 WCAT decision. The application was accompanied by copies of the following  
documents:  
the first page of the worker’s report of injury,  
the first page of the employer’s report of injury,  
the one-page letter received by the entitlement officer on April 21, 2005 regarding the  
worker’s work activities following the March 26, 2005 incident, and  
the one-page document showing timecards for the period between March 24, 2005 and  
April 20, 2005 received by the entitlement officer on April 21, 2005.  
33  
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:  
A2101852 (June 14, 2022)  
[153] In the application for reconsideration, the worker asserted, “This evidence was not in the several  
paper disclosures tha[t] my appeals have been based on.”5 He added, “They appeared after  
W-CAT descision [.] They were found on legal councels CD version when concide[r]in[g] a  
judicial review.”  
[154] The worker believed that, when combined, the new evidence proved his employer was  
responsible for criminal offences. He asserted that the timecards were not filled out by him. His  
only entries were eight hours on Thursday, March 24, 2005 and seven hours on Friday,  
March 25, 2005.  
[155] In handwritten documents which accompanied his application for reconsideration, the worker  
stated that the rest of the timecards were filled out by someone else and made to look as if the  
worker did the work. He believed he was paid for 15 hours. He agreed that someone did the  
work, as there was only one person qualified.  
[156] The worker asserted that after the March 26, 2005 accident, he did not leave his room other  
than for doctor appointments. He indicated he was attempting to obtain witness statements that  
confirmed that.  
[157] The worker expanded on his assertion that his employer was responsible for criminal offences.  
He asserted his employer engaged in negligence with intent to harm by walking away and  
leaving the worker alone on the roof of the boat in the paint room. Then after his employer did  
return, his employer refused to call an ambulance after the worker fell 12 feet to a concrete  
floor. He asserted the employer engaged in “fraud with intent, by filling out my documents  
incorrectl[y] without my knoladge [and] by contacting my Dr. and supplying false information  
[capitalization modified].”  
[158] On July 8, 2005 WCAT received a further handwritten letter from the worker. The handwritten  
letter was accompanied by a copy of the photocopy of an application for compensation in which  
certain sections were completed in typewritten form (one of the documents received by the  
Board in early March 2015, as noted above). The handwritten letter was also accompanied by a  
copy of Dr. Wahl’s October 18, 2012 letter received by the Board in April 2015.  
[159] In his handwritten letter, the worker referred to what he considered were “mistakes” in the “new  
documents [capitalization modified in quotes from this letter].” In what appears to be a reference  
to a date of birth of June 25 in the worker’s report of injury, the worker indicated his birthday was  
the 24th not the 25th. He indicated he was quite sure he knew his own birthday.  
[160] The worker indicated that his telephone number was incorrect, which meant no one would be  
able to reach him. He did not refer to a specific document which he indicated contained the  
5
Capitalization has been modified in quotations from the worker's materials received by WCAT on July 7,  
2005 and July 8, 2005. As well, owing to what appears to be the loss of text on right hand side of the  
application associated with photocopying, it has been necessary to infer the existence of certain letters.  
34  
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:  
A2101852 (June 14, 2022)  
incorrect phone number. Notably, both the worker’s report of injury and the employer’s report of  
injury list a telephone number ending in 4670. He did not assert what the correct number would  
have been in 2005.  
[161] In what appears to be a reference to information on the timecards regarding activities performed  
on March 28, 2005, the worker asserted that Zolatone was spelled with a Z rather than with a V.  
In that regard, the work activity listed in the timecards for March 28, 2005 refers to 3 ¾ hours  
and “Volatone.”  
[162] The worker asserted, “A second coppy of my medical records 19/2/15 from Dr. Hosies office  
also found documents that were not in his first coppy - blank med reports from Work-Safe never  
returned.” It is not clear what the worker was referring to.  
[163] The worker asserted that Dr. Hosie would not deal with the Board, but paperwork for the  
worker’s disability was quite complete, stating that his condition was consistent with his 2005  
accident. He indicated he believed the Board had copies of this file.  
[164] The worker apologized for his delay. He indicated he had been dealing with a bad case of  
shingles for the past three months. He hoped that this matter would be given priority, as the  
employer’s negligence had cost him ten years of hardship. He stated that Dr. Tarazi’s report  
should be given credibility.  
[165] In a handwritten letter received by WCAT on July 16, 2005, the worker indicated he still believed  
there was missing information that was relevant. He stated he had tried looking for this  
information with the Board, but it had never been found.  
[166] The worker asserted that at the March 29, 2005 appointment, Dr. Hosie refused to refer the  
worker for x-rays. The worker indicated he was sent to a physiotherapy clinic and saw Ms. O  
(referred to earlier in my decision). He indicated there appeared to be no reports until April 14,  
at which time the worker was told by Ms. O that her treatments were not working. The worker  
indicated he returned to Dr. Hosie, who then sent him to Dr. Repsch. The worker indicated he  
had spoken to Mr. M, the now retired owner of the physiotherapy clinic, who had spent  
considerable time treating the worker. The worker indicated that after leaving Mr. M’s  
physiotherapy clinic, Ms. O retired from a second physiotherapy clinic. He tried contacting  
Ms. O, but he was unable to do so due to privacy issues. The worker noted that he had returned  
to Ms. O between September 2011 and January 2012 until she left for that second  
physiotherapy clinic.  
[167] The worker indicated that the other piece of information he had not been able to find was the  
report by the Board regarding the broken ladder. He knew there was one. He also knew the  
ladder had been destroyed. The worker indicated that that information would prove he fell  
12 feet from a broken ladder and did not receive the medical attention he required.  
35  
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:  
A2101852 (June 14, 2022)  
[168] In a July 21, 2015 letter to the worker, a WCAT legal counsel stated that the narrative  
description addressed to the entitlement officer sent by the worker on April 21, 2005 describing  
the days he worked matched the timecards. The letter stated the worker did not work after  
April 7, 2005, rather than after March 26, 2005 (as asserted by the worker in his materials  
received by WCAT in July 2015). WCAT legal counsel stated he had reviewed all of the material  
on the electronic claim file maintained by the Board and noted that the worker’s most recent  
descriptions of how the accident occurred in 2005 were quite different from the descriptions he  
offered at the time. The difference was pointed out by the WCAT panel in her decision.  
[169] Regarding the worker’s assertion that there were a number of documents that appeared after  
the WCAT decision and were found on the workers lawyer’s disclosure when considering  
judicial review, WCAT legal counsel stated that two sets of documents were received by the  
Board in April 2015 from the worker. He stated it was unclear where the worker obtained the  
documents.  
[170] WCAT legal counsel stated it appeared the evidence referred to by the worker was really not  
new evidence. He indicated the worker must explain why the evidence could not have been  
obtained earlier. The worker also must explain the relevance of the evidence to the issue which  
was decided by WCAT, that is, whether the worker’s 2005 claim should be reopened and, more  
specifically, how it was relevant to the findings made by WCAT regarding the worker’s  
description of the 2005 accident, given it appeared considerably different in recent years when  
compared to the description given by the worker at the time the accident occurred.  
[171] WCAT legal counsel provided the worker with WCAT’s Post Decision Guide, as that might help  
the worker understand how he must address the new evidence and submissions. He indicated  
that the worker might wish to reconsider whether he wanted to proceed with the application for  
reconsideration as he had currently framed it.  
[172] In a telephone memorandum documenting a September 25, 2015 conversation with the worker,  
a case manager responded to the worker’s request that a meeting be scheduled to have a  
discussion as to what could be done about the worker’s issue. The case manager indicated the  
worker needed to respond to the July 21, 2015 WCAT letter as there was nothing the case  
manager could do for him.  
2016 allegations of fraudulent documents and Mr. Bab’s report  
[173] In a March 1, 2016 fax to WCAT legal counsel, the worker stated it had been brought to his  
attention that the “documents in question”6 needed verifying by an expert. The worker indicated  
he had retained an expert who would be sending WCAT a copy of a report.  
6
Capitalization has been modified in quotations from this document. He did not specify which  
documents.  
36  
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:  
A2101852 (June 14, 2022)  
[174] The worker stated that the difference in the description of the accident could now be explained  
as “I have never filled out any accident reports.” He added that a medical report was also blank  
in his medical notes from Dr. Hosie.  
[175] The worker asserted “These documents7 were not in the original disclosure obtained by [the firm  
representing him during the request for review and appeal to WCAT] and can now be verified  
through the Ombudspersons office Victoria.” He asserted, “The additional pages were found  
after W-CAT descision 2014 when I hired [name of lawyer] December 2014 to review my clame  
for posible judicial review.”  
[176] In April 2016 WCAT received a package of documents from the worker. The most notable of the  
documents was a March 7, 2016 report from Mr. Babb, a forensic document examiner. Mr. Babb  
indicated he examined four known pages of handwriting by the worker and compared them to  
three questioned pages of handwriting:  
the March 31, 2005 worker’s report of injury,  
the one-page copy of the timecards, and  
the letter received by the entitlement officer on April 21, 2005.  
[177] Mr. Babb stated it was “my professional expert opinion that because of the poor quality of the  
copies of the [questioned] signatures are undeterminable, however it is likely that the signature  
on [the letter to the entitlement officer] is not authored by [the worker].” It was also his opinion  
that some of the handwriting on the worker’s report and the timecards “are not authored by [the  
worker], marked in red.” (As the copies of Mr. Babb’s report found on the worker’s claim file are  
in black and white, it is not clear what portions of the two documents were marked in red.)  
[178] Mr. Babb’s report is accompanied by two typewritten pages documenting his qualifications and  
copies of two letters from 2010 of individuals, who served as handwriting and document  
examination mentors of Mr. Babb. The two individuals indicated they would not hesitate to  
recommend Mr. Babb’s services.  
[179] In an April 8, 2016 email, the worker stated, “The documents in question were found on a C/D of  
disclosure, that was requested Jan 2015 by [name of new lawyer] .As the paper disclosure my  
lawer [name of law firm] did not contain these pages .It was not until Jan 2015 did I know they  
existed .Thus unable to appeal these facts .and now confirmed that pages in question was not  
my hand writing.”  
[180] In his email, the worker indicated that a second copy of his doctor’s notes obtained from  
Dr. Hosie’s office on February 19, 2015 “disclosed Aplication for Compensation Report ,blank.”  
(His letter was accompanied by a further copy of the partially filled out application form  
submitted by the worker to the Board earlier in 2005.) He referred to an attached February 23,  
7
He did expressly identify the documents.  
37  
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:  
A2101852 (June 14, 2022)  
2016 letter from the law firm to the Social Security Tribunal of Canada which indicated the firm  
had tried to get Dr. Hosie’s records transcribed.  
[181] The worker stated that also found in the second copy of Dr. Hosie’s notes was Dr. Gershman’s  
report mentioning an occupational rehabilitation program.8  
[182] The worker also referred to an accompanying statement from a neighbour who resided at the  
rooming house the worker lived at when he suffered the March 26, 2005 work accident. The  
statement signed on March 30, 2016 is to the effect that prior to the worker’s accident, he was  
always around the house or out cycling. The worker was quite athletic. After the accident, the  
worker was limited to his room, other than attending doctor appointments, as any movement  
was obviously painful and still appeared to be so.  
[183] The worker indicated, “I am hoping this should convince that I had a 12 foot fall were the  
employer on his return refused medical attention , and has been covered up by fraudulent  
statements by the employer ,Thus preventing me the medical attention I required.”  
[184] The worker indicated that if necessary, he would like an oral hearing. He was seeking  
“compensation for my injuries ,plus additional compensation for the pain and hardship I have  
had I have had to endour ,due to the negligence of the employer .Plus criminal charges against  
the employer [names of supervisor and office manager].”  
[185] By fax of May 16, 2016 addressed to “WCAT/Fraud Department,” a workers’ adviser indicated  
she was faxing documents that the worker believed established his work timesheets were  
fraudulently created. (The documents consisted of the materials received by WCAT on April 8,  
2016, as well as a copy of Mr. Babb’s March 14, 2016 invoice.) The workers’ adviser noted the  
worker asked that this evidence be accepted as proof of such by the Board. She asked that the  
worker’s evidence be provided to the proper party and that the worker be advised as to what  
action was being taken in response.  
[186] In a June 2, 2016 memorandum, a manager, Client Services, noted she met with the worker  
that day. The worker indicated he had seen another lawyer and when he asked for disclosure  
he “received a CD with six pages on it that were not in the paper disclosures.” The worker  
indicated the circumstances explained everything as to why decisions were made on the claim.  
The worker noted that “fraud investigations” told him they would contact him if they need to and  
he had not heard back from them. The manager advised the worker that if there was new  
information he should send it to WCAT.  
8 It is not clear whether the worker was asserting that a copy of that report was not found in the first copy  
of Dr. Hosie’s records and/or that no copy was found in disclosure provided to the worker on earlier  
occasions. Notably, the worker’s claim file establishes that in May 2005 the Board received two copies  
of Dr. Gershman’s report. On a side note, the worker would have known that he had been assessed by  
Dr. Gershman. It would have been open to him much earlier to have pursued a copy of any report if he  
was of the opinion there was no copy of a report from Dr. Gershman in disclosures of his claim file.  
38  
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:  
A2101852 (June 14, 2022)  
[187] The June 2, 2016 memorandum does not list the specific six pages referred to by the worker.  
[188] In June 2016 WCAT received further documents from the worker. In addition to a copy of  
Dr. Tarazi’s April 16, 2014 report which was submitted to WCAT as part of his appeal, the  
worker provided three reports from physicians who had assessed him in 2015 and 2016:  
Dr. O’Brien, Dr. Svorkdal, and Dr. Bourdon. I will discuss the contents of those documents later  
in my decision in my analysis of whether new evidence reconsideration grounds are  
established.  
[189] In a June 6, 2016 telephone memorandum documenting a call from the worker, an  
administrative assistant in the WCAT Tribunal Counsel Office noted the worker stated that, as  
part of considering whether to pursue a judicial review, the worker’s new lawyer requested  
disclosure which “had 6 pages that were not provided to his first lawyer (paper disclosure).” The  
worker stated that “those” pages were not written by him. He was advised his materials received  
by WCAT in May 2016 were with legal counsel for review.  
[190] The memorandum did not list the specific six pages referred to by the worker.  
[191] In his July 28, 2016 letter addressed to the worker, a WCAT legal counsel commented that  
while the worker had provided a number of documents to WCAT, he had provided little to no  
explanation as to how each document was material and substantial to the issues WCAT  
decided. For some documents, it was not clear as to how the evidence might be new.  
[192] WCAT legal counsel commented that the worker’s primary concern appeared to be with  
WCAT’s findings regarding how the accident happened, the determination that the worker did  
not fall after landing on his feet, and that the worker worked after the accident.  
[193] Regarding Mr. Babb’s report, WCAT legal counsel noted that the copy sent to WCAT was in  
black and white. If the worker wished to rely on that report, he was asked to provide a colour  
copy of Mr. Babb’s report so that the portions in red were clearly visible.  
[194] WCAT legal counsel stated that he presumed the worker thought Mr. Babb’s report was new  
and important because it related to WCAT’s findings regarding the circumstances of the injury.  
He asked the worker to explain why the evidence was material and substantial to the issues on  
appeal, given that the description of the accident set out in the report that the worker said was  
forged was similar to the description the worker gave of the accident at other times (as noted by  
the WCAT panel’s decision), including in the worker’s April 11, 2005 application for  
compensation, during a conversation with the Board officer on April 18, 2005, and to  
Dr. Gershman in May 2005.  
[195] WCAT legal counsel stated the worker had not explained how the evidence was new. While the  
report for Mr. Babb was prepared after the WCAT decision was issued, he asked the worker to  
explain why he did not obtain the report to raise the issue of a possible forgery at the time of the  
39  
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:  
A2101852 (June 14, 2022)  
WCAT hearing. He stated that concerns about the accuracy of disclosed documents was  
generally not an argument that could be raised after WCAT had issued its decision.  
[196] WCAT legal counsel observed that while Dr. Bourdon’s report post-dated the WCAT decision,  
the relevant question was whether the worker could have obtained a similar opinion during the  
appeal process if he had tried. The worker had not explained why Dr. Bourdon’s report was new  
as that term was defined in what was then section 256 of the Act (which is now section 310 of  
the Act). He also asked that the worker explain why he thought the report was material and  
substantial, as it appeared to be based on medical information already in file, including  
Dr. Tarazi’s opinion which the WCAT panel discounted.  
[197] As for the worker’s statement that certain documents could be verified through the  
Ombudsperson’s office in Victoria, WCAT legal counsel indicated WCAT would not be obtaining  
information from anyone in the event the application for reconsideration proceeded. It was the  
worker’s responsibility as the applicant to provide WCAT with any and all new evidence that he  
thought supported his application.  
[198] WCAT legal counsel concluded that on the basis of what the worker had provided, it did not  
appear he had set out potential grounds for reconsideration. WCAT would be taking no further  
action.  
[199] In her August 4, 2016 telephone memorandum documenting a conversation with the worker, the  
administrative assistant referred to above advised the worker that he could send coloured  
documents by mail. The worker indicated that he would do so.  
2016 response of the Board to allegations of fraud  
[200] In an October 11, 2016 memorandum a supervisor, Field Investigations, documented the results  
of an investigation in response to Mr. Babb’s report. Of note, the memorandum documented a  
summary of a September 15, 2016 interview of the worker.  
[201] Given the relevance of the analysis in the October 11, 2016 memorandum to one aspect of the  
worker’s new evidence reconsideration application, I consider it appropriate to document a  
relatively detailed summary of the memorandum.  
[202] The worker’s attention was drawn to the “Form 6” (the April 11, 2005 application for  
compensation which appeared to bear his signature9). He was asked whether that was  
something he filled out. The worker stated he “did not complete any forms nor talk to anyone  
9
While the supervisor’s memorandum refers to the “Form 6” and the “Form 6A”, for clarity when  
summarizing the memorandum, I will refer to them as the worker’s application and the worker’s report  
of injury save for quotations.  
40  
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:  
A2101852 (June 14, 2022)  
and that the only time [the worker] saw any forms was about a year ago.” He “only saw the  
Form 6 a year ago when [name of worker] received a ‘CD’”10.  
[203] The worker commented that “the forms” had the wrong telephone number on them—  
presumably a reference to the number ending in 4670 on the worker’s report of injury and the  
employer’s report of injury. The inclusion of the wrong number on the forms was probably the  
reason why nobody could contact the worker. When he was asked what telephone number he  
had, the worker explained he only had one telephone number since moving to British Columbia  
and that number ended in 0332. The worker then stated that another possible number might  
have been the number of the rooming house where he stayed, but he could not remember that  
number.  
[204] When asked whether he had ventured into the pharmacy (from which the worker’s application  
and the documents received by the Board on April 21, 2005 were faxed from) the worker stated  
he never used that pharmacy. He used two other locations for faxing. He was unaware that the  
pharmacy had faxing services.  
[205] When asked if he recalled a conversation he had with the named entitlement officer with regard  
to some timecards from work, the worker stated he had never spoken with the entitlement  
officer. He reviewed the April 20, 2005 memorandum dealing with a conversation between  
himself and the entitlement officer in more detail. He stated he did not know the name until  
2010, when the name kept “popping up on documents / paperwork.” He further stated he only  
dealt with an individual by a particular name. He supplied the name of the case manager with  
whom he dealt in 2010.  
[206] Later in the interview, when he was asked about his recollection of a conversation with  
entitlement officer, the worker stated he may have had a conversation with the entitlement  
officer and that would explain the confusion, as the entitlement officer had timecards that were  
filled in and the worker “had none as [the worker] had only worked 2 days.” The worker did  
mention that the timecards could have been filled out by the employer.  
[207] The worker was asked about his date of birth being incorrectly recorded on his report of injury.  
He was also shown a chiropractor’s report that also incorrectly noted the worker’s date of birth.  
The worker stated that “the information in both forms was from the employer as the phone  
numbers on both forms were wrong.”  
[208] In documenting his conclusions regarding the allegations of fraud, the supervisor stated that the  
two documents received by the Board on April 21, 2005 appeared, with a high degree of  
10 As the application for compensation is two-pages long, it might appear that that form amounts to the  
fifth and sixth pages of the six pages the worker states were found on disclosure issued after the  
WCAT decision but were not included in paper disclosures issued earlier. The first four pages would  
appear to be the two-page worker’s report of injury (although the worker only submitted copies of the  
first page) and two pages consisting of the documents received by the Board on April 21, 2005.  
41  
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likelihood, to have been faxed to the Board following a telephone conversation between the  
worker and the entitlement officer. The conversation was noted in an April 20, 2005  
memorandum. It included the fact that the worker advised the entitlement officer he had  
received his timecards from work and would fax them to the entitlement officer. A fax was  
received the following day from the pharmacy. The fax received on April 21, 2005 was  
consistent with the notes made by the entitlement officer the day before and was consistent with  
the worker having resided in the community in which the pharmacy was located.  
[209] The supervisor noted the worker’s application was faxed to the Board on April 12, 2005 from the  
same pharmacy. He noted the April 6, 2005 memorandum which documented that the worker  
called the Board to say he had received his application and would send it in. The supervisor  
stated the application was not initially alleged as a false document by the worker11; however, in  
his meeting he claimed he never submitted the application.  
[210] The supervisor noted it was not known how the worker’s report of injury arrived at the Board. He  
remarked that that form incorrectly recorded the worker’s date of birth as June 25. Other  
information in that form was consistent with other claim documentation.  
[211] The supervisor concluded his October 11, 2016 memorandum with the observation that he had  
not found grounds to support the worker’s allegation of fraud. This was primarily based on the  
fact that, due to the passage of time, the worker’s memory was not accurate. As well, the  
timecards which were alleged to be false and to have been submitted to the claim by the  
employer were, with a high degree of likelihood, submitted to the claim file by the worker  
himself.  
[212] The supervisor outlined several specific reasons:  
Mr. Babb’s report indicated that the analysis was inconclusive, but it was likely the signature  
on the April 21, 2005 letter received by the Board was not authored by the worker. The  
supervisor noted that according to Mr. Babb, only some of the handwriting on the worker’s  
report and the timecards was not authored by the worker. The supervisor stated that the  
“fact” the signature was not that of the worker and the “fact” that only some of the  
handwriting was not authored by the worker did not provide proof beyond reasonable doubt.  
He added that, in the interview, the worker stated the timecards could have been completed  
by the employer.  
While the worker stated that the reason there had been no contact with him was due to an  
incorrect telephone number being listed on multiple forms that had been submitted to the  
Board, the supervisor’s review of documents established there were multiple occasions  
when Board staff contacted the worker at the telephone number ending in 4670.  
11 This comment may overlook the worker’s February 26, 2015 assertion to the manager, Client Services,  
that the signature on the application was not his.  
42  
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While the worker stated he had no dealings with Board staff beyond dealings with an  
individual who had the name of the case manager, the worker later indicated he may have  
spoken with the entitlement officer and that would explain the confusion with the timecards.  
While the worker pointed to his report of injury with an incorrect date as evidence of false  
documents being submitted to his claim, Dr. Repsch also had an incorrect date of birth for  
the worker. The supervisor stated there was no evidence that the employer had anything to  
do with the worker’s chiropractor’s reports. Therefore, the most likely conclusion was that  
the incorrect date of birth came from the worker himself.  
The supervisor noted that the worker’s assertion in the interview that he did not complete or  
submit the worker’s application to the Board had not been previously made. He considered  
the worker’s allegation was not supported by documentation from 2005 which recorded that  
the worker confirmed he received the application and would be forwarding it to the Board.  
[213] While the October 11, 2016 memorandum referred to a colour copy of Mr. Babb’s report as an  
attachment, the accompanying copy of the report is not in colour.  
[214] By letter of October 11, 2016 addressed to the worker, the supervisor indicated his department  
did not identify any basis to proceed with a criminal investigation. No further action would be  
taken from such perspective.  
The Board’s further adjudication in 2017  
[215] The Board received an April 20, 2017 letter from Dr. Bourdon. I will discuss its contents below in  
my analysis of new evidence reconsideration grounds.  
[216] In an April 24, 2017 memorandum, a case manager documented her meeting with the worker.  
Among other matters, she noted the worker wanted a reopening of his claim with a full review of  
the objective medical evidence on file. The worker provided the Board with an authorization to  
gather information.  
[217] With that authorization, the Board obtained approximately 38 pages of documents from  
Dr. Bourdon, which included the reports of Drs. Svorkdal, O’Brien, and Bourdon noted above,  
and a January 15, 2016 nuclear medicine bone scan report. I will discuss the contents of those  
documents much later in my decision in connection with new evidence reconsideration grounds.  
[218] The case manager requested a medical opinion addressing whether there was new objective  
medical evidence which indicated the previous decision (apparently a reference to the  
September 2, 2010 decision) was based on incomplete or erroneous information.  
[219] In an undated response to the case manager’s June 2, 2017 request for a medical opinion,  
Dr. Giles, a Board medical advisor, noted that the history provided to Dr. O’Brien was that the  
worker fell on his buttocks. That was not the accepted mechanism of injury on the claim, which  
was that the worker landed on his feet without falling.  
43  
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[220] Dr. Giles noted that both Dr. O’Brien and Dr. Svorkdal felt the worker’s symptoms were related  
to the progression of degenerative disc disease in the worker’s spine. Dr. Giles observed that  
progression was the natural course of the degenerative disc disease throughout the worker’s  
spine. Dr. Giles could not medically relate the diagnosis of coccydynia to the mechanism of  
injury under the claim or the accepted lumbar strain sprain.  
[221] Dr. Giles cited Dr. Bourdon’s August 20, 2015 chart note which referred to the worker sustaining  
a physical assault 15 years earlier, right after a workplace injury, as providing evidence of an  
additional non-compensable incident occurring after the compensable incident. (I consider that  
Dr. Bourdon may have been referring to the assault noted in one of the worker’s March 8, 2011  
submissions referred to earlier in my decision.)  
[222] In her June 13, 2017 telephone memorandum, the case manager documented a conversation  
with the worker. Among other matters, the worker stated his employer had filed fraudulent and  
forged documents, which he found as a result of disclosure of his file. He had had them  
analysed to show he did not complete the documents. While the worker asserted that he fell  
onto his tailbone and was lying on the ground paralyzed for some time after the incident, the  
case manager stated the Board accepted the mechanism of injury as the worker’s ladder  
starting to fall and the worker jumping from the ladder and landing on his feet. The Board did not  
accept that he fell to the ground and landed on his tailbone.  
[223] By decision of June 14, 2017, the case manager advised the worker there was no new evidence  
that would support a change to the previous decision upheld by the Review Division in April  
2011. As in the case of the September 2, 2010 and March 20, 2013 decisions, the June 14,  
2017 decision contains a detailed summary of the documents on the claim file.  
2018 contact with WCAT  
[224] In an April 18, 2018 telephone memorandum, a WCAT employee documented that the worker  
wanted to know what he needed to do next. He referred to fraudulent documents on the claim  
file. He was advised that his options after a final WCAT decision involved a reconsideration  
application or a judicial review, the latter which had a 60-day filing deadline for which he could  
inquire about an extension at a courthouse. The worker indicated the BC Ombudsperson was  
investigating and the matter was ongoing. He did not know how to answer the July 28, 2016  
letter from WCAT legal counsel. He was directed to the Workers’ Advisers Office (WAO).  
2021 contact with WCAT  
[225] The next contact with WCAT occurred when the worker’s current lawyer submitted the July 8,  
2021 reconsideration application. I note, in passing, that page six of the July 8, 2021 submission  
states that for the August 19, 2020 report of one of the worker’s experts, the expert was  
provided with a full Board file disclosure current to September 18, 2018. Thus, it appears the  
lawyer representing the worker in this reconsideration received claim file disclosure current to  
that cited date.  
44  
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Findings and Reasons  
Procedural Fairness  
[226] Items #20.2.2 and #20.2.2.2.1 of WCAT’s Manual of Rules of Practice and Procedure (MRPP)  
provide WCAT may reconsider its decisions to cure a jurisdictional error. A reconsideration is  
not an opportunity to re-argue the appeal and WCAT cannot change the outcome of a decision  
on the basis it is incorrect, unreasonable, or patently unreasonable.  
[227] There are two types of jurisdictional errors which WCAT has the power to cure: breaches of the  
duty of procedural fairness and narrow jurisdictional errors. Narrow jurisdictional errors arise  
where WCAT had no power to decide a matter or WCAT failed to decide a matter that WCAT  
was required to decide.  
[228] The worker does not argue that there was a narrow jurisdictional error. He argues that there  
was a breach of procedural fairness.  
[229] Item #1.5.3 of the MRPP includes the following comments about the content of the duty of  
procedural fairness:  
The content of the duty to act fairly in a given case, that is, what is “fair,” depends  
on the circumstances of the case and may vary depending on the nature of the  
decision in question. The more important the decision is to those affected and the  
greater its impact on that person or persons, the more stringent the procedural  
protections that will be required. Also, administrative bodies which adjudicate  
formal appeals, like WCAT, are generally required to adhere to particularly high  
standards of procedural fairness (sometimes referred to as the “rules of natural  
justice”).  
[230] Item #1.5.3 of the MRPP notes that the duty to act fairly consists of four basic elements:  
a. the right to be heard,  
b. the right to a decision from an unbiased decision maker,  
c. the right to a decision from the person who hears the case, and  
d. the right to reasons for the decision.  
[231] In turn, item 1.5.3.1 describes the right to be heard in the following general fashion:  
The right to be heard means that a person who may be directly affected by a  
decision has the right to receive notice that a decision may be made, the right to  
know what matters will be decided, and the right to be given a fair opportunity to  
state their case and to correct or contradict relevant statements or evidence with  
which they disagree.  
45  
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WCAT Decision Number:  
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[232] Item 1.5.3.1 states the right will usually require the following:  
a. disclosure to a party of all documents that were before the Board and, if  
applicable, the Review Division, at the time the appealed decision(s) was  
made;  
b. disclosure to a party of all material that is before the decision maker,  
whenever received by the decision maker, including any written submissions  
from other parties;  
c. an opportunity to provide submissions in relation to all disclosed material and  
to respond to the written submissions of other parties;  
d. the right to a reasonable amount of time to prepare for an oral hearing or to  
provide written submissions, and to be advised of any relevant submission  
due dates;  
e. the right to present evidence;  
f. the right to test adverse evidence (e.g. cross-examination);  
g. an oral hearing if the circumstances require one;  
h. notice of the time and place of an oral hearing, if one is held;  
i. the right to be present throughout an oral hearing;  
j. the right to obtain representation.  
[233] Item #20.2.2 of the MRPP provides that WCAT will apply the same standards of review to  
reconsiderations to cure jurisdictional errors as will be applied by the court on judicial review. As  
a result, in assessing matters of procedural fairness, WCAT takes into account  
paragraph 58(2)(b) of the Administrative Tribunals Act (ATA):  
(b) questions about the application of common law rules of natural justice and  
procedural fairness must be decided having regard to whether, in all of the  
circumstances, the tribunal acted fairly….  
[emphasis added]  
[234] Thus, the question raised by this application regarding WCAT-2014-03255 is this: Did WCAT  
act fairly?  
[235] An examination of whether WCAT acted fairly involves consideration of procedure.  
[236] Fairness is not a matter of whether the worker considers it was unfair for WCAT to deny his  
appeal. Fairness does not involve examining how a WCAT panel weighed the evidence that  
was before it.  
Conduct of the law firm regarding the scheduling of and cancellation of the oral hearing  
[237] While the July 8, 2021 submission and August 13, 2021 submission include arguments  
regarding the issue of procedural fairness, and I will address those later my decision, I start my  
46  
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WCAT Decision Number:  
A2101852 (June 14, 2022)  
analysis by considering paragraphs #42 through #45 of the worker’s June 11, 2021 affidavit.  
Those paragraphs appear under the heading “Fairness Grounds for Reconsideration  
[underlining omitted].”  
[238] The affidavit lists as exhibits G and H the March 20, 2014 letter from WCAT to the law firm  
representing the worker as part of his appeal WCAT confirming the postponement of the oral  
hearing scheduled for April 20, 2014 and the June 9, 2014 letter from that law firm to WCAT  
regarding the appeal proceeding by written submissions and asking that the oral hearing be  
cancelled.  
[239] The worker states in paragraph #43 that with respect to those exhibits and any correspondence  
between WCAT, legal counsel, or the worker, the worker “did not agree to postpone or cancel a  
WCAT oral hearing and I did not instruct my legal counsel to postpone or cancel a WCAT oral  
hearing or to request my appeal proceed by written submissions.” The worker states that “[a]s  
a result of the actions” of the law firm he was not given the opportunity to give evidence at a  
WCAT oral hearing or to address any questions or concerns from the WCAT vice chair,  
employer, or employer’s representative’s about his claim or appeal (paragraph #44). The worker  
believes that the actions of the law firm deprived him of the right to a hearing and resulted in  
unfairness with respect to findings in the WCAT decision.  
[240] The above assertions by the worker are quite surprising for many reasons.  
[241] There does not appear to be any suggestion in the claim file documents that the worker made  
such assertions to the Board or WCAT at any time prior to 2021. One would think that if the law  
firm behaved in the fashion in which the worker asserts, the worker would have made such  
assertions to WCAT shortly after he received the WCAT decision which denied his appeal. At  
that point, the worker would have realized that actions he says the law firm undertook  
disadvantaged him. The notion that one would delay from November 2014 to 2021 before  
contesting the actions of the law firm strains credulity.  
[242] The affidavit is curiously devoid of any statement from the worker as to what actions he took, if  
any, when he received his copy of the March 20, 2014 letter which confirmed the postponement  
of the oral hearing scheduled for April 28, 2014, his copy of the June 9, 2014 letter from the law  
firm to WCAT stating that the worker wished to proceed by way of written submissions, his copy  
of WCAT’s June 11, 2014 letter advising that the request that the oral hearing be cancelled was  
granted and that the appeal would proceed by way of written submissions, and his copy of the  
law firm’s July 16, 2014 submissions. I refer to “his copy” in connection with those documents  
because each of those documents indicates a copy was sent to the worker. Significantly, the  
worker makes no assertion in his affidavit that he contacted the law firm to object or contacted  
WCAT to advise that the law firm was taking actions without his consent.  
[243] The notion that the law firm took actions with which the worker disagreed, or which the worker  
did not instruct the law firm to perform, appears to be grossly at odds with the fact that, as  
47  
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WCAT Decision Number:  
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established by the February 23, 2016 letter noted above, the law firm represented the worker in  
connection with a proceeding before the Social Security Tribunal.  
[244] Why would the worker have ongoing involvement with a law firm which took such actions or  
made such a request? Despite the fact the worker submitted the February 23, 2016 letter to  
WCAT in April 2016, his 2021 reconsideration submissions and his affidavit filed with WCAT  
make no attempt to harmonize his allegations about the conduct of the law firm in connection  
with the appeal with the fact that in 2016 it represented him in front of another tribunal.  
[245] While I have made the above comments, my ultimate determination regarding the worker’s  
assertions regarding the matter of the oral hearing does not rest on those comments.  
[246] The worker’s submissions regarding the postponing of the oral hearing and the cancelling of the  
oral hearing concern conduct of the law firm. The worker does not expressly point to any  
conduct by WCAT.  
[247] Generally speaking, procedural fairness concerns the conduct of a tribunal; therefore, an  
individual who seeks to have the decision of a tribunal set aside on the basis of procedural  
fairness will make arguments as to how a tribunal acted unfairly. Save for my comments below,  
concerns about the conduct of a representative do not provide a basis to set aside a tribunal’s  
decision on the basis of procedural fairness.  
[248] While not argued by the worker, in an attempt to make sense of the concerns raised by him as  
to procedural fairness, I have considered whether WCAT’s responses to correspondence from  
the law firm establishes WCAT failed to act fairly with the result there was a breach of  
procedural fairness.  
[249] As part of the appeal, the worker was represented by a law firm. The worker’s affidavit and the  
reconsideration submissions contain no assertion that WCAT was under any obligation to  
decline the law firm’s request to postpone the oral hearing, decline the request to cancel the  
rescheduled oral hearing, and/or decline the request to proceed by written submissions. The  
affidavit and reconsideration submissions do not assert that WCAT was under any obligation to  
confirm with the worker whether the requests made by the law firm were consented to by the  
worker.  
[250] Aside from the absence of any such assertions, I find WCAT was under no obligation to reject  
the requests made by the law firm. Further, I find that, as part of considering the law firm’s  
requests, WCAT was under no obligation to check with the worker to ascertain whether the law  
firm’s requests were, indeed, the requests of the worker—the law firm’s client.  
[251] I find that as a matter of law, WCAT was entitled to interpret the requests of the law firm as  
having been those of the worker, the law firm’s client. It was not unfair for WCAT to have  
granted the law firm’s requests, especially the law firm’s request to cancel the oral hearing and  
48  
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WCAT Decision Number:  
A2101852 (June 14, 2022)  
proceed by written submissions. There was no breach of procedural farness associated with  
WCAT’s responses to the law firm’s requests  
Quality of representation of the law firm  
[252] The following analysis concerns what might be regarded as the quality of the representation and  
the quality of the submissions.  
[253] While page 11 of the worker’s July 8, 2021 submission lists the heading “Fairness Grounds for  
Reconsideration [bolding omitted],” the first 10 pages of the submission also contain arguments  
regarding fairness, and I note some of them below.  
[254] Page 2 documents that the worker seeks reconsideration “related to … legal representation in  
advance of the WCAT decision on the basis that the worker was unfairly deprived of a  
hearing and a chance to give his evidence regarding all matters arising from the 2005  
workplace injury [emphasis added].”  
[255] At page 3 the worker asserts that as a result of the cancellation of the rescheduled oral hearing  
in favour of written submissions, “there was no appeal hearing and the worker was not able to  
speak to the appeal or give his evidence related to the mechanism of injury and his  
circumstances from the date of injury in 2005 to the requested date of reopening in 2012  
[emphasis added].”  
[256] Also at page 3 the worker argues he was “particularly denied the opportunity to give  
evidence on relevant issues before the tribunal that were addressed in the 2014 WCAT  
decision including mechanism of injury, employer reporting, return to work in May 2005,  
persisting symptoms, the circumstances and consequences of three other less forceful incidents  
in 2007 and 2010, and the onset of disabling symptoms [emphasis added].”  
[257] At page 4 the worker states that the reconsideration turns on fairness issues regarding evidence  
the worker “could have given” at a WCAT hearing addressing the mechanism of injury, work  
schedule documents and subsequent various comments from the employer that the worker was  
“unable to address or refute,” and medical reporting, treatment and diagnosis in relation to the  
worker’s symptoms from March 2005 onwards in the context of a 2012 reopening request,  
particularly in relation to the worker’s evidence that his symptoms began on March 26, 2005 due  
to the workplace fall, never resolved, and continued to worsen until he could no longer work by  
2010.  
[258] At page 11 in connection with the heading “Fairness Grounds for Reconsideration,” the worker  
lists a number of matters under the assertion that the issue of fairness “is relevant to this  
reconsideration application as the process leading to the 2014 WCAT decision did not include a  
hearing where worker could address … [underlining in original].” The matters are similar to  
those listed on pages three and four noted above.  
49  
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WCAT Decision Number:  
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[259] Slightly later on page 11 of the submission, the worker asserts, “We …take great issue with the  
employer’s evidence particularly at paragraph 15 of the 2014 WCAT decision and submit that  
this unchallenged recital of employer evidence in the 2014 WCAT decision raises  
fairness issues [emphasis added].” The worker contends, “The recital of employer evidence  
sets the stage for later findings in the 2014 WCAT decision in terms of perceptions and  
interpretation of medical evidence that obscure the chronology, the continuity of  
symptoms, and the rapid worsening of symptoms [emphasis added].”  
[260] I pause at this juncture to note that in addition to contending that the failure of the law firm to  
challenge the employer’s evidence resulted in a fairness concern, the quoted passages in the  
paragraph above appear to argue that the panel’s recital of the employer’s evidence resulted in  
the panel embracing perceptions and interpretation of medical evidence that obscured the  
panel’s understanding of matters of chronology, continuity, and worsening regarding the  
worker’s symptoms. While I will consider whether the failure of the law firm to provide  
submissions that challenged the employer’s evidence received by the Board in 2005 created  
fairness concerns, I will not consider whether the panel’s recital of the employer’s evidence  
created fairness concerns. In that regard, the worker is cloaking in fairness arguments his  
disagreement with how the panel weighed the evidence. There is no scope for me in this  
application to reweigh the evidence that was before the panel or to explore whether the panel’s  
appreciation of the evidence was flawed.  
[261] Commencing at the bottom of page 11 and continuing on to the top of page 12, the submission  
asserts that the reconsideration issue of fairness is particularly addressed in the worker’s  
affidavit and attached exhibits C, D, and E, consisting of the worker’s handwritten statement  
dated January 4, 2011, the worker’s handwritten Review Division submissions dated March 8,  
2011, the subsequent April 7, 2011 Review Division decision, and the worker’s email to his  
representative dated August 13, 2013.  
[262] While the submission acknowledges that most of the exhibit evidence was also in file disclosure  
and was available to the WCAT panel which made the 2014 decision, at page 12 the  
submission contends “… but, of course, it takes a lot of time and attention to detail to be  
thorough and, in this case, to appropriately challenge the employer’s evidence.”  
[263] Once again, it appears that under the guise of making procedural fairness arguments, the  
worker is challenging the panel’s analysis of the evidence. Once again, I say that this is not a  
matter for reconsideration.  
[264] The submission asserts, “In brief, the worker did not have a hearing and was therefore  
unable to tell his story of what happened on and after 26 March 2005.” It adds, “Helpful details  
on file were obscured by volume and time issues, lack of reference to them, and by the  
employer’s misleading evidence [emphasis added].” It is not clear from those comments who  
was affected by volume and time issues. To the extent that the submission is a veiled  
suggestion that the panel’s ability to analyse matters was subject to pressing time constraints  
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WCAT Decision Number:  
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and was overtaken by the volume of material, the arguments raises a matter that is not open to  
me to review on a reconsideration.  
[265] At the bottom of page 12, the worker asserts that for the second reopening request he relied on  
his representative who relied on Dr. Tarazi’s report and “evidently did not carefully review the  
chronology or the record with the worker.” As asserted on page 13, that, coupled with such  
matters as the worker’s lack of understanding of bureaucratic processes and limited reporting  
from Drs. Hosie and Repsch accompanying the 2010 claim reopening, “led to the 2014 WCAT  
decision being made in the absence of an oral hearing or a comprehensive and critical  
review of the chronology and the evidence [emphasis added].”  
[266] I pause at this juncture to observe that the worker’s fairness arguments again appear to be  
taking issue with how the WCAT panel analysed the evidence. To assert that there was no  
comprehensive and critical review of the chronology and the evidence is to dispute the panel’s  
analysis of the evidence and its reasoning. There is no scope for me to entertain such  
arguments as part of the reconsideration application.  
[267] On page 13, at what appears to be the conclusion of the arguments concerning fairness  
grounds for reconsideration, the following is asserted:  
The worker did not know how to help himself both with the bureaucracy and with  
the accident employer from 2005 onwards and it appears that the employer’s  
evidence in 2014 that influenced the perception of the entire injury claim in the  
2014 WCAT decision was not answered by the worker’s representative and  
not known by the worker until after the 2014 WCAT decision.  
[emphasis added]  
[268] I note that the above submission does not assert that law firm was unaware of the employer’s  
evidence found in the documents on the claim file from 2005. Rather, it asserts that the  
employer’s evidence was not answered by the law firm. As for whether the employer’s evidence  
was known by the worker, I find that, for reasons documented elsewhere, via disclosures of the  
claim file issued to the worker in 2010 and 2012 the worker would have had notice of the  
employer’s evidence, even if the worker’s assertions as to various documents not having been  
present on the claim file in disclosure issued prior to the WCAT decision are true.  
[269] Returning to the worker’s affidavit, I note he asserts at paragraph #45 that the law firm did not  
discuss with him what the accident employer evidence said, did not advise him about presenting  
his version of what happened, and “appear[ed] to have not represented in full in written  
submissions addressing statement I had made in 2011 and 2013 that were on the claim file.”  
The worker concludes paragraph #45 with the following assertion as to file disclosure:  
I don’t believe I had file disclosure at this time and it was a mistake on my part  
which I attribute to not understanding WorkSafe BC that well for not going to the  
file disclosure earlier or asking for file disclosure then.  
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[270] The worker’s August 13, 2021 submission also addresses the conduct of the law firm. The  
submission asserts that in the lead up to the WCAT decision the worker relied on legal counsel,  
and legal counsel, in turn “pursued a very narrow line of medical inquiry with Dr. Tarazi and did  
not brief [the worker] regarding evidence and issues arising from the chronology or from what  
the employer submitted.”  
[271] The submission expands on the matter of the conduct of the law firm by indicating that as a  
result of the law firm indicating no hearing was necessary, the worker was “effectively left in the  
dark about the many issues addressed in the 2014 WCAT decision, did not have an  
opportunity to speak to them and provide evidence, and did not have disclosure or  
comprehensive briefing from his legal counsel which might have alerted him to some of the  
many issues addressed in the employer evidence and adopted in the 2014 WCAT decision  
[emphasis added].”  
[272] The submissions regarding the conduct of the law firm appear to conclude with the assertion  
that while the worker relied on legal counsel to guide him through the second reopening request  
leading up to the WCAT decision, “it is evident legal counsel was not thorough respecting  
evidence, providing a very narrow specialist report, and neither addressed the chronology nor  
the context with WCAT or with [the worker].”  
[273] While the worker’s submissions contain numerous arguments regarding the manner in which  
the law firm represented the worker as part of the appeal, the submissions do not expressly  
assert how those arguments advance the worker’s reconsideration application with regard to  
procedural fairness.  
[274] In that regard, as I noted above, generally speaking, procedural fairness concerns the conduct  
of a tribunal; therefore, an individual who seeks to have the decision of a tribunal set aside on  
the basis of procedural fairness will make arguments as to how a tribunal acted unfairly. The  
worker’s submissions concern the conduct of the law firm and do not concern the conduct of  
WCAT. By that, I note he argues that as a result of the actions of the law firm, he was not given  
the opportunity to give evidence at a WCAT oral hearing. As well, he takes the law firm to task  
as part of asserting it was not thorough and did not brief him appropriately. Thus, the worker  
points to the conduct of the law firm in making his arguments about procedural fairness.  
[275] In trying to ascertain in what fashion the worker’s arguments regarding the law firm might  
advance the worker’s reconsideration application, I have considered whether, impliedly, the  
worker is asserting that the law firm was incompetent and such incompetence raises a matter of  
procedural fairness. While the submissions do not expressly argue these points, analysing the  
arguments in that fashion is my attempt to analyse matters in a manner that would concern  
procedural fairness.  
[276] In conducting such analysis, I note that despite listing many criticisms of the conduct of the law  
firm, the worker’s reconsideration materials contain no citation of any text or case law  
addressing whether a failure of a representative to adequately represent an appellant amounts  
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to a breach of procedural fairness that would justify setting aside a decision of an appellate  
administrative body.  
[277] Despite that, I have considered prior WCAT decisions on the matter. In particular, I note  
WCAT-2006-04269 and WCAT 2015-02215, which are available in the decision database on  
WCAT’s website. In the second decision, the panel concluded a decision of a tribunal might be  
set aside only in extreme circumstances. In doing so, the panel took into account comments in  
Macaulay and Sprague, Practice and Procedure before Administrative Tribunals (2004  
Thomson Canada Limited, loose-leaf, Volume 2).  
[278] I note that the second decision cited a passage in the fifth edition of Administrative Law in  
Canada published in 2011 to the following effect:  
A party may not complain if counsel chosen by the party failed to present the  
case competently. In these situations the tribunal is not at fault. The tribunal is  
not obliged to ensure competent representation.  
[279] Of interest, the sixth edition of Administrative Law in Canada, offers a more nuanced  
assessment of the matter at item 2.226:  
Normally, a represented party may not complain if their representative failed to  
present the case competently. In these situations the tribunal is not at fault. The  
tribunal is not obliged to ensure competent representation. More recently,  
tribunal decisions have been set aside due to incompetent representation,  
particularly in refugee and deportation cases. A party who makes this  
allegation must give notice to the representative who is entitled to respond.  
[footnotes omitted; emphasis added]  
[280] I have taken into account the current version of Macaulay and Sprague, Practice and Procedure  
before Administrative Tribunals. The relevant discussion is documented in items §16:162  
through §16:164, rather than at item 12.27(a)(iv) cited in WCAT-2015-02215. The current  
version draws attention to Jalloh v. Insurance Council of British Columbia, 2016 BCCA 501,  
which offers notable comments as to the circumstances in which competency of counsel may be  
raised on judicial review and Gligorevic v. McMaster (2012), 2012 ONCA 115, which identifies  
the criterial to be met. Those decisions were issued well before the worker submitted his  
reconsideration application to WCAT in July 2021.  
[281] The court in Jalloh agreed substantially for the reasons of the chambers judge that the  
circumstances in which a court will entertain an allegation of procedural fairness grounded in  
ineffective assistance of counsel are very limited. Recourse to the reasons of the chambers  
judge at 2016 BCSC 47 reveals that the circumstances would not be applicable to the  
reconsideration before me. This reconsideration does not involve Canadian Charter of Rights  
and Freedoms rights, issues of general public importance, or vulnerable persons. In that regard,  
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I find the worker would not have been a vulnerable person. While he might not have been  
especially sophisticated with respect to workers’ compensation matters, I consider he was not a  
child or a person “under mental disability” or a similarly vulnerable individual.  
[282] I find that any implied argument as to incompetence of counsel on its own would not provide a  
basis to find there was a breach of procedural fairness.  
[283] In the event that I am incorrect and that this is an instance in which an allegation of procedural  
fairness grounded in ineffective assistance would be open to the worker to pursue, I have  
further considered the matter.  
[284] I note the worker does not argue that the WCAT tribunal record somehow establishes  
inadequacy of counsel such that WCAT’s permitting the worker’s appeal to be based on the  
written submissions tendered by counsel in the absence of an oral hearing establishes a breach  
of procedural fairness by WCAT. While the worker does not argue that, I have proceeded to  
consider the matter so as to ensure that I have analysed the issue to the fullest extent possible.  
Also as part of analysing the issue to the fullest extent possible, I have considered whether  
speaking generally, and not confined to a review of WCAT tribunal record, the law firm was  
incompetent such that there was a breach of procedural fairness. In conducting my analysis  
below, I note that in light of my conclusion on the matter, I did not find it necessary to notify the  
law firm and provide it an opportunity to make submissions on the matter.  
[285] In considering the question of whether the conduct of the law firm in the WCAT appeal was so  
egregious that there was a breach of procedural fairness, I note the law firm sought an expert  
opinion from an orthopaedic surgeon. The March 20, 2014 letter to Dr. Tarazi posed several  
questions relevant to the matter raised by the appeal. The letter was accompanied by copies of  
the decisions of September 2, 2010, April 7, 2011, March 20, 2013, and November 15, 2013. It  
was accompanied by numerous claim file documents, including copies of materials from  
Drs. Hosie, Repsch, Gershman, and Church, as well as copies of Dr. Mason’s opinions of  
September 1, 2010 and March 9, 2013.  
[286] Thus, the law firm sought to provide WCAT with new evidence from an expert informed by  
earlier medical evidence. The law firm did not simply try to argue the appeal based on the  
evidence on the claim file. The supplying of new expert medical evidence is not a hallmark of  
incompetence.  
[287] That the law firm may not have provided Dr. Tarazi with more documents and may not have  
drawn to his attention earlier evidence on the claim file concerning the mechanism of injury and  
the worker’s work activities after the March 26, 2005 incident is unfortunate, but I am not  
persuaded that such circumstances establish incompetence in light of what I find would have  
been the worker’s opportunity to be aware of the early information on the claim file and a  
possible strategy by the law firm as to how the appeal should be argued. I will expand on these  
points below.  
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[288] I note that the July 8, 2021 submission asserts at page 4 that the worker does not dispute that  
the WCAT decision found Dr. Tarazi’s medical reporting was “fundamentally flawed and  
therefore not reliable.” Also on that page, the worker asserts that with respect to the new  
evidence presented for the reconsideration, the narrow and specific diagnosis given by  
Dr. Tarazi was “not correct” and that the more recent reporting appropriately reconciles the  
mechanism of injury, the chronology, and the worker’s presentation throughout the medical  
reporting. The submission also contends at page 10 that the “elicited reporting from Dr. Tarazi  
erred by addressing particular symptoms narrowly and this ultimately led to a narrow and  
particular diagnosis from Dr. Tarazi that, in our submission, has been more appropriately  
revisited in the enclosed new evidence.”  
[289] While such comments above might suggest that the law firm erred in submitting Dr. Tarazi’s  
opinion, I note in an August 19, 2020 report submitted by the worker as part of the  
reconsideration application Dr. Fern observes on page 11 that the WCAT decision was critical of  
the opinion provided by Dr. Tarazi for the appeal. Dr. Fern indicates that Dr. Tarazi’s report  
“appears to be in line with the records that were available for review and as an orthopaedic  
specialist providing an opinion.” Thus, it would seem that an expert opinion tendered by the  
worker as part of this reconsideration does not suggest Dr. Tarazi’s opinion was inadequate,  
such that one could argue the law firm representing the worker as part of the appeal was  
somehow incompetent for having submitted it as part of the appeal.  
[290] As for other matters noted in connection with the conduct of the law firm, while I do not doubt  
the worker did not request disclosure of his claim file as part of the appeal to WCAT, I consider  
the claim file documentation establishes the worker requested disclosure of the claim file in  
November 2010 and that same month was provided with disclosure of his claim file. He was  
also provided with disclosure of his claim file in late 2012. Had he kept the paper disclosure  
copies of his claim file, he would have had disclosure of the first 7.5 years of his claim at the  
time the appeal to WCAT proceeded.  
[291] In 2010 and 2012 the worker would have received copies of notable documents from the claim  
file, such as the employer’s April 11, 2015 letter, the entitlement officer’s April 15, 2005  
memorandum documenting information provided by the employer, the entitlement officer’s  
two memoranda of April 18, 2005, the April 20, 2005 memorandum documenting her  
conversation with the worker, and the April 25, 2005 decision document. Significantly, the  
worker’s post-WCAT appeal documents do not include any express assertion that the  
above-mentioned documents were not included in paper disclosures of his claim file.  
[292] To be clear, I find the worker received disclosure in 2010 and in 2012. In that regard, I note that  
in paragraph #28 of his affidavit the worker asserts that for his request for review by the Review  
Division following the denial of his reopening in 2010 he “did not review disclosure.” (As noted  
above, paragraph #45 of the worker’s affidavit also touches on the matter of disclosure.)  
[293] I do not know whether the worker is asserting in paragraph #28 of his affidavit that he did not  
request disclosure or that he did not physically review the documents even though he received  
55  
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WCAT Decision Number:  
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them as part of disclosure. I consider that an interpretation that he did not request or receive  
disclosure is inconsistent with the claim file documentation. I note that in his affidavit he does  
not expressly assert that, despite the appearance on the claim of both his requests for  
disclosure and letters to him advising him that disclosure had been sent to him, he neither  
requested disclosure in 2010 and 2012 nor did not receive disclosure in 2010 and 2012.  
[294] That the worker may not have physically reviewed the disclosed documents when he received  
them in 2010 (and in 2012) would have been a matter for the worker’s discretion; however, any  
failure of the worker to have done that in 2010 (and in 2012) would not establish a breach of  
procedural fairness in 2014.  
[295] The worker’s assertion in paragraph #37 of his affidavit that “I did not see the employer’s  
evidence until after the 2014 WCAT decision“ would, given his earlier allegations, seem to refer  
to the worker’s report of injury and the timecards/letter received by the Board on April 21, 2005.  
(Possibly, it also refers to the employer’s report of injury, given that he submitted a copy of the  
first page of it in July 2015 when he asserted that certain evidence had not been included in  
paper disclosures and possibly it refers to the worker’s application, given that he has asserted  
that the signature on it is not his and he did not submit the document to the Board.)  
[296] The assertion in paragraph #37 would not seem to be an assertion that, owing to the actions of  
the law firm representing him as part of the appeal, the worker was somehow precluded from  
knowing of the contents of the employer’s April 11, 2015 letter and the entitlement officer’s  
April 15, 2005 memorandum documenting information provided by the employer. As well, to  
the extent his reference to the “employer’s evidence” is intended to refer to the worker’s  
report of injury and the worker’s application for compensation—given that he questions their  
authenticity—the April 18, 2005 claim review memorandum records notable information found in  
those two documents as to the mechanism of injury and when the worker experienced  
soreness, and would have alerted him to the fact the Board had received such documents and  
considered they were his documents.  
[297] As part of receiving disclosures of the claim file in late 2010 and in 2012, the worker would have  
received copies of the April 11, 2005, April 15, 2005, and April 18, 2005 documents noted in the  
paragraph above. As well, the law firm would have received copies of those documents as part  
of its receiving disclosure of the claim file. Whether the law firm reviewed those documents with  
the worker does not raise procedural fairness concerns. He could have raised concerns  
regarding those documents with the law firm.  
[298] As for the worker’s knowledge of other aspects of the evidence, such as the timecards, I will  
address that later in my decision.  
[299] Certainly when he received his copy of the law firm’s submission to WCAT, it would have been  
open to the worker, had he kept copies of the documents provided to him as part of disclosure  
in 2010 and 2012, to have raised with the law firm any concerns he might had with claim file  
documents which recorded evidence from the employer.  
56  
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WCAT Decision Number:  
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[300] As for any failure of the law firm to represent in full the worker’s statements he had made in  
2011 or 2013 that were on the claim file, the worker was sent a copy of the law firm’s  
submission to WCAT which accompanied Dr. Tarazi’s report. As the author of the 2011 and  
2013 statements, the worker would have been aware of what he had said in them. It would have  
been open to him to have raised the matter of those submissions with the law firm. The worker  
does not assert that he did and that any overtures by him were rejected.  
[301] While the July 8, 2021 submission cites the worker’s affidavit which contains comments in  
paragraphs #42 through #45 discussed above and that submission and the August 13, 2021  
submission contain comments critical of the law firm, I consider it significant that the  
submissions—authored by a lawyer who since 2003 has represented individuals in dozens of  
appeals to WCAT, if not more than 100 appeals—contain no assertion that the law firm which  
represented the worker as part of the appeal to WCAT was negligent, grossly negligent or  
incompetent. While the absence of any such assertion does not determine the matter, I attach  
some significance to that absence.  
[302] After having reviewed the matter, I find there is no persuasive basis to conclude there was  
a breach of procedural fairness associated with the actions of the law firm such that the  
WCAT decision should be set aside as void. I am not persuaded that there was such  
ineffectiveness of counsel that, on its own or that which would have been apparent to the WCAT  
panel, there was a breach of procedural fairness.  
[303] In making that finding, the conduct of the law firm is consistent with it (i) having been fully aware  
of evidence on the claim file that was harmful to the worker’s position on the appeal and (ii)  
thinking that the worker was aware of that evidence (given he had received disclosure of the  
claim file in 2010 and in 2012), but the law firm choosing not to address such evidence in written  
submissions on the basis it might not have to do so unless it was raised by employer as part  
of written submissions. I consider such a choice would have been an option for the law firm as a  
matter of strategy, albeit such a strategy might be risky. Further, the request to change the  
appeal procedure from an oral hearing to written submissions is consistent with the law firm not  
wanting to expose the worker to cross-examination during which inconsistencies with his  
evidence in 2005 and his evidence supplied to Dr. Tarazi might be explored to the worker’s  
detriment.  
[304] I am not saying I am privy to the law’s firm’s knowledge, choices, or strategies but rather that its  
actions are consistent with it having such knowledge, choices, and strategies and that the  
approach taken to the appeal would not establish incompetence by the law firm. I add that the  
above analysis has been offered in the event that, contrary to my finding in paragraph #282  
above, incompetence of counsel would provide a basis to find there was a breach of procedural  
fairness.  
Procedural fairness and the absence of an oral hearing  
57  
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[305] Also as part of considering the matter of procedural fairness, I note the worker’s July 8, 2021  
submission does not expressly assert that WCAT failed to act fairly when the WCAT panel  
issued her decision without holding an oral hearing. The only point at which the worker’s  
reconsideration materials appear to touch on this arises in connection with the August 13, 2021  
submission which responded to the July 23, 2021 letter from WCAT legal counsel.  
[306] In his July 23, 2021 letter, WCAT legal counsel stated it was not apparent how WCAT’s decision  
to proceed by way of written submissions, at the request of the worker’s law firm, was unfair to  
the worker. WCAT legal counsel asked that the worker explain how WCAT’s procedure was  
unfair in light of the worker’s request to proceed without an oral hearing.  
[307] WCAT legal counsel commented that the worker stated that because there was no oral hearing  
he was deprived of the opportunity to clarify the evidence pertaining to the mechanism of injury  
and the course of his recovery. WCAT legal counsel observed that it seemed fair to say those  
were live issues at the time the worker requested to proceed without an oral hearing.  
[308] WCAT legal counsel observed that the rules of procedural fairness require that, where  
reasonable in the circumstances, a party be given the opportunity to present their case in the  
manner they choose. He stated that the question was how WCAT’s procedure, which  
proceeded in the manner the worker requested, deprived him of an opportunity to present his  
case in the manner of his choosing.  
[309] WCAT legal counsel stated that a similar situation was discussed in Bhullar v. Workers’  
Compensation Appeal Tribunal, 2019 BCSC 1673, in which the chambers judge stated as  
follows at paragraph #91:  
The process seen in the present case is not unusual. To accede to the  
petitioner’s arguments would require WCAT (and indeed other similar tribunals)  
to prophylactically convene an oral hearing in almost every case. If the tribunal  
fails to do so, and rejects the application of the party, based on external objective  
evidence, the applicant would always be able to say, ex post facto, that the  
rejection of their claim impugned their credibility and that they ought to have had  
their credibility assessed in an oral hearing. This is antithetical to the efficient  
conduct of a high-volume tribunal such as the Board, and would promote moral  
hazards: applicants opting for written proceedings would in effect buy themselves  
a free grounds of judicial review if the decision goes against them.  
[310] The final page of the worker’s August 13, 2021 submission contains the following comments  
regarding natural justice and procedural fairness:  
I do appreciate the comments in Bhullar with respect to efficient conduct of a  
high-volume tribunal but the circumstances here are not so simplistic and do not  
warrant the high handed dismissal seen in the quoted you provided. I would  
58  
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WCAT Decision Number:  
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caution you against making a sacrifice of natural justice and procedural fairness  
on the altar, as it were, of efficiency and high volume.  
As legal counsel I am sure you understand very well that proper process and  
fairness are the goal from the outset and crucial to a proper functioning society.  
This has to be real and substantial and it takes time.  
[311] Notably, in Bhullar the court dealt with a worker who asked that his appeal proceed by written  
submissions. The decision contains a wide-ranging analysis of considerations associated with  
whether a tribunal needs to hold an oral hearing. The court concluded that WCAT did not act  
unfairly in adjudicating that worker’s appeal without holding an oral hearing.  
[312] While the worker’s July 8, 2021 submission does not appear to assert that WCAT acted unfairly,  
in rejecting the applicability of the Bhullar decision, the August 13, 2021 submission impliedly  
contends WCAT acted unfairly when it adjudicated the worker’s appeal without holding an oral  
hearing. As a result, I have considered that matter.  
[313] For the following reasons, I find WCAT did not act unfairly when it adjudicated the worker’s  
appeal without holding an oral hearing.  
[314] I appreciate that the Review Division decision appealed to WCAT may not have expressly put  
into issue such matters as the mechanism of injury, the worker’s post-March 26, 2005 work  
activities, and nature and course of the worker’s symptoms over the years since 2005. However,  
it is notable the review officer attached significance to the opinion of Dr. Mason. That opinion is  
found in an 11-page document which includes the case manager’s March 7, 2013 request for an  
opinion and Dr. Mason’s March 19, 2013 response. That 11-page document records the  
mechanism of injury as involving the worker jumping ten feet from a ladder onto his feet without  
falling, his having tried working for several days following the injury, gaps in the worker’s  
treatment, the occurrence of non-compensable incidents, and the contents of various medical  
documents.  
[315] Significantly, the review officer stated that Dr. Mason’s 2013 opinion was consistent with the  
earlier denial of reopening of the claim which referenced a lack of continuity of symptoms  
between 2005 and 2010.  
[316] The review officer’s citing of Dr. Mason’s opinions would have drawn the attention of the worker  
and the law firm to the contents of those opinions and the circumstances in which they were  
produced.  
[317] Further, earlier documents from 2005 onward, copies of which were provided to the worker  
when he received claim file disclosure in 2010 and in 2012 and which were also provided to the  
law firm when it received claim file disclosure as part of the request for review of the Board’s  
March 20, 2013 decision, would have also contained information regarding such notable matters  
as the mechanism of injury (for example, Dr. Gershman’s report) and the worker’s work  
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WCAT Decision Number:  
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activities after March 26, 2005 (for example, the entitlement officer’s memoranda of April 15  
and 18, 2005—two memoranda of the latter date—which document information supplied by the  
employer and the worker).  
[318] Other claim file documents such as Dr. Repsch’s late May 2005 chart notes, his later chart  
notes regarding later incidents, and his December 6, 2010 typewritten letter and the  
December 8, 2006 functional capacity report would have raised concerns as to whether the  
worker had continuous symptoms since 2005.  
[319] As well, the worker had been sent a decision letter in 2005 that would have made it clear the  
Board was under the impression he worked between March 31, 2005 and April 8, 2005. Further,  
it is clear that various documents prepared by Board officers in 2010 and 2013 noted such  
matters as the mechanism of injury accepted by the Board and Dr. Hosie’s April 7, 2005 chart  
note which refers to work activities.  
[320] Notably, the worker does not assert that the various documents referred to in the above  
five paragraphs (as well as other such notable documents as the April 25, 2005 decision  
document) were missing from claim file disclosures which were issued to him and the law firm in  
the years prior to the issuance of the WCAT decision.  
[321] Given the above, at the time of the appeal to WCAT, the worker and the law firm would have  
had access to considerable documentation that would have been relevant to such matters as  
the mechanism of injury, his post-injury work activities, any ongoing symptoms, any gaps in the  
worker’s treatment, and the occurrence of non-compensable incidents.  
[322] As part of contesting the Review Division decision, the worker tendered the report of Dr. Tarazi,  
which, given its date of April 16, 2014 and the short distance between his office and the office of  
the law firm, the law firm would have received by late April 2014, or at least by May 9, 2014  
when the law firm provided a copy to WCAT.  
[323] Thus, well in advance of the then-scheduled June 23, 2014 oral hearing, the worker and the law  
firm would have had an opportunity to consider whether there were any conflicts between the  
claim file evidence and the worker’s evidence as documented by Dr. Tarazi. Against the  
background of the worker and the law firm having had that opportunity, on June 9, 2014 the law  
firm asked that the oral hearing be cancelled and the appeal proceed by written submissions.  
[324] The worker does not assert in his reconsideration materials that the WCAT panel was obliged to  
give notice to the worker that as part of reviewing Dr. Tarazi’s opinion she would assess  
whether the history documented by Dr. Tarazi was consistent with earlier documents on the  
claim file, and I find she was not required to give such notice.  
[325] The notion that as part of adjudicating the appeal the WCAT panel might assess whether the  
history documented by Dr. Tarazi was consistent with earlier documents on the claim file would  
not have been a novel one or one that the law firm could not have envisioned. I say that  
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because it is commonly understood that the weight to be attached to an expert’s opinion may be  
contingent upon whether the facts relied upon by the expert are established by the evidence.  
This point is made in the following passage in item #97.34 of the Rehabilitation Services and  
Claims Manual, Volume II dealing with assessing conflicting medical opinions:  
A difference in conclusion between doctors may or may not result from a  
difference in medical opinion. For example, the difference could result from  
different assumptions of non-medical fact. Where there are two or more medical  
reports or memos on file from physicians, indicating different conclusions, the  
Board will not simply select among them as a first step. The Board should first  
think about why they are different and consider whether the relevant  
non-medical facts have been clearly established.  
[326] Given that the WCAT panel’s assessing of whether the history documented by Dr. Tarazi was  
consistent with earlier documents on the claim file could have easily been anticipated as a  
realistic possibility, I find WCAT was not obliged to give the worker and the law firm notice that  
the panel might conduct such an assessment.  
[327] For reasons set out below, I find that in addition to not having been required to give such notice,  
aside from any issue of notice, the WCAT panel was not required to hold an oral hearing at  
which she could put to the worker any apparent inconsistencies in his evidence as between  
2005 and 2014 (the latter documented in Dr. Tarazi’s opinion) and at which he could address  
those inconsistencies. As noted above, Dr. Tarazi’s opinion was submitted to WCAT in early  
May 2014, well in advance of the law firm’s June 9, 2014 request that the oral hearing be  
cancelled.  
[328] As part of preparing written submissions after receiving Dr. Tarazi’s April 16, 2014 opinion and  
WCAT’s June 11, 2014 letter granting the request to cancel the oral hearing in favour of the  
appeal proceeding by written submissions, the worker and the law firm would have had the  
opportunity to assess whether there were any conflicts between the claim file evidence and the  
worker’s evidence as documented by Dr. Tarazi. They could have asked that the oral hearing be  
reinstated so as to permit the worker an opportunity to speak to any conflict in the evidence or to  
speak to other matters relevant to his claim.  
[329] However, no request was made to reinstate the oral hearing.  
[330] The worker, through the law firm, made July 16, 2014 written submissions.  
[331] As part of drafting those written submissions, it would have been open to the worker and the law  
firm to have assessed whether the history documented by Dr. Tarazi was consistent with earlier  
documents on the claim file. It would have been open to the worker and the law firm to have  
made arguments as to any conflict in the evidence: they could have contested the accuracy of  
documents from 2005 found on the claim file. As well, they could have provided submissions  
arguing in favour of the history as documented by Dr. Tarazi. They could have provided further  
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evidence from the worker in written form to address various matters relevant to his claim, such  
as the mechanism of injury, his post-March 26, 2005 work activities, and his symptoms over the  
years, et cetera.  
[332] That the law firm did not address any conflicting evidence could have been a matter of strategy  
in that it did not want to raise for consideration conflicts in the evidence and thought that it might  
only need to do so if the employer raised the matter. As well, the law firm may have assumed  
that the panel would focus on documents from 2010 onward, including the worker’s 2011 and  
2013 statements.  
[333] As noted earlier, the worker was sent a copy of the law firm’s submission. It was open to him,  
given his having receiving disclosure of his claim file in 2010 and 2012, his having previously  
sent documents to the Board, and his having received copies of letters concerning the  
oral hearing and written submissions, to have raised with the law firm any concerns he might  
have had regarding the nature of the law firm’s submission or the nature of Dr. Tarazi’s opinion  
submitted to WCAT.  
[334] Notably, while the law firm’s submission was received by WCAT on July 16, 2014, the  
WCAT decision was not issued until November 5, 2014. I appreciate that once it was  
ascertained the employer would not be providing a submission, WCAT issued an August 15,  
2014 letter stating submissions were considered complete. However, well before August 15,  
2014 the worker would have had more than enough time after he received his copy of the  
July 16, 2014 submission to read it and raise any concerns with the law firm as to any need for  
further evidence and submissions favourable to his case to be provided to WCAT.  
[335] I find that, contrary to the worker’s arguments in his reconsideration materials, the absence of  
an oral hearing did not prevent the worker from supplying his evidence on various matters. In  
written submissions to WCAT, the worker could have provided evidence and arguments dealing  
with such matters as the mechanism of injury, his work activities subsequent to March 26, 2005,  
and the nature and course of his symptoms over the years. He did not require an oral hearing in  
which to provide such evidence and make submissions regarding such evidence.  
[336] As part of adjudicating the appeal, the WCAT panel had before her a July 16, 2014 written  
submission that did not ask for a reinstatement of the oral hearing. As well, the submission did  
not acknowledge the existence of any conflicts between the claim file evidence and the worker’s  
evidence as documented by Dr. Tarazi. It did not challenge the accuracy of evidence recorded  
in documents from 2005. It did not argue in favour of the WCAT panel accepting the worker’s  
evidence as documented by Dr. Tarazi over that recorded earlier on the claim file.  
[337] In the absence of a request to reinstate the oral hearing and in the absence of submissions  
addressing conflict between the claim file evidence and the worker’s evidence as documented  
by Dr. Tarazi, WCAT did not act unfairly by adjudicating the appeal without holding an oral  
hearing. In the absence of any express indication in the submission to WCAT that the worker  
contested the accuracy of much earlier evidence documented on the claim, I am not persuaded  
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the WCAT panel was obliged to hold an oral hearing before it could prefer that earlier evidence  
over the worker’s much later evidence as documented in Dr. Tarazi’s report.  
[338] I find it was open to the WCAT panel to proceed without an oral hearing and to render the  
decision that she did, especially in light of her comments in paragraph #72 that she was not  
saying the worker deliberately misrepresented the events of 2005 to Dr. Tarazi but rather she  
considered that, with the passage of time, the worker’s recollection was not accurate and his  
recollection as of 2014 could not replace the written record based on the information provided in  
2005.  
New evidence reconsideration grounds  
[339] Section 310 of the Act permits WCAT to reconsider a WCAT decision on the basis of new  
evidence:  
(1) This section applies to the following:  
(a) a decision in a completed appeal by the appeal tribunal under this  
Part or under Part 2 [Transitional Provisions] of the Workers  
Compensation Amendment Act (No. 2), 2002;  
(b) a decision in a completed appeal by the appeal division under a  
former enactment or under Part 2 of the Workers Compensation  
Amendment Act (No. 2), 2002.  
(2) A party to a completed appeal may apply to the chair for reconsideration of  
the decision in that appeal if new evidence has become available or been  
discovered.  
(3) On receiving an application under subsection (2), the chair may refer the  
decision to the appeal tribunal for reconsideration if the chair is satisfied that  
the evidence referred to in the application  
(a) is substantial and material to the decision, and  
(b) did not exist at the time of the appeal hearing or did exist at that time  
but was not discovered and could not through the exercise of  
reasonable diligence have been discovered.  
(4) Each party to a completed appeal may apply for reconsideration of a  
decision under this section on one occasion only.  
[340] I stress at the outset that my task in reviewing a new evidence reconsideration application is not  
to re-weigh the evidence or to address arguments as to how WCAT-2014-03255 considered the  
evidence. My task is not to address the merits of the issue on appeal.  
[341] My task is to determine whether new evidence reconsideration grounds have been established.  
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[342] In WCAT-2003-01120-AD, a former chair of WCAT made the following comments as to the tests  
of substantial and material evidence found in subsection 96.1(3) of the Act before its repeal in  
March 2003:  
I consider that “material” evidence is evidence with obvious relevance to the  
decision of the Appeal Division panel. I consider that “substantial” evidence is  
evidence which has weight and supports a conclusion opposite to the  
conclusion reached by the panel.  
[emphasis added]  
[343] Also relevant to the tests of substantial and material evidence are the comments of a former  
chief appeal commissioner of the former Appeal Division of the Board, who commented in  
Appeal Division Decision #00-0796 as follows:  
From the inclusion of “material” and “substantial” I take it that the legislature  
contemplated that something more than new and relevant evidence is  
required to give the Appeal Division authority to reconsider one of its previous  
decisions. What is required is new evidence that is important, having to do  
with the substance of the matter and which has sufficient substance or  
weight to support a particular conclusion. The standard is not as high as to  
provide proof on a balance of probabilities but it must be more than evidence  
that is only relevant. It need not be of such weight as to decide an issue one  
way or the other on its own but it must be more than simply evidence that is  
admissible. As a general matter it is not desirable or possible to be more specific  
than this and the circumstances of each application for reconsideration have to  
be considered in light of the requirements of section 96.1 of the Act.  
[emphasis added]  
[344] I agree with those interpretations of the terms “substantial” and “material.”  
[345] As for the interpretation of the “reasonable diligence” provision in section 310 of the Act, I am  
guided by WCAT-2003-01116-AD. In that decision, a former chair of WCAT adopted the  
following analysis in Appeal Division Decision #91-0724 (7 W.C.R. 145) regarding the concept  
of “due diligence” which applied to reconsideration applications made to the Appeal Division  
regarding Appeal Division decisions:  
I find, first of all, that the test of “due diligence” applies to the person requesting  
reconsideration rather than to the decision-maker. The most reasonable  
interpretation of section 96.1 is that it constitutes a bar to reconsideration to an  
applicant, where the basis for their request is that the prior commissioners or the  
Appeal Division did not consider evidence which the applicant could through the  
exercise of due diligence have obtained and submitted prior to the making of the  
impugned decision.  
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The effect of this provision is to place some onus on an appellant for  
ensuring that the Appeal Division is in possession of the information  
necessary to the proper consideration of their appeal in the first instance.  
While the Appeal Division functions on an inquiry basis, and may itself seek out  
additional information, an appellant should be aware of the ramifications of  
section 96.1 if they proceed with their appeal without taking reasonable steps to  
ensure that the evidence on file is complete.  
It is important to note, however, that the test of “due diligence” includes a concept  
of reasonableness as to the nature and scope of the inquiries an appellant is  
expected to have pursued. The fact that information previously existed and could  
have been obtained upon inquiry is not conclusive as to whether it could through  
the exercise of “due diligence” have been discovered. The circumstances of the  
particular case must also be considered, with regard to the extent of the inquiries  
which due diligence would have required.  
The question is not simply whether the appellant could have obtained the  
particular information if they had made diligent inquiries for the purpose of  
obtaining it. The requirement of “due diligence” is more properly interpreted  
as referring to the degree of care which a prudent and reasonable appellant  
would have exercised in ensuring that the Appeal Division had all relevant  
information necessary to the proper consideration of their appeal. If, for  
example, certain information existed, but it was not reasonably foreseeable that it  
would be germane to the Appeal Division’s consideration, “due diligence” would  
not have required the appellant to search it out. To interpret the requirement of  
“due diligence” otherwise would be to create an artificial and unrealistic legal  
barrier to reconsideration which, in my view, was not intended by the statute. The  
requirements of section 96.1 of the Act must be interpreted in a fair and  
meaningful fashion, with regard to the realities of the appeal process.  
[emphasis added]  
[346] While the test discussed above concerns due diligence, I consider it is relevant to the test in  
section 310 regarding reasonable diligence.  
[347] I find that the reasonable diligence requirements in section 310 of the Act impose an onus on  
appellants to provide evidence to WCAT as part of an appeal to WCAT. I accept the  
observations of the appeal commissioner in Appeal Division Decision #91-0724.  
[348] I pause to note that the issue of reasonable diligence concerns an obligation imposed on the  
reconsideration applicant when the applicant was an appellant before WCAT. Reasonable  
diligence does not address whether, after the issuance of a WCAT decision, an appellant acted  
in a timely manner to secure further evidence. Thus, the statement on page 2 of the August 13,  
2021 submission that since the WCAT decision it had taken time for the worker to consult with  
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doctors and get referrals to appropriate specialists does not address the matter of reasonable  
diligence.  
[349] The mere fact that documents submitted as part of a new evidence reconsideration application  
post-date the WCAT decision sought to be reconsidered does not, by itself, establish the  
document amounts to “new” evidence. The date of a document does not establish that the  
contents of that report are new evidence.  
[350] In that regard, I note the analysis in WCAT-2010-01348, which has been the subject of  
approval in other WCAT panel decisions such as WCAT-2010-03078, WCAT-2011-00348,  
WCAT-2011-00818, WCAT-2012-00661, WCAT-2014-01423, WCAT Decision A1604650, and  
numerous other cases.  
[351] The concern raised by those decisions is whether an opinion from a new physician that is based  
on the same evidence that was before an earlier WCAT panel can be reasonably characterized  
as new for the purposes of section 310 of the Act. The analysis in those cases posits that a  
medical opinion is not new evidence simply based on the identity of the physician but rather on  
whether the underlying factual matrix has materially changed. The decisions comment that a  
different factual matrix might include a change in knowledge about a medical topic or a change  
in the worker’s circumstances. I adopt that analysis.  
[352] In considering this matter, I note the decision in Erskine v. British Columbia (Workers’  
Compensation Appeal Tribunal), 2016 BCSC 936, which involved a judicial review of a  
WCAT reconsideration decision. The court determined that a reconsideration decision was  
patently unreasonable if it “focussed not on the original decision, but on the means or the  
avenue by which the decision was made.” The court stated that reconsideration concerned  
whether there was a change in the factual matrix on which the original decision was founded:  
[32]  
Almost by definition, new evidence has the potential to change the factual  
matrix on which the original decision was founded, and therefore to permit a  
different approach to the fundamental issue from that taken in the original  
decision. But by confining new evidence to that which relates to the line of  
reasoning in the original decision, the appeal tribunal’s interpretation of s. 256  
prevents a meaningful change to the factual matrix from which the original line of  
reasoning arose.  
[33]  
Such a result runs counter to the inherent nature and purpose of s. 256.  
Section 256 clearly intends to allow for a reconsideration of a decision when new  
evidence comes to light (so long as the due diligence requirement is met, and the  
evidence is material and substantial). For the appeal tribunal to limit a  
reconsideration to the line of reasoning on which the original decision was based  
is effectively to prevent new evidence from having any significance in a situation  
such as Mr. Erskine’s.  
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[353] I commence my analysis by reiterating that a reconsideration application is not an opportunity  
for an applicant to reargue the evidence that was before the initial panel. In that regard, I  
consider that under the heading on page 4 of “New Evidence Grounds for Reconsideration  
[emphasis omitted]” which concerns pages 4 through 11 of the July 8, 2021 submission, the  
worker makes a number of assertions that do not advance a new evidence reconsideration  
application. This is so because the assertions in effect take issue with how the WCAT panel  
weighed the evidence before her. As I noted much earlier in my comments about procedural  
fairness, my task in reviewing a new evidence reconsideration application is not to re-weigh the  
evidence or to address arguments as to how the WCAT panel considered the evidence. My task  
is not to address the merits of the issue on appeal.  
[354] While below I do not cite every example of a matter that I am unable to address, I do cite  
several examples to illustrate my point.  
[355] Under the heading “Contemporaneous Reporting 2005 to 2011 [underlining omitted],” in addition  
to arguing that the new evidence (which I will discuss below) has to be considered in the context  
of contemporaneous reporting and treatment records, the July 8, 2021 submission documents  
at page 9 the argument that “[t]here are continuing and consistent symptoms from 2005 that  
progress to the coccyx injury, coccydinia, and central pain sensitization symptoms diagnosed in  
the new medical evidence [emphasis added]. “  
[356] At page 10 the worker indicates he and his lawyer “do not agree [emphasis added]” with the  
WCAT panel’s characterization of early medical reporting from the date of injury up to the time  
the worker saw Dr. Church as evidence “that does not represent consistent and persistent  
symptoms of injury since 26 March 2005 and rapid worsening by 2009 [emphasis added].” In  
support, the work cites his comments regarding the contemporaneous reporting of  
Drs. Gershman, Hosie, and Repsch. The worker submits that the 2014 WCAT decision “errs  
respecting consistent and persistent symptoms of injury since 26 March, 2005 [emphasis  
added].”  
[357] In a similar vein, page 11 documents the assertion that the new medical evidence, “Endorses  
reporting in the contemporaneous medical record which indicates symptoms from the  
injury did not resolve only to recur seven years later [emphasis added].” Page 14 asserts that  
Dr. Gershman’s report and the later reporting from Drs. Hosie and Repsch “all speak to  
ongoing symptoms and treatment” and also asserts, “Ongoing symptoms led to later  
reporting from Drs. Church and Tarazi.” I note that much earlier on page 4, the submission  
refers to “persistent and disabling symptoms that started with the 26 March 2005 workplace  
injury.”  
[358] The assertions in the above three paragraphs in effect challenge the determination by the panel  
that Dr. Tarazi’s understanding that the worker continued to have back and tailbone pain  
throughout the time after his injury until 2009 when the pain started to get worse was “simply not  
correct” (paragraphs #70 and #73 of the panel’s decision). There is no scope for me to consider  
these assertions in the above three paragraphs as part of a new evidence reconsideration  
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application. It is not open to me to address any dispute the worker may have with the panel’s  
analysis of the evidence that was before the panel or the panel’s findings regarding that  
evidence. While such arguments might be open to the worker to argue on a judicial review, they  
are not arguments that are open to me to consider.  
[359] While I will consider whether there is new evidence as to the worker experiencing continuous  
symptoms following the March 26, 2005 incident and whether such evidence would satisfy the  
new evidence reconsideration grounds, analysing whether there is new evidence that  
establishes reconsideration grounds is different from re-weighing the evidence before the panel.  
[360] A further example of what appears to be the worker’s disagreement with the analysis of the  
panel is his assertion on page 9 that it was “factually incorrect for the 2014 WCAT decision to  
characterize the reopening request that was before it as a circumstance where the injury had  
resolved and was recurring seven years later [emphasis added].” In support of that assertion,  
the worker refers to Dr. Gershman’s May 18, 2005 report; Dr. Repsch’s December 6, 2010  
report and his reporting from 2005 to 2010; and Dr. Hosie’s February 20, 2011 handwritten note  
and his reporting from 2005 to 2010.  
[361] Also on that point, somewhat later at page 14 of the submission, the worker asserts that the  
WCAT panel’s finding in paragraph #79 that the low back strain accepted under the claim had  
resolved by the time the worker returned to work in May 2005 was “not correct [emphasis  
added] “ as indicated in the reporting from Dr. Gershman. Also on that page, the worker asserts  
that the panel’s finding as to the unlikely and improbable recurrence in 2012 of a soft tissue  
injury from 2005 is also “not correct [emphasis added].”  
[362] In considering the above assertions, I note that the panel found in paragraph #79 that the low  
back strain resolved by the time the worker returned to work in 2005. That determination ties  
into the panel’s analysis of the issue of reopening in that, as part of analysing that issue, the  
panel determined the concern was not whether there had been a significant change in a  
compensable condition (the only one on the claim being the 2005 sprain/strain which had  
resolved). Given that under the reopening provision in the Act the only basis for reopening was  
a recurrence of the 2005 low back strain, the panel concluded that if the low back strain did not  
recur in 2010 and the low back symptoms of 2010 continued into 2012, the claim could not be  
reopened in 2012. The panel was required to examine the issue of recurrence as part of  
addressing whether the claim should be reopened and its analysis of the matter of recurrence  
should be understood in that light.  
[363] The argument as to the panel being incorrect does not concern a matter of new evidence. It is  
not open to me to consider that argument as part of this application. I add that the apparent  
assertion that, in her assessment of the matter of a reopening, the panel erred in considering  
the issue of a recurrence seems inconsistent with the following comment on page 4 of the  
July 8, 2021 submission that, “The 2014 WCAT decision found sprain/strain injury had resolved  
which we would not dispute were the injury solely a sprain/strain injury [emphasis added].”  
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[364] In a related vein on the matter of a reopening, the worker contends at page 10 of the  
submission that the 2014 WCAT decision “overlooks the prior reopening request effective 2010  
[emphasis added].” With respect, this submission appears to overlook the panel’s analysis in  
paragraphs #61 through #63 in which the panel notes that in April 2011 the Review Division  
denied reopening of the claim for low back symptoms in 2010. The WCAT panel agreed with the  
analysis of the review officer in the November 15, 2013 Review Division decision that if the  
claim was not reopened for low back symptoms in 2010 and the same symptoms continued into  
2012, the claim could not be reopened in 2012.  
[365] Thus, the panel did not “overlook” the prior reopening request effective 2010. However, even if  
the panel did overlook it, it would not appear that such an overlooking would provide a basis for  
me to reconsider the panel’s decision. A failure to take into account relevant evidence or a  
relevant consideration would appear to be a matter that could be raised on judicial review, but I  
find it is not a matter that may be addressed as part of the two forms of reconsideration that are  
before me.  
[366] I add that there may be some question as whether the panel’s determination that if the claim  
was not reopened for low back symptoms in 2010 and the same symptoms continued into 2012,  
the claim could not be reopened in 2012, would be eligible for new evidence reconsideration.  
The panel appears to have determined that a reopening of the claim was legally precluded in  
2012 owing to the effect of the April 7, 2011 Review Division decision, combined with the fact  
that the symptoms in 2010 continued into 2012 and were the symptoms for which the worker  
sought reopening.  
[367] If indeed the symptoms in 2012 were a continuation of the 2010 symptoms, then I consider the  
panel’s reopening analysis would potentially be beyond a new evidence reconsideration  
application. I appreciate that if the symptoms in 2012 were different from those in 2010, then the  
April 7, 2011 decision would not be binding in the manner envisioned by the panel.  
[368] I do not need to resolve this matter, as I find that my decision does not turn on considerations  
associated with such an approach to the issue of the 2012 reopening.  
[369] I now turn to the three areas of evidence I have considered as part of a new evidence  
reconsideration application.  
The worker’s affidavit  
[370] The worker has supplied a nine-page affidavit which is accompanied by 32 pages of exhibits.  
[371] Paragraphs #1 through #32 in the first six pages of the affidavit cover such topics as the  
worker’s pre-injury situation, the mechanism of injury, his statements prepared in 2011 and  
2013 found on the claim file, his need to be off for treatment from April to May 2005, his return  
to work in May 2005, his employment from 2005 to 2009, the reopenings in 2010 and 2012, and  
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the reliance of his law firm in the 2014 appeal to WCAT on the reports from Drs. Brown, Church,  
and Tarazi.  
[372] Paragraph #33 documents the worker’s understanding that the entirety of his symptoms,  
including back pain and radiating leg pain, were never properly addressed until later reporting  
by Drs. O’Brien, Svorkdal, and Fern in 2015, 2016, and 2020. Paragraph, #34 documents the  
worker’s statement that the 2015, 2016, and 2020 medical evidence “is the main reason I have  
now applied for reconsideration of the 2014 decision but there are also issues with fraudulent  
documents from the accident employer and denial of procedural fairness that I address below.”  
Paragraph #34 is followed by the heading “Fraudulent Accident Employer Reporting and  
Significant New Evidence [underlining omitted].”  
[373] It does not appear that the worker considers that any evidence documented in paragraphs #1  
through #32 of his affidavit is significant new evidence. I say that because of the worker’s  
comments in paragraph #34 which refer to specific post-WCAT decision medical evidence and  
the fact that paragraphs #1 through #32 precede the heading in the affidavit which refers in part  
to “Significant New Evidence.” Paragraphs #1 through #32 are not listed after that heading.  
[374] However, in an abundance of caution, I have reviewed the initial six pages of the worker’s  
affidavit to ascertain whether they establish new evidence reconsideration grounds.  
[375] Given that many of the paragraphs in those first six pages document evidence that was within  
his own personal knowledge (such as the mechanism of injury, his post injury activities, his  
symptoms over the years, his employment over the years, and his seeking medical treatment  
over the years), there can be no question that such evidence was known to the worker at the  
time of the appeal to WCAT.  
[376] To the extent that those first six pages contain any evidence that was not part of the claim file at  
the time of the appeal to WCAT, I find that the submission via his affidavit of such evidence as  
part of the reconsideration application does not satisfy the new evidence reconsideration  
grounds. Significantly, the first six pages of the affidavit and the submissions authored by the  
worker’s lawyer contain no assertion that any of the evidence in those first six pages did not  
exist at the time of the appeal or did exist and could not through the exercise of reasonable  
diligence have been discovered.  
[377] I find it is not necessary to consider whether the evidence in those first six pages is substantial  
or material. Pursuant to the reasonable diligence requirement, it was incumbent upon the  
worker as a prudent appellant to have submitted such evidence to WCAT as part of the appeal.  
[378] In referring to a prudent appellant, I document that I am aware of the worker’s statements as to  
his personal circumstances. In that regard, I note that the worker states in paragraph #28 that  
the medical evidence he had when he first applied to reopen his claim in 2010 was very  
rudimentary, consisting of brief comments from Drs. Hosie and Repsch. In that paragraph, he  
states he did not review disclosure, provide file information to the doctors, make specific  
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requests for detailed reporting or ask for specialist referrals and investigation. He states that  
was a mistake. The workers’ adviser did not give him direction in this.  
[379] Further assertions regarding the nature of the worker’s interactions with the Board are found in  
paragraphs #48 and #49 of his affidavit. He states that his understanding of how to deal with  
Board issues in terms of procedure and evidence has changed over time. He states he made  
mistakes with his reopening request in 2010 and 2012, underestimated the need for detailed  
medical evidence, and missed an appeal deadline.  
[380] In paragraph #32 the worker documents his belief that as part of the appeal the law firm relied  
on very specific reporting about his coccyx area from Dr. Brown and Dr. Church, and on  
specialist reporting obtained from Dr. Tarazi. The worker comments that at the time this seemed  
to be the correct approach, but now he thinks that the evidence in the 2012 reopening request,  
and particularly leading to the 2014 WCAT decision, did not address the entirety of his  
symptoms, the continuity of his symptoms, or the cause of his symptoms, as clearly as it should  
have had. The evidence focused on one aspect of his symptoms related to his coccyx and very  
specific diagnosis from Dr. Tarazi. Paragraph #49 also touches on the appeal in that it states he  
relied on representation and specialized reporting that was not sufficient to address the issues  
and evidence before WCAT, particularly in relation to the evidence from the accident employer  
and the Board medical advisor’s clinical opinions that, for the most part, focused on soft tissue  
injury.  
[381] While I do not doubt that the worker was not an expert in workers’ compensation matters at the  
time he pursued his appeal to WCAT, my consideration of his position as a prudent appellant  
must take into account the fact that he was represented by a law firm and that both he and the  
law firm had received disclosure of his claim file that would have included numerous documents,  
some of which would not have been favourable to the worker’s case. The worker and the law  
firm would have been alerted to issues of concern via those claim file documents and via the  
decisions issued on the claim.  
[382] Through disclosure of claim file documents in 2010, 2012, and 2013, as well as his receiving  
decisions from the Board, the worker would have been aware of information on his claim. To  
the extent that the worker’s evidence in his affidavit is contrary to the contents of claim file  
documents, including decisions which summarized information on the claim file, it was  
incumbent upon the worker to have submitted the evidence in his affidavit as part of his appeal.  
Further, to the extent that the worker’s affidavit reiterates evidence that was already on the  
claim file or points to evidence that was already on the claim file, the affidavit does not contain  
new evidence.  
[383] I illustrate my points with several examples. My illustration below does not purport to be  
exhaustive but rather provides examples to illustrate my points.  
[384] The worker would have known from the decisions of September 2, 2010 and March 20, 2013  
that the Board considered that the mechanism of injury involved his landing on his feet and not  
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falling. Further, he would have known that the very early documents on the claim file suggested  
an onset of pain the day after the March 26, 2005 incident and made no reference to his being  
rendered unconscious. His affidavit at paragraph #6 describes in great detail the mechanism of  
his injury. Notably, the description asserts that he landed on his feet, his legs collapsed, and he  
struck his buttocks or tailbone. When he regained consciousness, he felt immediate back pain.  
[385] Given that the affidavit documents evidence at odds with the earlier information on the claim file,  
reasonable diligence required him to have submitted that description at the time of his appeal.  
Its submission as part of his new evidence reconsideration application does not assist him.  
[386] In paragraph #6, after mentioning that he saw Dr. Hosie on March 29, 2005, the worker declares  
that he “remained off work for about six weeks.” In paragraph #10 the worker asserts that  
Dr. Hosie’s April 7, 2005 chart note is “not correct” when it indicates that he tried work on  
March 31, 2005 and on April 1, 4, 5, and 7, 2005. Of note, page 12 of the July 8, 2021  
submission asserts that the worker “states he did not return to work from the date of injury on  
26 March 2005 to late May 2005 (a fact which we submit speaks to severity).” Page 13  
declares, “The worker did not return to work for almost two months.”  
[387] Yet, the worker would have known through disclosure of his claim file (which would have  
included such documents as Dr. Hosie’s April 7, 2005 chart note, the entitlement officer’s  
April 15, 2005 memorandum, the April 18, 2005 memorandum, and the April 25, 2005 decision  
document), and through his receipt of the Board’s April 25, 2005 decision letter, that the Board  
was under the impression that he worked for several days between March 29, 2005 and April 8,  
2005.  
[388] As well, as noted above, in several instances, Board documents that would have been  
included in disclosure provided to the worker and the law firm referred to Dr. Hosie’s April 7,  
2005 chart note. Further, the worker was documented in the entitlement officer’s April 20, 2005  
memorandum (a document that would have been disclosed to the worker and the law firm) as  
stating his paycheque to April 15, 2005 concerned 60 hours—a figure which would suggest he  
worked after March 26, 2005. Earlier, an April 6, 2005 memorandum documented that the  
worker returned to work, albeit he was not ready to.  
[389] Given all of the above, reasonable diligence would have required him at the time of the appeal  
to have submitted his assertion that he remained off work for about six weeks and that  
Dr. Hosie’s April 7, 2005 chart note was incorrect. His submission of that evidence as part of his  
new evidence reconsideration application does not assist him.  
[390] In paragraph #7 of his affidavit the worker refers to his statements from 2011 and 2013 found on  
the claim file, which are attached to his affidavit as exhibits. In paragraphs #8 through #13 the  
worker refers to documents from Drs. Hosie, Repsch and Gershman. His resubmitting of  
information that was on the claim file at the time the WCAT panel issued her decision and his  
referencing information that was on the claim file at the time the WCAT panel issued her  
decision does not amount to the submitting of new evidence.  
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[391] Paragraphs #22, #25, and #26 concern the worker experiencing symptoms from 2005 onward.  
In paragraph #22 he asserts that his symptoms persisted from March 26, 2005 onwards and  
always involved his coccyx and low back. In paragraph #25 he asserts that his back pain and  
radiating pain continued to get worse. In paragraph #26 he asserts his symptoms began  
immediately after the March 26, 2005 workplace injury and noticeably worsened within three or  
four years. While not found in the first six pages of his affidavit, I note that in paragraph #46 the  
worker asserts that his symptoms started immediately after the March 26, 2005 fall and rapidly  
progressed over four years until he was disabled.  
[392] The worker would have known from disclosure of claim file documents such as Dr. Repsch’s  
chart notes of May 2005 and his December 6, 2010 letter, the functional capacity report of late  
2006, and Dr. M. Brown’s August 4, 2009 report submitted by the worker that there was  
evidence on the claim file suggesting the worker did not experience continuous symptoms from  
2005 onward. As a prudent appellant, it was incumbent upon the worker to have submitted as  
part of the appeal to WCAT in 2014 any evidence as to his experiencing continuous symptoms  
following his accident in March 2005. His submitting of this evidence as part of the new  
evidence reconsideration application does not satisfy the reconsideration grounds.  
[393] As noted above, page six of the worker’s affidavit contains a section heading entitled  
“Fraudulent Accident Employer Reporting and Significant New Evidence.” Paragraphs #35  
through #41 are listed under that heading.  
[394] In paragraph #35 the worker indicates he disagrees with the employer’s evidence summarized  
at paragraphs #14 and #15 of the 2014 WCAT decision. As noted earlier in my review of the  
WCAT panel’s decision, in paragraphs #14 and #15 the panel summarized information provided  
by the employer that was documented in the entitlement officer’s April 15, 2005 memorandum.  
The worker asserts in paragraph #36 of his affidavit that the employer’s evidence “minimizes the  
extent of the injury and is entirely wrong about chronology addressed above and that is  
documented in my 2011 and 2013 statements.” As noted much earlier in my decision, in  
paragraph #37 the worker asserts, “I did not see the employer’s evidence until after the 2014  
WCAT decision.”  
[395] In considering the above, I note that the worker does not expressly assert that the paper  
disclosures of his claim file that he received in 2010 and in 2012, and that the law firm received  
in 2013, did not contain the entitlement officer’s April 15, 2005 memorandum summarized by the  
WCAT panel in paragraphs #14 and #15 of her decision.  
[396] I am aware that at points during the claim, the worker asserted that compact disc disclosure of  
the worker’s claim file obtained by a different lawyer in early 2015 when the worker was  
considering judicial review of the WCAT decision contained six pages that were not included in  
previous disclosure. The worker does not appear to expressly reiterate that assertion as to  
the six additional pages in his affidavit, other than perhaps what could be inferred from  
paragraph #37 of his affidavit. Yet, the worker does not expressly assert that the April 15, 2005  
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memorandum was one of those six pages that was not included in disclosures received prior to  
the issuance of the WCAT decision  
[397] Given that the April 15, 2005 memorandum was obviously available to the WCAT panel at the  
time she issued her decision, I have no reason to conclude it was not present on the claim file  
prior to the issuance of that decision (and earlier provided as part of disclosures to the worker  
and his law firm), as opposed to accepting it was withheld from three disclosures issued prior to  
the WCAT decision but added to the claim file after the WCAT decision and therefore available  
for disclosure when the worker’s new lawyer obtained compact disc disclosure. The notion that  
prior to the appeal six pages of documents relevant to his claim were withheld from disclosure in  
2010, 2012, and 2013 but were then made available for disclosure after the WCAT panel  
decision seems unlikely. Why would improperly withheld documents be added to the claim file at  
which point copies could be obtained and the worker could be alerted to their existence?  
[398] It must be kept in mind that not only does the worker assert that six pages were not found in  
earlier paper disclosure of his claim file, he contends that several of those pages were  
fraudulent and were submitted by his employer. Thus, the notion is that not only did his  
employer submit fraudulent documents, those documents were withheld from disclosure. The  
worker does not appear to have asserted that the Board was engaged in a conspiracy with the  
employer. Yet the notion that there would have been some form of conspiracy or some other  
form of improper behaviour by the Board would seem to be implicit in the worker’s assertions.  
Why or how would disclosure omit the employer’s fraudulent documents unless the Board took  
steps to ensure that prior to the WCAT decision the worker and the law firm did not get copies of  
the fraudulent documents and was not aware of evidence that was unfavourable to his case?  
[399] Even if the April 15, 2005 memorandum was for some inexplicable reason not provided as part  
of disclosure in 2010, 2012, and 2013, the fact that the employer had contacted the Board and  
had provided information to the Board and shared its concerns regarding the nature of the  
worker’s injury would have been drawn to the worker’s attention in the entitlement officer’s  
April 18, 2005 claim review memorandum. The worker does not expressly assert that the April  
18, 2005 claim review memorandum was not included in disclosures issued prior to the WCAT  
decision.  
[400] Significantly, the April 18, 2005 claim review memorandum refers to the employer’s April 11,  
2005 letter which listed concerns. That memorandum notes that the entitlement officer called  
the employer to clarify matters, the employer indicated there was no time loss until almost  
two weeks later, and the employer had concerns regarding the inconsistent behaviour of the  
worker. The April 18, 2005 memorandum refers to an April 15, 2005 claim log entitled “Employer  
Information.”  
[401] Thus, even if the worker and the law firm had not received as part of disclosure a copy of the  
April 15, 2005 memorandum, he would have been alerted to its existence as a result of his  
receiving a copy of the April 18, 2005 claim review memorandum as part of receiving disclosure  
in 2010 and 2012, and as part of the law firm receiving disclosure in 2013.  
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[402] Once alerted to the existence of the employer’s April 11, 2005 letter and the April 15, 2005  
document which recorded information supplied by the employer, it would have been open to the  
worker and/or the law firm to have contacted the Board to assert that disclosure was  
incomplete.  
[403] Further, the notion that the worker undertook some work activities in two weeks subsequent  
to his March 26, 2005 incident is documented in the entitlement officer’s other April 18, 2005  
memorandum documenting the results of her conversation with the worker. That memorandum  
documents that the issue of the worker working on March 28, 2005 was raised with him, as well  
as the issue that the worker worked regular hours from March 31 to April 7, 2005. While the  
worker was adamant that he did not work those regular hours, he stated he received a  
paycheque to April 15, 2005 which paid him for 60 hours, a turn of events which would be  
inconsistent with his not having worked at all from April 1, 2005 onward.  
[404] I note that the worker does not expressly assert the April 18, 2005 memorandum documenting  
that conversation was not included in disclosures issued prior to the 2014 WCAT decision.  
[405] Further, the April 25, 2005 decision document noted above also records that the Board  
understood that the worker undertook work activities after the March 26, 2005 incident. The  
worker does not assert that that memorandum was not included in disclosures prior to the  
WCAT decision  
[406] Given that I am not persuaded that prior to the appeal to WCAT the worker and the law firm  
would have been unaware of the existence of the evidence provided by the employer or the  
worker’s own evidence as to his April 15, 2005 paycheque, I am not persuaded that any  
statements in the worker’s affidavit taking issue with the employer’s evidence amount to his  
providing evidence which would satisfy the new evidence reconsideration grounds. As a prudent  
appellant, it would have been incumbent upon him to have provided as part of his appeal any  
evidence which contested the employer’s evidence that the worker considers minimized the  
extent of the injury and the impact of the injury.  
[407] The worker’s assertion that the employer’s evidence is entirely wrong about the chronology that  
is documented in his 2011 and 2013 statements amounts to the worker taking issue with how  
the WCAT panel chose to weigh the evidence. As noted earlier in my decision, a new evidence  
reconsideration application is not an opportunity for an applicant to pursue disagreements with  
how an initial WCAT panel weighed the evidence.  
[408] In paragraph #38 of his affidavit, the worker asserts that after the WCAT panel decision he  
“began to be more proactive about my Work Safe BC claim, issues with what the employer had  
stated in evidence, and a better understanding of my injury.”  
[409] While the worker may have become more proactive after the issuance of the WCAT panel’s  
decision, I am not persuaded that prior to the issuance of the decision he would have not had an  
opportunity to be aware of the fact that the employer had provided evidence to the Board in  
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2005 (let alone being aware of the actual contents of that evidence) or persuaded that he did  
not have an opportunity to address such evidence as a prudent appellant.  
[410] In paragraph #39, the worker refers to Exhibit F, which consists of three documents:  
The first document is a March 16, 2015 letter from a workers’ adviser, who noted that  
several days earlier the law firm had asked for additional disclosure for the worker’s claim  
file and the worker had advised the Board he would be obtaining advice from his lawyer on  
March 20, 2015. The workers’ adviser stated that when a lawyer is representing a worker,  
her office (the WAO) would not participate. Therefore, she would not be contacting the  
worker regarding his claim.  
The second document is a July 15, 2015 letter from an ombudsperson officer advising the  
worker of a preliminary decision that her office would not investigate the worker’s complaint  
concerning the WAO. The WAO had told the worker in March 2015 that it did not believe the  
worker was likely to succeed as there was no new medical evidence to present.  
Subsequently, the worker received disclosure from the Board that included fraudulent  
documents submitted by his employer. He complained to the Ombudsperson that the WAO  
had failed to support him and access these documents sooner. The ombudsperson officer  
noted she had spoken to a workers’ adviser who had not dealt with the worker (without  
providing that workers’ adviser with any identifying information about the worker) and that  
workers’ adviser informed her the WAO might be able to help the worker. The  
ombudsperson officer indicated that as the worker had not raised his concern about  
fraudulent documents with the WAO and allowed the WAO to reconsider whether it could  
help, an investigation did not appear to be necessary.  
The third document is a November 4, 2015 email from the workers’ adviser who issued the  
March 16, 2015 letter noted above. She noted the worker had contacted her office to ask for  
a written explanation as to why she would not assist the worker with his reconsideration  
request. She noted the worker sought a reconsideration because WCAT relied on fraudulent  
documents. The worker indicated the Board was engaged in a fraud investigation. The  
workers’ adviser told him to return to discuss his request with her if fraud was established.  
She stated she was not authorized to investigate fraud and could not assist with that matter.  
[411] While those documents post-date the WCAT decision and contain new evidence, they do not  
support reconsideration of the WCAT decision because they do not contain substantial and  
material evidence regarding the WCAT decision. Rather, they illustrate why the worker, as  
noted in paragraph #40, retained Mr. Babb to undertake an examination of certain documents.  
The worker asserts in that paragraph that he hired Mr. Babb “to review documents my accident  
employer provided.”  
[412] In paragraph #41 the worker states that Mr. Babb’s March 7, 2016 report is part of the  
significant new evidence for his reconsideration, but secondary to the medical evidence.  
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Mr. Babb’s report  
[413] I now turn to Mr. Babb’s report. I note at the outset that all the copies of his report on the claim  
file and in the reconsideration materials are in black and white. As no colour copies are found in  
the evidence, I do not know which aspects of the timecards and the worker’s report of injury  
were marked in red. As established below, I find that his report is not persuasive given the  
overall documentation on the claim file. It is not substantial evidence. Further, I find that the  
worker’s relying on Mr. Babb’s report does not satisfy the reasonable diligence requirement  
associated with new evidence reconsideration applications. As a result, I did not find it  
necessary to request a colour copy of his report.  
[414] As established above, Mr. Babb asserts that the signature found on the letter addressed to the  
entitlement officer and received by the Board on April 21, 2005 is likely not that of the worker.  
Mr. Babb asserts that some of the handwriting on the worker’s report of injury and the timecards  
is not that of the worker.  
[415] There is no suggestion that Mr. Babb reviewed original documents. His report indicates he  
viewed the questioned handwriting “at 200% on the computer screen.” Presumably, he did so as  
part of reviewing scanned documents, the images of which were included in disclosure which  
was provided to Mr. Babb. I note he refers to the “poor quality of the copies.” This would appear  
to be an allusion to the difficulty of assessing scanned images of documents rather than the  
documents themselves.  
[416] I strongly question the persuasiveness of Mr. Babb’s assessments simply on the basis he  
provides no reasons for his assertions in his opinion. His opinion amounts to bare declarations  
unsupported by any analysis.  
[417] In that regard, he does not state why the signature on the letter received on April 21, 2005 was  
not authored by the worker. He makes no reference to the qualities of that signature that might  
make it different from signatures found on pages of handwriting known to be that of the worker.  
The same criticism is applicable to his assertion that some of the handwriting on the other  
two documents was not authored by the worker. He does not state why that is so. Bare  
declarations from an expert do not establish that the expert brought any expertise to the  
assessment.  
[418] Aside from the absence of any reasons, I consider that the weight to be attached to his opinion  
is affected by the method of assessment employed by him, his comments regarding the  
quality of the copies, and the absence from his report of any comments as to the reliability or  
persuasiveness of any assertions that a document examiner can make in such circumstances.  
[419] Given the above, I find his report is not substantial evidence.  
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[420] There are additional reasons for finding his report is not substantial evidence. I find that the  
persuasiveness of his opinion can be tested when one takes into account the overall  
documentation available.  
[421] Before commencing my review of other documentation, I note that the assertion that the  
signature on the April 21, 2005 document is not that of the worker and some aspects of the  
worker’s report of injury and the timecards are not in the worker’s handwriting could be  
interpreted to imply that the documents were not authored by the worker. Even if Mr. Babb did  
not intend to imply such a statement, I consider it is reasonable to conclude the worker would  
like it inferred that the documents were not authored by him and were not submitted to the  
Board by him.  
[422] Who else would be the author and submitter of the documents? Seemingly the worker considers  
that the employer was the author and submitter. While not spelled out, the implication would  
seem to be that the employer took it upon itself to prepare three misleading documents and  
submit them to the Board in a fashion that made it look like the worker was the author of the  
documents and agreed with their contents. This would have been done in an attempt to portray  
the worker’s injury as less severe than it was, with a view to misleading decision-makers who  
would be issuing decisions concerning the worker’s entitlement to benefits.  
[423] Given the overall documentation available, how likely is this?  
[424] For many of the reasons set out in the October 11, 2016 memorandum of the supervisor, Field  
Investigations, summarized earlier in my decision, I consider it is not at all likely. As can be seen  
below, I have found additional reasons that were not documented by the supervisor.  
[425] I find that the report of Mr. Babb does not support a decision contrary to that reached by the  
WCAT panel for the simple fact that the notions that the letter received on April 21, 2005 was  
not authored by and signed by the worker, that the worker’s report was not authored by and  
signed by the worker, and that those documents and the timecard information were not  
submitted by the worker to the Board are so implausible as to mean that Mr. Babb’s report or  
any inferences one might make from that report as to the authenticity of various documents are  
entitled to little if any weight. Below, I highlight some of the reasons which feature strongly in my  
conclusion on this point.  
[426] Significantly, the worker’s April 11, 2005 application for compensation and the letter/ timecards  
received by the Board on April 21, 2005 were faxed from the same pharmacy. I note the worker  
stated to the supervisor he did not submit an application for compensation and the only time he  
saw the application was when he received a compact disc a year prior to speaking to the  
supervisor.  
[427] Notably, the worker did not obtain an opinion from Mr. Babb questioning the authenticity of the  
signature on the application for compensation. This is so even though prior to Mr. Babb’s report  
the worker raised a concern as to whether the signature on the application was his. He raised  
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the matter with a manager, Client Services, in February 2015, one year before Mr. Babb’s  
report. Yet, despite having raised the matter with the Board, he did not obtain an expert opinion  
from Mr. Babb on the matter.  
[428] Significantly, documents from 2005 on the claim file record that the worker was sent an  
application form, that he advised the Board he received it and would submit it, and that in a  
letter to the worker the Board acknowledged its receipt. Against the background of such  
documents, the worker’s assertion in 2016 that he never submitted an application is quite  
curious.  
[429] If he did not submit an application to the Board but yet received a letter from the Board that  
acknowledged receiving an application from the worker, one would think he would have  
contacted the Board in 2005 to ask what sort of document the Board had allegedly received  
from him. The materials on file do not document that the worker raised such a matter at the  
time. As well, the worker makes no assertion as part of his reconsideration application that he  
contacted the Board in 2005 to contest the notion that the Board received an application from  
him.  
[430] The idea that someone other than the worker (possibly his employer?) submitted an application  
in his name strikes one as slightly absurd. Consider the ramifications associated with the  
submitting of such a fraudulent application on this claim. The person who submitted the  
application would have actually assisted the worker in getting the claim accepted given that the  
Board wanted a formal application from the worker. Yet that person would have run the risk that  
information in the application which diminished the significance of the injury would have been  
shared by the Board with the worker during his dealings with the Board at the outset of the  
claim, such that, when apprised of such information, the worker could have learned of the  
existence of the fraudulent application. Any fraudulent scheme would have been undone.  
[431] I have little persuasive basis to question the authenticity of the worker’s application. If the  
application is authentic, I am then faced with considering whether it is likely that on April 21,  
2005, someone used the same pharmacy that was used to submit the application to the Board  
to, in turn, fax the documents received on April 21, 2005 in an attempt to make it look as if one  
individual, the worker, was using the same pharmacy to supply documents to the Board.  
[432] For the employer to have gone to the pharmacy on April 21, 2005 to make it look as if it was the  
worker sending documents to the Board, it would have had to have known that several days  
earlier the worker used that same pharmacy to fax the application to the Board. The worker  
makes no assertion to that effect.  
[433] I appreciate the worker told the supervisor he never used that pharmacy and only used other  
locations for faxing. He was unaware that the pharmacy had faxing services. Yet, such  
assertions in 2016 do little to challenge the persuasiveness of the documentation from 2005.  
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[434] I find it significant that the documents received by the Board on April 21, 2005 followed, by one  
day, the worker’s declaration on April 20, 2005 to the entitlement officer that he had obtained his  
timecards from work and would fax them to the entitlement officer’s direct line. Thus, shortly  
after the worker advised the Board that he had obtained the timecards, copies were received by  
the Board.  
[435] The worker does not argue that the employer would somehow have been privy to the contents  
of his April 20, 2005 conversation with the entitlement officer such that it would have known to  
take action in between that telephone conversation and the documents arriving at the Board the  
next day, to make it look as if the worker was submitting a letter and timecards to the Board.  
[436] Further, the worker does not assert that on April 20, 2005, the entitlement officer did not speak  
with him but rather spoke with someone from the employer who was passing themselves off as  
the worker so that it would look like the timecards and letter that arrived at the Board the next  
day had come from the worker, even though they had not.  
[437] I find that such circumstances outlined in the three paragraphs noted immediately above provide  
a basis to conclude the worker sent the letter and the timecards to the Board on April 21, 2005.  
As part of such analysis of the circumstances, I do not even need to rely on the fact that the  
worker’s application was faxed from the same pharmacy.  
[438] Even if some of the handwriting on the timecards is not that of the worker, I find that such  
circumstances would not raise a significant concern. I note that the supervisor’s memorandum  
documents that the worker stated that while the timecards were not completed by him, they  
could have been completed by the employer.  
[439] That the employer may have completed the timecards (and perhaps erred in spelling the name  
of a particular product) would not be problematic if the timecards were submitted to the Board  
by the worker. If they were, that would suggest the worker had them in his possession and took  
no exception to their contents. If he had taken exception to their contents, he would not have  
submitted them to the Board or would have submitted them but warned the Board about  
concerns regarding their accuracy.  
[440] The timecards document that the worker worked a number of hours following March 26, 2005.  
Such documentation is consistent with the worker’s advice to the entitlement officer recorded in  
her April 18, 2005 memorandum that the worker was paid 60 hours in connection with his  
paycheque to April 15, 2005. I note that one portion of the sheet documenting the timecards  
appears to contain a reference to “60 REG,” which could be a reference to 60 regular hours.  
[441] I do not consider it is necessary for me to conduct a detailed assessment of whether the hourly  
totals listed for various days from March 24 to April 7, 2005 would have resulted in the worker  
being issued a paycheque for 60 hours for the time period up to April 15, 2015. I note I am not  
privy to what pay periods the employer relied upon, and I am not privy to whether the timecards  
were indeed the actual basis for the paycheque referred to by the worker.  
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[442] I consider it is enough that the Board’s receiving timecards pointing to the worker having worked  
a number of hours subsequent to March 26, 2005 is generally consistent with his advising the  
entitlement officer that he received a paycheque for a number of hours worked in the pay period  
up to April 15, 2005. That general consistency suggests that the timecards referred to by the  
worker as being in his possession during his conversation with entitlement officer are the  
timecards received by the Board one day later.  
[443] I am not persuaded that the timecards were submitted to the Board by someone other than the  
worker. They were submitted in conjunction with the letter received by the Board on April 21,  
2005. As noted above, those documents were received by the Board one day after the worker  
indicated he would send timecards to the Board.  
[444] I now turn to the matter of whether the worker’s report of injury is fraudulent. I am not at all  
persuaded that the telephone number listed for the worker in that form was inaccurate, such that  
one could argue the report must have been filled out by someone other than the worker, a  
person who would be expected to have known his own telephone number. I find the notion that  
someone other than the worker filled out the worker’s report and in doing so provided an  
incorrect telephone number for the worker is not at all persuasive. My reasons follow.  
[445] Numerous documents at the outset of the claim record that the worker was contacted by the  
Board at the telephone number ending in 4670, which is noted in the worker’s report of injury.  
As well, documents from the offices of Drs. Repsch and Hosie list the worker’s telephone  
number as ending in 4670. In that regard, Dr. Hosie’s chart notes list that number and his  
reports submitted directly to the Board list that number. All of that evidence suggests that the  
worker’s telephone number at the time ended in 4670.  
[446] The worker’s assertion to the supervisor that he had only one telephone number since moving  
to British Columbia and that telephone number ended in 0332 is not capable of being believed  
in light of the documentary record.  
[447] The fact that the worker would make such an assertion raises serious concerns as to the  
reliability of his evidence. That there are serious concerns as to the reliability of his evidence is  
further illustrated by the fact that at one point during the meeting with the supervisor, the worker  
claimed he did not talk to anyone and had never spoken with the named entitlement officer.  
Such assertions by the worker are inexplicable in light of the fact that, as noted at the outset of  
my decision, numerous documents record that in 2005 Board staff, in addition to the entitlement  
officer, spoke with the worker.  
[448] I note that as part of his reconsideration materials, the worker does not assert that on each  
occasion in which a Board document records that Board staff spoke with the worker they were  
in fact speaking with someone impersonating the worker.  
[449] Still on the topic of the worker’s report of injury, I find that no significant concern is created by  
the fact that an incorrect birthdate is listed in that document. In particular, the fact that an  
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incorrect date of birth is listed does not suggest the document is fraudulent. The same  
erroneous date of birth is found in Dr. Repsch’s April 19, 2005 report submitted to the Board.  
The worker’s assertion, as recorded by the supervisor, that the information in Dr. Repsch’s  
report was from the employer does not have any air of reality about it. The worker offered no  
explanation as to why his employer would be providing his birthdate information to his  
chiropractor.  
[450] As well, one may contrast the worker’s assertion as to his employer being the source of  
information as to his incorrect birthdate in his report of injury with the fact the employer’s report  
of injury, dated March 31, 2005, lists the correct birthdate for the worker. One would think that if  
the employer fraudulently filled out the worker’s report of injury dated March 31, 2005 and made  
a mistake as to the worker’s birthdate in that document, the employer would have made the  
same mistake when it filled out the employer’s report dated the same day. But the employer’s  
report contains the correct birthdate.  
[451] Returning to the worker’s assertion that information in Dr. Repsch’s report came from the  
employer, I note that accepting the accuracy of such assertion would, in turn, require one to  
accept that despite its demonstrated knowledge of the worker’s correct birthdate (as of  
March 31, 2005 when it completed its report), the employer provided the worker’s chiropractor  
with an incorrect date. I am not persuaded that such a series of events is likely.  
[452] Even if I were to accept Mr. Babb’s report as accurate and find that the three documents were  
not authored by the worker and/or were not submitted by the worker to the Board, my  
conclusions regarding Mr. Babb’s report or the inferences one can make from it as to new  
evidence reconsideration grounds would not change.  
[453] I say that, even if the three documents were part of the six pages that the worker claims were  
included in disclosure issued after the WCAT decision but were not included in disclosures  
issued prior to the WCAT decision.  
[454] Turning first to the issue of the timecards and the letter received on April 21, 2005, I find that  
documents that would have been included in disclosures issued to the worker and the law firm  
prior to the WCAT decision contain sufficient detail that they would have made it clear to the  
worker and the law firm that the Board had received information indicating the worker had  
undertaken work activities subsequent to the March 26, 2005 incident and that the Board based  
its decision as to the worker’s initial entitlement to temporary disability wage loss benefits on  
that information.  
[455] The documents that contain such information (and would have been included in disclosure  
issued to the worker and the law firm) would include the memorandum of April 15, 2005, the  
two April 18, 2005 memoranda, and the April 25, 2005 decision document. As well, the April 25,  
2005 decision letter sent to the worker described the initial payment of benefits to the worker  
and would have been included in disclosures issued to the worker and the law firm. The worker  
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does not assert that those various documents were not included in disclosures issued prior to  
the WCAT decision.  
[456] As a prudent appellant who might wish to make assertions as to the severity of his injury being  
illustrated by his not undertaking work activities after the March 26, 2005 work incident, as part  
of reasonable diligence, it would have been incumbent upon the worker to have raised concerns  
with the accuracy of the information that had been received by the Board and to have provided  
his evidence on the matter.  
[457] I appreciate that if indeed the worker’s disclosures did not include his report to his employer and  
the documents received by the Board on April 21, 2005, he could not be expected to contest the  
accuracy of those specific documents; however, as a prudent appellant he could be expected to  
contest the accuracy of other documents which illustrated that the Board had information  
indicating the worker performed work activities subsequent to March 26, 2005.  
[458] The worker’s providing Mr. Babb’s report after the WCAT decision in an attempt to challenge  
evidence which indicates he undertook work activities after the March 26, 2005 incident does  
not satisfy the reasonable diligence requirement. Further, Mr. Babb’s report does not address  
the other documents, including, most notably, the April 18, 2005 memorandum which  
documented the worker’s advice to the entitlement officer that his paycheque to April 15, 2005  
included 60 hours—evidence which indicates he performed work activities after the March 26,  
2005 incident.  
[459] As for the worker’s report of injury, it would appear that the only information in that document  
which would be problematic for the worker would be that it indicated the following morning the  
worker’s back was sore and it hurt to move. Such a report might suggest that while on the day  
of the incident he experienced a jolt when he landed on his feet, the worker did not experience  
soreness and pain until the following morning.  
[460] I note that in paragraph #12 of her decision, the WCAT panel referred to the contents of that  
report. As well, in paragraph #69, as part of contrasting information on the claim file from 2005  
with the contents of Dr. Tarazi’s report, the WCAT panel stated that in 2005 when the worker  
filed his claim, he said that after he fell he finished cleaning up and his back was sore the next  
morning. That statement by the panel relies on information found in the worker’s report and in  
his application.  
[461] Thus, it would appear the panel attached some significance to the worker having experienced  
soreness the day after March 26, 2005.  
[462] In such circumstances, I appreciate one might wish to argue that evidence suggesting the  
worker’s report of injury was not completed by him is significant evidence for the purposes of  
new evidence reconsideration.  
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[463] However, such an argument would not resolve the matter of whether new evidence  
reconsideration grounds have been established.  
[464] In making that observation, I find that documents that the worker does not assert were absent  
from disclosures issued prior to the WCAT decision, would have alerted the worker to the  
contents of the worker’s report of injury. In that regard, the entitlement officer’s April 18, 2005  
claim review memorandum includes this passage:  
…His F6A indicates an injury date of a week earlier, Mar 26/05. On F6A he  
stated that he felt a jolt on landing on his feet and that the next morning his back  
was sore and it hurt to move. I note that he did not say he felt any pain at that  
time.  
[465] Even if the disclosures issued prior to the WCAT decision did not contain a copy of the worker’s  
report of injury, the fact that the Board had received a document from the worker (“His F6A”)  
and the fact that such a document seemed to suggest the worker did not feel any pain on the  
day of his injury would have been made clear to the worker and his law firm as part of receiving  
disclosures, which would have included the entitlement officer’s April 18, 2005 claim review  
memorandum.  
[466] As a prudent appellant who might wish to make assertions as to the severity of his injury being  
illustrated by his experiencing pain on the day of his March 26, 2005 incident and desiring to  
counter any suggestion to the contrary, as part of reasonable diligence it would have been  
incumbent upon the worker to have made submissions to WCAT regarding evidence found in  
“His F6A,” which the Board had obviously received. Seen in that light, Mr. Babb’s report which  
raises concerns as to the authenticity of the worker’s report of injury does not satisfy the  
reasonable diligence requirements.  
New medical evidence  
[467] The worker’s July 8, 2021 submission cites eight medical documents.12  
[468] I will consider the medical evidence in date order. In doing so, I note at the outset the assertion  
on page 4 of the July 8, 2021 submission that the ongoing medical investigation and medical  
reporting has resulted in new and significant evidence that produces a more coherent and  
consistent diagnosis of the worker’s injuries and ongoing symptoms. Page 4 also asserts that  
“more recent reporting appropriately reconciles the mechanism of injury, the chronology, and  
the worker’s presentation throughout the medical reporting.”  
12 While page 1 of the July 8, 2020 submission refers to "New medical evidence in Index 3 consisting of  
the nine (9) items of new evidence,” the pieces of evidence listed as (a) to (I) include a reference to  
Mr. Babb's March 7, 2016 report. That report is not medical evidence.  
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[469] Page 9 explores this issue further when it asserts that the new medical reporting gives the  
March 26, 2005 mechanism of injury “its proper place as cause and documents the  
consequences as they have evolved outside of any other possible cause, outside of  
degeneration, and outside the narrow and speculative diagnosis of Dr. Tarazi.” Page 10  
continues this line of argument in that it asserts the new medical reporting “makes sense of the  
medical history, objective scans, examination, and in total represents a well articulated analysis  
of what the forces from a ten foot fall can do to the human body and how the damage from such  
a fall will manifest itself over time.”  
The December 30, 2015 report of Dr. O’Brien, an orthopedic surgeon  
[470] In her report addressed to Dr. R Brown, Dr. O’Brien noted the worker had been referred to her  
due to left hip region and low back pain. The list of diagnoses documented included chronic low  
back pain, lumbar spondyloarthropathy, and pain and disability that the worker localized to the  
coccyx.  
[471] Dr. O’Brien indicated the worker was on disability benefits due to chronic pain related to his  
back. He had been referred to discuss a possible coccygectomy. On page 1 of her report she  
noted, “His problem started 10 years ago in a fall at work where he was a painter and he fell  
about 10 feet from a stepladder landing directly on his buttock region.”  
[472] Also on page 1, Dr. O’Brien documented that the worker reported “he has had quite a bit of  
trouble having his problems dealt with since that time, but tells me that at that point did not  
receive any treatment other than some physiotherapy, which was not particularly beneficial for  
him.” She noted the worker’s reports of various symptoms.  
[473] Dr. Brien noted that x-rays performed in February 2015 showed disc space narrowing most  
significant at the L3-L4 level, but as well at the L2-L3 level. The coccyx appeared relatively  
normal on that exam, with perhaps just a small bone spur distally13. There had been progression  
in the disc degeneration when compared to the images in 2005. The worker also underwent a  
SPECT/CT scan in February 2015, which unfortunately was incomplete with inadequate  
visualization down to the level of the coccyx. Her discussion with a radiologist resulted in an  
agreement that the study should be repeated with inclusion of the distal coccyx.  
[474] In reviewing the available imaging, on page 2 Dr. O’Brien commented “I am not appreciating  
any significant sacral or pelvic abnormalities and back in 2012, there had been no uptake  
around the coccyx.”  
[475] As part of documenting an impression and a plan, Dr. O’Brien stated that the worker had  
chronic pain related to multiple areas throughout his back. At that point, the only pathology she  
13 While the July 8, 2021 submission states that the x-ray is "not in our possession," I note that in  
February 2015 the Board received a copy of a report regarding the x-ray.  
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had identified based on the available imaging was an L3-L4 arthropathy which she stated  
certainly could account for some of the worker’s referred buttock and back pain.  
[476] Page 5 of the worker’s July 8, 2021 submission summarizes aspects of Dr. O’Brien’s report and  
quotes passages from it. The submission emphasizes Dr. O’Brien’s reference to the presence of  
a small bone spur and her statement that the arthropathy could account for some of the  
worker’s referred pain. Yet, the submission does not contain any argument as to how  
Dr. O’Brien’s report might satisfy the new evidence reconsideration grounds, and it does not  
explain how the emphasized quoted passages from Dr. O’Brien’s report relate to the new  
evidence reconsideration grounds.  
[477] Dr. O’Brien’s report says very little with regard to matters of causation. She does not link the  
small bone spur, chronic pain, or spinal arthropathy to the March 26, 2005 incident. The fact she  
documents conditions some ten years after the incident does not amount to her offering an  
opinion as to causation. That the worker had a form of arthropathy in 2015 would not be notable  
given that spondyloarthropathy had been mentioned in imaging documents considered by the  
WCAT panel.  
[478] That which Dr. O’Brien’s report does say on the matter of causation would appear to be her  
reiterating of the worker’s advice to her that his injury was the source of his problems rather  
than her offering an opinion to that effect. I am not persuaded that a physician’s reiteration of a  
worker’s opinion as to the cause of his problems amounts to the physician providing evidence  
which is substantial.  
[479] Even if one could argue that Dr. O’Brien’s report documents an opinion that the worker’s  
March 26, 2005 incident was the source of his problems, such an opinion would not amount to  
substantial evidence. I say that because there is no persuasive indication that her opinion was  
given after a thorough review of the relevant documentation. With respect, a partially-informed  
opinion does not support a decision contrary to that reached by the panel. It does not have  
much weight.  
[480] In that regard, I note that on page 8 of the July 8, 2021 submission the worker asserts with  
regard to the opinions of Drs. O’Brien, Svorkdal, and Fern that “All three doctors adopt the  
26 March 2005 workplace fall as the only likely and sufficiently forceful cause of the symptoms  
seen on examination and the symptoms are diagnosed as coccyx injury, coccydinia and central  
pain sensitization.”  
[481] While I will address that argument in greater depth in connection with Dr. Fern’s three reports  
from 2020, I note at this juncture I am not at all persuaded that Dr. O’Brien’s report or  
Dr. Svorkdal’s report discussed below “adopt” the March 26, 2005 workplace fall as the only  
likely and sufficiently forceful cause of the symptoms. The opinions of Drs. O’Brien and Svorkdal  
do not document any considered analysis of whether any other factor such as later incidents  
experienced by the worker were the cause of the conditions seen at examination. This is  
assuming in the first place that their reports actually contain medical opinions as to the  
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March 26, 2005 incident being of causative significance as opposed to merely documenting the  
worker’s assertions to that effect.  
[482] Another reason for concluding that Dr. O’Brien’s opinion is not substantial evidence is the fact  
that it appears to rely on a mechanism of injury contrary to that accepted by WCAT panel.  
Dr. O’Brien was under the impression the worker landed directly on his buttocks. Her  
understanding did not appear to involve the worker initially landing on his feet.  
[483] In that regard, I note the analysis in WCAT A1700070 in which the panel observed, “Several  
WCAT decisions have considered the situation of a medical opinion being provided in support of  
an application for reconsideration of a WCAT decision, where the new medical opinion was  
based on a different understanding of the background facts than had been accepted in the  
WCAT decision.” The panel added, “Those decisions similarly involved consideration as to  
whether such opinions constituted new evidence which was substantial to the prior decision.”  
The panel cited several earlier decisions on the matter (WCAT-2014-00267,  
WCAT-2008-00567, and WCAT-2007-01893) and found that the medical opinion in that case  
which was based on factual findings or assumptions which were not accepted did not satisfy the  
new evidence reconsideration grounds. While I am not bound to follow those decisions, I accept  
the analysis in them. (I note I was the panel who issued WCAT-2008-00567.)  
[484] As can be seen below, the problem associated with a medical opinion relying on a different  
understanding of the background facts affects several of the documents submitted as part of the  
worker’s new evidence reconsideration application.  
The January 15, 2016 bone scan  
[485] The radiologist documented the reason for the bone scan: “chronic pain after fall from 10 ft [feet]  
onto buttocks c/o [complaining of] pain over distal coccyx, sense of mobility, inability to sit  
square on buttocks also, pain lt [left] buttock with radiation down thigh and upper thoracic,  
cervical spine.” The radiologist compared the bone scan to a February 24, 2015 bone scan. He  
remarked that there was mildly increased disc centred bone turnover at L2-3 and L3-4. Those  
levels were confirmed with SPECT-CT imaging. Uptake in the lumbar spine, sacrum, and  
coccyx was otherwise within normal limits.  
[486] I find that the bone scan report is not substantial evidence. The report documents a temporal  
sequence: the worker experienced chronic pain after a fall. The report does not state that the  
worker experienced chronic pain because of the fall. Further, the report does not document a  
considered opinion of a physician as to whether there is a causal link between the worker’s  
symptoms/bone scan findings in 2016 and the 2005 incident. There is no suggestion the  
radiologist conducted a thorough assessment of all of the relevant documentation. Further, even  
if one were to find that the report contains an opinion from the radiologist, it is notable that the  
report documents a mechanism of injury rejected by the Board and WCAT.  
The March 3, 2016 report from Dr. Svorkdal, an anaesthesiologist  
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[487] Dr. Svorkdal stated on page 1 that the worker had “had persistent lumbosacral and coccygeal  
pain since a traumatic work injury in 2005.” He noted that the worker “fell from a significant  
height onto his legs and coccyx suffering blunt trauma which has resulted in pain in his  
coccygeal area, lumbosacral spine and left shoulder.”  
[488] Dr. Svorkdal stated that a bone scan (date not specified, but presumably the January 15, 2016  
bone scan) demonstrated some fairly significant inflammatory change at the L2-L3 and  
L3-L4 disc areas. There appeared to be some element of degenerative disc disease and spinal  
stenosis along the spinal canal as well in the L5-S1 area. The region around the coccyx was  
subtly different with an anterior angulation and a rather acute posterior angulation at the very tip.  
[489] Dr. Svorkdal’s assessment and recommendations were that the worker had inflammatory  
degenerative disc disease and coccydynia that might benefit from further treatment. Among  
other matters, he commented that given the long-standing nature of the worker’s pain issues  
and that his inflammatory changes in the bone scan were much more evident that they were  
three to four years earlier when his last bone scan was taken, there might be considerable  
benefit from injections.  
[490] Page 5 of the worker’s July 8, 2021 submission summarizes aspects of Dr. Svorkdal’s report  
and quotes passages from it. The submission emphasizes Dr. Svorkdal’s reference to the bone  
scan revealing subtle differences around the coccyx and some element of degenerative disc  
disease and spinal stenosis. As well, the submission emphasizes Dr. Svorkdal’s identifying  
coccydynia and prolotherapy injections.  
[491] Yet, the submission does not contain any argument as to how Dr. Svorkdal’s report might satisfy  
the new evidence reconsideration grounds. It does not explain how the emphasized quoted  
passages from Dr. Svorkdal’s report relate to the new evidence reconsideration grounds.  
[492] I find that Dr. Svorkdal’s report is not substantial evidence. As in the case of the reports of  
Dr. O’Brien and the radiologist, Dr. Svorkdal’s report does not amount to an express opinion by  
a physician on the matter of whether there is a causal link between the conditions noted at  
examination or on imaging and the March 26, 2005 incident, but rather seems to document the  
worker’s assertions as to the existence of a causal link between the incident and his pain. The  
report records a temporal sequence in that it records that many years after the March 26, 2005  
incident conditions were documented, but such a recording does not mean the conditions were  
due to the incident. I consider that the references in the report to degenerative disc disease and  
coccydynia are not of great note. Medical documents that pre-date the WCAT decision recoded  
such diagnoses.  
[493] Even if one were to find that Dr. Svorkdal’s report amounts to an opinion as to causation, there  
is no suggestion Dr. Svorkdal conducted a thorough assessment of all of the relevant  
documentation. As well, any such opinion appears to rely on a mechanism of injury rejected by  
the Board and WCAT. Thus, Dr. Svorkdal’s report is not substantial evidence.  
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The April 20, 2017 report of Dr. Bourdon, the worker’s family physician  
[494] In an April 20, 2017 letter, Dr. Bourdon stated the worker’s medical history included chronic  
pain/coccydynia. She noted that Dr. Tarazi’s opinion was that the worker was permanently  
totally disabled as a result of the 2005 work injury.  
[495] While pages one and two of the July 8, 2021 submission cite this report as new medical  
evidence, the submission contains no argument as to how this report would satisfy the new  
evidence reconsideration grounds.  
[496] I find that Dr. Bourdon’s report is not substantial evidence. The fact that she noted Dr. Tarazi’s  
opinion — an opinion that was part of the evidence addressed by the WCAT panel — falls far  
short of providing new evidence that would support a decision contrary to that reached by the  
WCAT panel.  
[497] While not cited by the worker, I have also considered Dr. Bourdon’s June 16, 2016 report  
addressed to “To Whom It May Concern” in which she stated the worker had been her patient  
since August 2016. (Given that her letter is from June 2016, it is likely that she meant August  
2015.)  
[498] Dr. Bourdon stated that the worker “tells me he cannot work due to his physical disabilities,  
which he states are due to a work place injury in 2005.” She stated that the worker’s information  
was “corroborated by his previous records which I have reviewed.”  
[499] Dr. Bourdon stated, “He has chronic coccydynia following an injury in 2005.” She stated that  
Dr. Tarazi’s April 2014 valuation included “a detailed review of all investigations up until that  
time.” She stated it was Dr. Tarazi’s opinion that the worker “is permanently totally disabled as a  
result of the work injury in 2005.” She added, “He also has chronic neck, left hip and low back  
pain following the injury in 2005.”  
[500] I find that Dr. Bourdon’s earlier letter is not substantial evidence. In part, it suffers from the same  
difficulties associated with the opinions cited above in that her letter documents the worker’s  
assertion as to causation. I do appreciate she states that the worker’s information (which I  
presume refers to his assertion that his disabilities are due to his 2005 workplace injury) was  
corroborated by his previous records. Thus, it appears she offers an opinion on causation. As  
well, I appreciate that her comments regarding coccydynia and chronic neck, left hip, and low  
back pain appeared to involve her giving an opinion on causation.  
[501] However, Dr. Bourdon does not indicate which records she reviewed or what mechanism of  
injury provided the basis for her assertion as to causation. There is a question as to the basis  
upon which she offered her opinion on causation. While she was aware of Dr. Tarazi’s opinion,  
it is not at all clear whether she was aware of the various documents cited by the WCAT panel  
as part of discounting the weight to be attached to Dr. Tarazi’s opinion. As a result, I find that  
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her June 16, 2016 letter is not substantial evidence. Further, her opinion is not new evidence in  
that it does not rely on a different factual matrix.  
The January 10, 2019 CT scan  
[502] The report regarding his CT scan indicates the clinical indication for the conducting of the  
CT scan was “Coccydynia.”  
[503] The radiologist documented the following interpretation of the CT scan as it pertained to the  
worker’s coccyx and lumbosacral spine:  
The coccyx appears intact without evidence of the fracture. No suspicious  
osseous lesion is apparent within the region of the coccyx. There is a bony spur  
arising from the tip of the coccyx and projecting posteriorly which measures  
0.6 cm. The sacrum appears unremarkable. The pelvis bones appear  
unremarkable bilaterally. No degenerative changes are appreciated of the hip  
joints. There are degenerative changes of the L4-5 disc space with small  
Schmorl’s nodes and mild posterior disc spacing narrowing. The L5-S1 disc  
space appears relatively preserved.  
Soft tissues in the region of the coccyx appear unremarkable without evidence of  
inflammatory change or soft tissue collection or mass.  
[504] While pages one and two of the July 8, 2021 submission cite this report as new medical  
evidence, the submission contains no argument as to how this report would satisfy the new  
evidence reconsideration grounds.  
[505] The report regarding the CT scan contains no assertion as to the cause of the bone spur, the  
degenerative changes of the L4-5 disc space, the Schmorl’s nodes, or the mild posterior disc  
space narrowing, let alone an assertion that the March 26, 2005 incident was the cause.  
Further, the existence of such findings documented some 14 years after the 2005 work incident  
does not mean they must be due to that incident. I find the report is not substantial evidence.  
The July 9, 2020, August 19, 2020 and October 25, 2020 reports of Dr. Fern, an  
orthopaedic surgeon  
[506] The worker’s July 8, 2021 submission quotes extensively from the Dr. Fern’s three reports. The  
reports total 21 pages. I have read the reports and paid particular attention to those passages  
quoted and emphasized in the July 8, 2021 submission. My summary below highlight aspects of  
the reports.  
[507] In his July 9, 2020 report, Dr. Fern documented the history provided to him which, among other  
matters, indicates that when the worker’s employer attended the scene the worker was just left  
lying on the ground. Dr. Fern documents the results of his examination and notes the outcome  
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of a January 14, 2020 MRI scan which was reported as indicating the sacrum and coccyx  
appeared normal. The MRI report also referred to degenerative disc disease, moderate facet  
osteoarthritis, osteophytes, canal stenosis, and recess stenosis, and a protrusion, among other  
matters.  
[508] Dr. Fern noted on the second page that the worker was “having ongoing problems with chronic  
mechanical back pains … stemming from a previous work related injury.” Dr. Fern indicated,  
“From his fall, he likely sustained sprain and strain and myofascial type injuries.” It was unknown  
if there was an underlying fracture that might have occurred, as there did not appear to have  
been any imaging studies that were done contemporaneous with the accident itself. The recent  
MRI did not report on any previous vertebral fractures.  
[509] Dr. Fern commented on the third page that the worker’s mechanical back pains were of  
“discogenic and facet joint etiologies.” The worker had “a chronic pain disorder as well  
stemming from his injury.” Dr. Fern considered that the worker’s widespread superficial  
tenderness of his back, pain with skin rolling and skin pinching, and signs of punctate  
hyperalgesia “would all be consistent with central nervous system sensitization of his pain that  
has now developed.”  
[510] In his discussion of treatment options, Dr. Fern noted the worker had some signs of neurogenic  
claudication secondary to his multilevel spinal stenosis. He considered that the spinal stenosis  
would have developed over the years and the neurogenic claudication would be due to the  
stenosis. On the third page he stated, “The chronic nature of his pain is more likely related to  
the original injury and given his clinical history.” Also as part of discussion of treatment options,  
Dr. Fern indicated a bone scan would document if there were any issues related to the sacrum  
or coccyx. The MRI scan indicated those areas were normal. Dr. Fern observed that there was  
some tenderness still in the region and signs of coccydynia.  
[511] Dr. Fern’s August 9, 2020 report was produced in response to a July 23, 2020 letter from the  
worker’s lawyer, a copy of which has been provided as part of the consideration materials. That  
letter indicates Dr. Fern was provided with numerous documents from the worker’s claim file.  
Page six of the July 8, 2021 submission asserts that for the August 19, 2020 report, Dr. Fern  
was provided with all other indexed evidence submitted with the reconsideration application and  
a full Board file disclosure current to September 18, 2018.  
[512] Pages 5 up to and including page 9 of Dr. Fern’s August 19, 2020 report document his summary  
of various documents. Of note, on page 7 Dr. Fern stated that the records “document an  
extension [extensive?] history of chronic back complaints following the injury.” Also on that page  
Dr. Fern commented, “There was noted to be extensive records documenting long standing  
treatments that were received consistent with a chronic back condition.”  
[513] At page 10 of his report Dr. Fern, stated that his review of the worker’s records confirmed his  
original clinical opinion as to the worker having chronic long-standing problems with regard to  
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his back and coccygeal regions. Notably, Dr. Fern stated, “In my opinion, he would have made  
maximal medical recovery from his accident in 2005.”  
[514] Of interest, Dr. Fern commented that based on the records it did not appear that there were  
significant issues with the worker’s back prior to the March 26, 2005 incident. (Such a comment  
might suggest Dr. Fern was unaware of the existence of Dr. Leal’s February 7, 2001 letter in  
which he recorded his understanding the worker had some chronic back pain secondary to  
trauma.)  
[515] Also on page 10 Dr. Fern indicated “…it would be much more likely than not that his ongoing  
problems are directly and materially related to the original injury of March 26, 2005.” It was his  
opinion that the fall described by the worker “had occurred and he sustained an injury to his  
lower back and coccygeal region.” The injury to the back “would have been consistent with a  
sprain and strain and myofascial type injury.”  
[516] Further on page 10, Dr. Fern made numerous comments on the topic of fracture. Dr. Fern  
commented that the forwarded records did “not appear to be consistent with a vertebral fracture  
that had occurred.” Yet, he stated there was some question that the worker may have had a  
fracture of his coccyx that was not initially picked up and there might have been some bone  
fragments that occurred that subsequently went through the skin and were removed, as  
described by the worker and supported in the opinion of Dr. Tarazi.  
[517] Dr. Fern stated, “The imaging findings do document lytic changes in the coccyx, which would be  
consistent with degeneration and potentially post traumatic.” He considered that degenerative  
changes in the coccyx were generally uncommon. (I note it is unclear whether Dr. Fern  
reviewed actual images and considered they showed lytic changes or whether he was referring  
to Dr. Church’s reference to such changes being revealed by the April 5, 2012 x-ray of the  
sacrum and coccyx, despite the radiologist stating in a report about that x-ray that no lytic or  
sclerotic lesions were identified. It seems unlikely that Dr. Fern was making such an assertion  
about the later February 5, 2015 coccyx and lumbar spine x-rays, given that the radiologist  
stated in the associated report that no compression deformity or lytic bony abnormality was  
identified.)  
[518] Further on page 10, on the topic of fracture, Dr. Fern stated that based on his review of the  
records and in the opinion of Dr. Tarazi, “it is reasonable that a fracture may have occurred as a  
result of the fall of a significant enough height that may have not been initially picked up but  
would be consistent with significant pain occurring at that time.”  
[519] Dr. Fern observed that a fracture of that nature would have gone on to heal. He considered, “In  
the absence of a fracture with visible bone fragments, it would be highly unlikely in my opinion  
for fragments to then develop and migrate out and puncture the skin.” He commented that  
whether there were fractures that subsequently migrated out was “not as significant as the  
significant central sensitization that has occurred as that would be the reason for his ongoing  
problems, not just the fracture itself or any fragments that may have chipped off and migrated.”  
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He commented that if a fracture occurred with fragments presenting as a result of the injury,  
they would not typically cause pain in and of themselves. Dr. Fern asserted, “I would consider  
his ongoing pain in this region is related to a neuropathic reason and specifically central  
sensitization of his pain.”  
[520] On page 11, Dr. Fern outlined what he considered to be the worker’s significant impairments  
with regard to his mobility. He commented the worker was substantially unable to return to any  
form of gainful employment for which he would be reasonably suited by education, training or  
experience. Dr. Fern asserted, “I would consider it much more likely than not that his problems  
are attributable to the accident of March 26, 2005.”  
[521] On page 12, Dr. Fern documented his opinion that the worker had a “well established chronic  
pain problem following the accident of March 26, 2005 and this would have made his back more  
vulnerable to injury.” In that regard, he considered the worker would have a “significant  
predisposition to developing either an exacerbation or aggravation of his condition from further  
injuries.” He added, “I would consider any application that was made for injuries would have  
likely represented an exacerbation or aggravation of a pre-existing condition but again with the  
original injury being the accident in 2005, based on the records.”  
[522] Also on page 12, Dr. Fern documented a discussion arising out of his understanding that “the  
main issue appears to be the nature of the injury that was described.” Dr. Fern’s opinion as to a  
causal link between the worker’s accident and his chronic lower back condition was not based  
on the worker having fallen onto his buttocks/tailbone or the worker having extracted bone  
fragments from a fracture :  
It would be my opinion that [the worker] developed a significant chronic pain  
problem and central sensitization of his pain that resulted in his problems  
becoming so significant to affect all aspects of his day to day functioning. Based  
on review of the records and on the balance of probabilities, it would be my  
opinion that [the worker] was involved in an accident that occurred in March  
2005, in which he did fall from a height sustaining injuries. Whether he then fell  
onto his buttocks/tailbone is not relevant to the development of his chronic lower  
back condition. This would be more important for the diagnosis of coccydynia or  
coccygeal fracture. Nevertheless, this was the precipitating event resulting in  
chronic mechanical problems developing. However, the significant issues that  
are present are related to the development of central sensitization of his pain and  
a significant chronic pain disorder. This would be the most significant  
development that had occurred, irregardless of whether there were things such  
as bone fragments that may have occurred from a fracture that subsequently  
migrated out from his coccygeal injury, which seems unlikely in my opinion.  
[523] Dr. Fern addressed what he considered to be discrepancies. He noted the worker indicated to  
him he fell from a ladder, landed on his feet, and then onto his buttocks and coccygeal region.  
Dr. Fern observed, “This does not appear to be what was documented in the records at the time  
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of the accident itself.” He observed that based on the worker’s description, there was a fall onto  
his gluteal region.  
[524] As for whether there were bone fragments that had migrated out, Dr. Fern observed at the  
bottom of page 12 and the top of page 13, “Again, I would consider that this is extremely  
uncommon and if there were fragments they would have likely been seen on the original x-rays.”  
He observed, “On the balance of probabilities it is probably more likely that the material that was  
removed was sebaceous cyst type material, rather than bony fragments.”  
[525] On page 13, Dr. Fern reiterated that his opinion as to a causal link between the March 26, 2005  
accident and the worker’s problems at the time of his assessment was not contingent on  
whether there were bone fragments or whether the worker fell onto his tailbone but apparently  
was based on the understanding that the worker had persistent back problems:  
However, it would still remain my opinion that [the worker’s] problems are related  
to the development of a significant chronic pain problem and central sensitization  
of his pain, irregardless of whether or not there were bone fragments that  
migrated out from his coccygeal region or on the mechanism of the accident  
itself. A fall from a height with an injury to his back appears to be the precipitating  
event. Whether or not he fell onto his tailbone or not, it would be my opinion,  
based on the records that the fall was the precipitating event that resulted in his  
ongoing back problems. I note that he developed worsening problems for which  
he received more intensive chiropractic treatments and the documentation is  
of persistent back problems, aggravated and exacerbated by subsequent  
re-injuries.  
[526] Dr. Fern concluded his report by stating on page 13 that his opinion as an orthopaedic spinal  
surgeon and as a chronic pain specialist14 was that the worker’s “problems are related to the  
development of a significant chronic pain disorder and central sensitization of his pain…more  
likely than not, related to his original injury of March 26, 2005.”  
[527] The reconsideration materials submitted to WCAT include what appears to be an incomplete  
exchange of emails between the worker’s lawyer and individuals who appear to have been  
assisting Dr. Fern. I say that the exchange appears to be incomplete because the existence of  
an email of August 26, 2020 to the lawyer is denoted by the presence of to and from information  
on the bottom of a page submitted to WCAT, but the text of the email has not been provided. As  
well, in his September 18, 2020 email the lawyer thanks an individual for a reply to his  
September 4, 2020 email; however, that reply is not included. Given that I assume that the  
lawyer’s emails of September 4, 2020, September 8, 2020, October 6, 2020, and October 15,  
14 Dr. Fern refers to himself as a “chronic pain specialist.” Recourse to the directory for the Royal College  
of Physicians and Surgeons of Canada establishes that his only designation by that body is that of a  
specialist in orthopaedic surgery. His August 19, 2010 report documents that he is certified by the  
College of Physicians and Surgeons of Ontario in interventional pain management.  
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2020 document the full extent of matters posed for Dr. Fern’s consideration, I did not consider it  
necessary to seek from the worker’s lawyer the text of the email of August 26, 2020 or the text  
of the response to his email of September 4, 2020.  
[528] The above exchange appears to have resulted in Dr. Fern issuing his five-page October 25,  
2020 addendum.  
[529] On page 2 of his addendum, Dr. Fern stated there were “several discordant opinions regarding  
this gentleman’s work related injury or March 26, 2005.” Injury details were many and varied,  
dependent on the assessor and the given history. He considered it would be best to focus on  
the undisputed details rather than on what he referred to as “the ‘grey’ area details.”  
[530] Dr. Fern commented that all assessors unequivocally stated that the worker fell off a faulty  
ladder and landed on his feet. The distance the worker fell onto his feet was “significant.” He  
noted that records of the fall varied from a 10-foot height to a 15-foot height, and commented  
that research shows that a distance of 10 to 15 feet represents one floor height.  
[531] Dr. Fern asserted that the force of landing on the ground intensifies the shock or impact load on  
the spinal column, which can lead to increased bone-on-bone compression forces. Research  
has shown that bone-on-bone impact is a direct cause of spinal disc degeneration and other soft  
tissue back injuries.  
[532] Dr. Fern observed that all falls cause mechanical and functional change to the body leading to  
inefficient movement and compensation. He outlined common chronic side effects from  
traumatic falls.  
[533] Dr. Fern then referred to the WCAT decision. He noted the comment of the vice chair that there  
was a fundamental problem which seriously undermined Dr. Tarazi’s opinion and that problem  
was the history upon which his opinion was based. Dr. Fern indicated he was not clear as to the  
vice chair’s background or if she had any medical education at all. He noted that the vice chair  
stated that the worker landed only on his feet. He commented on page 3 that the type of impact  
injury the worker sustained, regardless of whether he subsequently landed on his lower back,  
“was significant enough to cause a major injury to his lumbar spine, sacrum and coccyx.”  
[534] Dr. Fern took exception to the vice chair’s determination “that Dr. Tarazi’s opinion should not  
carry much weight as the history of the incident was inaccurate.” Dr. Fern referred to this as a  
“slight” against Dr. Tarazi, who was “well-respected board-certified Orthopaedic Surgeon.”  
Dr. Fern asserted, “Dr. Tarazi should be given more respect and authority based on his  
education, experience and medical specialty.”  
[535] I pause to observe that it may be that Dr. Fern did not fully appreciate certain aspects of the  
adjudication of benefit entitlement under the Act. Just as in the case of judges in the court  
system who assess the persuasiveness of medical evidence as part of deciding entitlement in  
connection with tort claims, there is no requirement that decision-makers in the workers’  
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compensation system be medically trained. Among other aspects of assessing medical  
evidence, such decision-makers assess whether experts have based their opinions on  
non-medical facts established by the evidence. Such assessment does not amount to any  
slighting of experts whose opinions have been tendered. With respect, Dr. Fern’s assertions on  
the matter appear to involve his giving an opinion outside his area of expertise.  
[536] Dr. Fern appears to have offered further comments outside his area of expertise when on  
page 3 he noted Dr. Tarazi assessed the worker nine years after the reported work incident and  
contended, “There certainly should be some latitude given here as perhaps [the worker] could  
not recall effectively all of the minutia pertaining to this accident.” I consider that an assessment  
as to concerns regarding the reliability of the worker’s evidence as part of determining whether  
an expert orthopaedic opinion (that of Dr. Tarazi) is entitled to weight falls in the bailiwick of the  
decision-maker (the WCAT panel), rather than in the bailiwick of another orthopaedic surgeon  
(Dr. Fern).  
[537] In appearing to address other matters outside his medical agreement, on page 3 Dr. Fern  
addressed the employer’s reporting and potential forged documents:  
Further, there is also documentation provided that involves disputes regarding  
[the worker’s] employers’ authenticity of reporting of this incident and the  
subsequent potential forged documents. This clearly raises doubts as to the  
responsibilities of his workplace to accurately document and report any  
work-related incidents.  
[538] On page 4 of his addendum, Dr. Fern reiterated his earlier comments as to the results of his  
original clinical assessment of the worker with regards to diagnoses. He also reiterated his  
opinion that the worker “would have made maximal medical recovery from his accident in 2005.”  
He reiterated his opinion that the worker’s significant chronic pain disorder and central  
sensitization of his pain “more likely than not, related to his original injury of March 26, 2005.”  
[539] In summing up his analysis at the end of page 4, Dr. Fern asserted, “There is a direct causation  
between March 26, 2005 and the dramatic deterioration of [the worker’s] spinal and overall  
health.” He concluded his analysis by stating as follows:  
There is empirical evidence supporting his diagnosis and his reports of pain.  
The reopening issue before WCAT in 2014 should be viewed as not only  
causation but the change in [the worker’s] symptoms as of 2012 are at issue  
and records shows that [the worker] managed to return to work for several years  
after the date of injury in 2005. This is very relevant to understanding the  
evolution of this injury from 2005 to [the worker’s] assessment by myself and  
other medical specialists who have reviewed this case.  
[540] Do Dr. Fern’s documents establish new evidence reconsideration grounds?  
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[541] The issue before WCAT was whether the worker’s symptoms in 2012 were a recurrence of his  
2005 low back strain or whether they were evidence of any injury due to the 2005 accident other  
than a low back strain. Significantly, the panel stated that the worker’s low back symptoms in  
2012, whatever their diagnosis, were not related to the 2005 work incident.  
[542] In considering whether new evidence reconsideration grounds exist, I note that Dr. Fern’s  
opinion is not contingent upon whether the worker fell after landing on his feet. Thus, his opinion  
is not afflicted by the shortcoming that affected many of the documents noted above.  
[543] Yet, the notion that the worker landed on his feet and did not fall was not a new one at the time  
the WCAT panel issued its decision. It would have been clear to the worker as a result of the  
September 2, 2010 and March 20, 2013 decisions that the Board considered that the  
mechanism of injury did not involve the worker falling and striking his tailbone. As a prudent  
appellant, it would have been appropriate for the worker, as part of the appeal to WCAT, to have  
provided a medical opinion that was based on his landing on his feet and not falling. However,  
the worker did not do so. The submission many years later of Dr. Fern’s reports which are  
based on a mechanism of injury accepted by the Board and by the WCAT panel does not satisfy  
the reasonable diligence criterion.  
[544] Further, Dr. Fern’s reports do not satisfy the new evidence reconsideration grounds because  
they are based on the worker having had continued persistent pain in the years following 2005.  
Owing to that, his reports are not substantial evidence.  
[545] Dr. Fern’s references to the worker achieving maximum medical recovery in 2005 and as to the  
worker having had a well-established chronic pain problem following the March 6, 2005 incident  
indicate he considers that any condition sustained by the worker as a result of the March 26,  
2005 accident did not resolve but rather resolved to a point, at which time the worker was left  
with an ongoing condition. A conclusion that this is what Dr. Fern’s reports are based on is  
reinforced by the fact that the worker asserts at page 14 of the July 8, 2021 submission that,  
“Dr. Fern, in particular, explains how symptoms would persist and progress from the date of  
injury [emphasis added].” As noted much earlier in my decision, at page 4 of the July 8, 2021  
submission the worker argues that “his symptoms began on 26 March 2005 due to the  
workplace fall, never resolved [emphasis added].”  
[546] Yet, the position that the worker experienced symptoms continuously since the March 26, 2005  
incident is contrary to the panel’s finding that the notion that the worker continued to have back  
and tailbone pain throughout the time after his injury in March 2005 until 2009 when the pain  
started to get worse was “simply not correct.”  
[547] Significantly, Dr. Fern’s reports do not contain new evidence on the issue of whether the worker  
had continuous symptoms in the years after the injury. To the extent that they may rely on the  
worker’s assertions to Dr. Fern to that effect, Dr. Fern’s recording of the worker’s evidence does  
not amount to the submission of new evidence that satisfies the new evidence reconsideration  
grounds. Any evidence the worker had as to his personal experience of pain and other  
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symptoms in the years after the injury that he communicated to Dr. Fern in 2020 would have  
been within the worker’s knowledge at the time of the appeal to WCAT. As a prudent appellant  
in the appeal to WCAT, he would have been expected to provide such evidence. That in the  
form of Dr. Fern’s reports the worker’s evidence on this point is provided to WCAT does not  
surmount the problem created by the reasonable diligence requirement in the statute.  
[548] As well, I find that Dr. Fern’s reports are not new evidence in light of the analysis in  
WCAT-2010-01348 and related decisions. I am not persuaded that his reports, as they touch on  
the issue of whether the worker’s symptoms in 2012 were related to his 2005 incident and  
injury, are based on a different factual matrix. While his reports cite medical documents and  
examination results that post-date the WCAT panel’s decision, I find that his reports as they  
concern the issue of causation examined by the WCAT panel do not rest on a different factual  
matrix.  
[549] As of the 2014 issuance of the WCAT panel’s decision, the claim file contained, among other  
matters, nine years of information regarding the worker’s post-March 2005 symptoms and the  
results of imaging. Dr. Fern’s reports do not expressly or impliedly assert that post-2014 imaging  
revealed findings that added in a material way to an assessment of whether the worker’s  
symptoms in 2012 were due to his 2005 incident and injury. There is no different factual matrix.  
For example, Dr. Fern does not assert that post-2014 imaging revealed changes that produced  
an entirely different theory explaining how changes seen in 2012 would have been due to the  
2005 incident and injury. To the extent that Dr. Fern’s reports may suggest that any changes  
seen on imaging that was on the claim file as of 2014 were related to the 2005 incident and  
injury, I am not persuaded that any opinion to that effect would be new evidence.  
[550] Dr. Fern’s reports document that when seen in 2020 the worker had mechanical back pain of  
discogenic and facet joint etiologies, a chronic pain disorder, and central nervous system  
sensitization, all of which he linked to the 2005 incident and injury. Dr. Fern does not expressly  
assert that the worker had those diagnoses in 2012, but his assertion that the worker made  
maximum medical recovery in 2005 implies that the worker had these diagnoses in 2012. Thus,  
Dr. Fern has made diagnoses that may be somewhat different than those made by Dr. Tarazi.  
Yet, I am not persuaded that the application of different diagnostic labels to the worker’s  
circumstances as of 2014 means there is a different factual matrix. I appreciate that a different  
factual matrix might be present if Dr. Fern pointed to a post-2014 change in knowledge in the  
relevant literature about back symptoms and conditions or he pointed to some post-2014  
development in diagnostic assessment. However, his reports do not point to such changes.  
[551] Thus, I find there are several independent bases upon which to conclude that Dr. Fern’s reports  
do not satisfy the new evidence reconsideration grounds.  
[552] After having reviewed the matter, and for the reasons set out above, I find that there was no  
breach of the rules of procedural fairness that would justify setting WCAT-2014-03255 aside.  
Further, new evidence reconsideration grounds have not been established.  
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[553] I agree with the observation in the July 8, 2021 submission that reconsideration is an  
exceptional remedy. An aspect of the exceptional nature is that as a result of the decision in  
Fraser Health, WCAT’s ability to consider reconsideration applications that are not based on  
new evidence is significantly constrained.  
[554] The worker asserts there was a breach of the rules of procedural fairness. His arguments in that  
regard are anchored in his criticisms of the law firm which represented him as part of his appeal  
to WCAT. There is significant concern as to whether incompetence of counsel would establish a  
breach of procedural fairness. I find there was no incompetence. I also considered whether  
WCAT acted unfairly in not holding an oral hearing, and I found it had not acted unfairly. I  
conclude there was no breach of procedural fairness.  
[555] I appreciate that the worker strongly disagrees with WCAT panel’s decision. However, such  
disagreement does not establish new evidence reconsideration grounds.  
[556] Owing to the reasonable diligence requirements, the worker was required to exercise the  
degree of care which a prudent and reasonable appellant would have exercised in ensuring  
that, as part of the appeal, WCAT had all relevant information necessary to the proper  
consideration of that appeal. Much of the evidence that the worker provided as part of his new  
evidence reconsideration application was evidence known to him at the time of the appeal and  
evidence he should have submitted as part of the appeal, especially in light of evidence that  
was on the worker’s claim file and of which he and the law firm representing him would have  
been aware at the time of the appeal, both having had disclosure of the worker’s claim file. The  
worker’s submitting of such evidence as part of the new evidence reconsideration application  
does not satisfy the reasonable diligence requirement.  
[557] Another significant hurdle that defeated the worker’s new evidence reconsideration application  
is the requirement that the evidence be substantial in that it have weight and support a  
conclusion opposite to the conclusion reached by the WCAT panel. Many of the documents  
relied upon by the worker do not support a conclusion opposite to that reached by the WCAT  
panel for the fact that the documents do not contain an express medical opinion supporting the  
worker’s position. As well, documents are based on evidence that was not accepted by the  
WCAT panel, such as the mechanism of injury involving the worker striking his tailbone and/or  
the worker experiencing continuous symptoms following his injury.  
[558] I appreciate that as part of his new evidence reconsideration application, the worker argues that  
the mechanism of injury involved him striking his tailbone and argues that he experienced  
continuous symptoms following his injury. However, his evidence on those points does not  
satisfy the reasonable diligence requirement. Medical opinions as to causation that rely on a  
mechanism of injury involving the worker striking his tailbone and the worker experiencing  
continuous symptoms following his injury, in turn, are not substantial evidence.  
[559] Dr. Fern’s reports appear to be the evidence that the worker relies on the most. Yet, the reports  
do not satisfy the reasonable diligence requirement, given that as part of the appeal to WCAT a  
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WCAT Decision Number:  
A2101852 (June 14, 2022)  
prudent appellant would have submitted an expert opinion based on the mechanism of injury  
established in the earliest documents on the claim file and which had been accepted by the  
Board. The worker’s submission of such an opinion as part of his new evidence reconsideration  
application does not satisfy the reasonable diligence requirement.  
[560] Further, Dr. Fern’s reports do not amount to substantial evidence, given that they rely on the  
worker experiencing continuous symptoms subsequent to his injury, a notion rejected by the  
WCAT panel. As well, as documented above, the reports do not constitute new evidence.  
Expenses  
[561] The worker seeks reimbursement in connection with expenses associated with obtaining  
Dr. Fern’s August 19, 2020 report ($5,085.00) and Dr. Fern’s October 25, 2020 report  
($845.50).  
[562] Whether the worker would be eligible for reimbursement would be determined by the terms of  
the following passages in section 7 of the Workers Compensation Act Appeal Regulation,  
B.C. Reg. 321/2002, as amended by B.C. Reg. 89/2021 (Regulation):  
(1) Subject to subsection (2), the appeal tribunal may order the Board to  
reimburse a party to an appeal under Part 7 of the Act for any of the  
following kinds of expenses incurred by that party:  
…
(b) the expenses associated with obtaining or producing evidence  
submitted to the appeal tribunal….  
[emphasis added]  
[563] I consider that the emphasized passage above raises the issue of whether a new evidence  
reconsideration application under section 310 of the Act is “an appeal under Part 7 of the Act.”  
[564] While section 310 is indeed found in Part 7 of the Act, a reconsideration is not an appeal. Had  
the Lieutenant Governor in Council wanted section 7 of the Regulation to enable WCAT to order  
reimbursement in connection with a new evidence reconsideration, it would have been a simple  
matter for the Regulation to have been drafted to refer to “an appeal or a reconsideration” or to  
“proceedings.” However, section 7 of the Regulation does not refer to a reconsideration or more  
generally to proceedings. Or it would have been a simple matter for section 310 to have been  
worded to provide that Part 7 of the Act applies to proceedings under section 310 as if the  
proceedings were an appeal under Part 7. In that regard, section 311 of the Act dealing with  
WCAT’s power to certify to court contains such a provision.  
[565] The matter of whether reimbursement of expenses is available as part of stage one of a new  
evidence reconsideration has been flagged by numerous WCAT decisions that would have  
been available in the decision database on WCAT’s website prior to July 2021.  
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WCAT Decision Number:  
A2101852 (June 14, 2022)  
[566] I note that in WCAT-2006-04504 (in which I found that new evidence reconsideration grounds  
had been established), I offered the following comments in connection with reimbursement of  
expenses at stage one of the new evidence reconsideration process:  
Section 7 of the Workers Compensation Act Appeal Regulation provides that  
WCAT may order reimbursement of expenses to a party to an appeal under  
Part 4 of the Act. I consider that that section suggests that the purpose of  
reimbursing expenses is to assist in WCAT’s adjudication/inquiry on the  
merits. This raises concerns with respect to the reimbursement of  
expenses in connection with applications under section 256 of the Act  
which seek to impugn an Appeal Division or WCAT decision. The issue of  
reimbursement might be more appropriately considered by a stage two  
reconsideration panel, as the proceedings before such a panel are more akin to  
an appeal than the proceedings before a stage one reconsideration panel. A  
stage two reconsideration panel is likely in a better position to assess whether  
the Board tariff rate, or a higher amount, should be paid. I decline to make an  
order with respect to expenses, and I leave the matter to be addressed by the  
stage two reconsideration panel.  
[emphasis added]  
[567] In WCAT-2006-04538 a panel made the following comments concerning reimbursement of  
expenses in connection with unsuccessful stage one new evidence reconsideration  
applications:  
One possible interpretation of section 7 of the Appeal Regulation is that  
reimbursement of expenses may only be granted to a party to an appeal. On this  
reading, no such reimbursement may be granted in the context of an application  
for reconsideration as this is not an appeal. I am inclined, however, to a broader  
interpretation of this provision. Subsections 7(1)(a) and (2) refer to the expenses  
associated with attending an oral hearing or otherwise participating in a  
proceeding, and to the attendance of a representative of the party at a hearing or  
other proceeding related to the appeal. The repeated reference to a proceeding  
related to the appeal appears to have been intended to capture both the central  
hearing of an appeal, and other proceedings related to the appeal. This might  
include, for example, a pre-hearing conference.  
Similar wording is not expressly contained in section 7(1)(b). Reading  
the section as a whole, however, I consider that this provision would reasonably  
be read as authorizing the reimbursement of expenses associated with obtaining  
or producing evidence submitted to the appeal tribunal at a hearing or other  
proceeding related to the appeal. On a liberal and purposive reading of this  
provision, I would also interpret this as including the authority to grant  
reimbursement of expenses, in connection with an application for  
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WCAT Decision Number:  
A2101852 (June 14, 2022)  
reconsideration of a WCAT decision made on an appeal, to a party which  
was a party to the original appeal.  
Assuming I have the authority to grant reimbursement of expenses, I would  
nonetheless decline to do so in the circumstances of this case (which  
involves “stage one” of an application for reconsideration). While there is  
no authority on point, it seems to me that the purposes of section 7 of the  
Appeal Regulation would generally be better served by deferring  
consideration of such requests for reimbursement to the “stage two”  
reconsideration panel (after grounds for reconsideration have been  
established).  
To my mind, the discretion under section 7 of the Appeal Regulation  
should be applied in a fashion which furthers the purpose of assisting  
in WCAT’s adjudication or inquiry concerning the merits of an appeal.  
Such consideration is better provided by a panel dealing with “stage two”  
of an application for reconsideration on the merits, after grounds for  
reconsideration have been established. The “stage two” panel is in a better  
position to consider whether reimbursement should be granted on the basis of  
the Board’s tariff, or whether any higher amount is warranted. I do not consider  
that reimbursement of expenses should be granted in the initial decision  
concerning whether grounds for reconsideration are established. In my  
view, this accords with the general intent evidenced in section 7 of the  
Appeal Regulation that reimbursement of expenses be authorized in  
relation to an appeal. While an application for reconsideration on the basis of  
new evidence remains a reconsideration application at both stages one and two,  
I consider that the latter stage is more akin to an appeal concerning the merits.  
The first stage is focused on the threshold issue as to whether reconsideration  
grounds are established.  
An application for reconsideration involves somewhat different factors than apply  
to an appeal in the first instance. For example, it would seem reasonable for an  
unsuccessful appellant to seek further evidence to support their case. However,  
it would seem strange to grant reimbursement of the cost of obtaining such a  
report, if the request for reconsideration was denied on the basis that the  
appellant failed to exercise reasonable diligence in obtaining the report for  
consideration in the appeal in the first instance.  
In the present case, I do not consider that reimbursement of  
expenses is warranted, as the new evidence did not address the central issue as  
to whether the worker was disabled during the time period in question. As well, I  
read the criteria at MRPP item #13.23 as concerning an appeal where the merits  
are properly raised before WCAT, and as not being framed with reference to the  
specific topic of an application for reconsideration. I base my decision  
concerning expenses on the reasoning in this last paragraph. My other  
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WCAT Decision Number:  
A2101852 (June 14, 2022)  
reasoning on this point is more tentative in nature, and is not essential to my  
conclusion.  
[emphasis added]  
[568] In WCAT-2007-00116, in which I found that new evidence reconsideration grounds had not  
been established and there would be no stage two reconsideration application, I made  
comments similar to those found in WCAT-2006-04504, and I denied a request for  
reimbursement. I also noted I had taken into account the comments in WCAT-2006-04538.  
[569] In later cases, I cited WCAT-2006-04538 and noted it had been reconsidered but observed that  
its setting aside was not based on any error of law found in the panel’s analysis. (It was set  
aside on the basis that a reconsideration submission had not been disclosed to a party.)  
[570] I note that in WCAT-2014-00267, the panel who issued WCAT-2006-04538 ordered  
reimbursement in connection with evidence that did not satisfy the new evidence  
reconsideration grounds. The panel made no reference to WCAT-2006-04538. As well, the  
panel made no reference to the practice directive in item #20.3.2 of the MRPP, which at the time  
provided that “requests for reimbursement of expenses will generally be addressed by the  
second stage reconsideration panel [italics in the original].”  
[571] Item #20.3.2 continues to include such language as part of the following practice directive:  
a. If the objection sets out potential grounds for reconsideration, TCO [Tribunal  
Counsel Office] will advise the applicant that the reconsideration will proceed.  
TCO will forward the application to the registry which will process the  
application and invite written submissions from the parties.  
b. Once submissions are complete, the reconsideration application will be  
assigned to a panel for decision about whether there are grounds for  
reconsideration.  
c. If a panel decides that there was a breach of procedural fairness, that WCAT  
had no power to decide a matter, or that WCAT failed to decide a matter that  
WCAT was required to decide then the application will proceed to the second  
stage in which the panel will hear all or part of the appeal afresh. WCAT will  
decide how the second stage will be conducted.  
d. If a panel decides that there are new evidence grounds for  
reconsideration, the application will proceed to the second stage in  
which the panel will reconsider the previous decision on the basis of  
the new evidence. The second stage panel’s decision will only concern the  
specific issues on which the new evidence grounds were met and whether  
the new evidence will result in a change to the original decision.  
e. WCAT will decide how the second stage of new evidence reconsiderations  
will be conducted. The statutory time limit for decision-making does not apply  
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WCAT Decision Number:  
A2101852 (June 14, 2022)  
to the second stage of a new evidence reconsideration, however WCAT will  
nominally apply a 180-day time limit.  
f. WCAT will invite respondents to participate in both stages of the  
reconsideration process.  
g. Where a reconsideration application is based on new evidence,  
requests for reimbursement of expenses will generally be addressed in  
the second stage of the reconsideration.  
[emphasis added; footnotes deleted]  
[572] Similar wording has been found in item #20.3.2 since November 2009.  
[573] Of interest the same panel who issued WCAT-2014-00267 did cite item #20.3.2 in  
WCAT-2015-01971, in which the panel denied a worker’s reimbursement request in a decision  
which found that new evidence reconsideration grounds had not been established. In denying  
reimbursement, the panel stated that WCAT’s general practice has been to not grant  
reimbursement of expenses in connection with new evidence applications unless the new  
evidence grounds for obtaining reconsideration are met and the evidence is then considered on  
the merits. The panel determined that the evidence was not substantial15.  
[574] In considering the matter of reimbursement, I note that had I found a breach of procedural  
fairness, the WCAT decision would have been set aside and the appeal from the Review  
Division to WCAT would have been reinstated. It would then have been open to the panel  
assigned to the reinstated appeal to consider a request for reimbursement of Dr. Fern’s reports,  
as such reports would most certainly be relied upon by the worker in a reinstated appeal.  
However, I found there was no breach of procedural fairness. Thus, there is no reinstated  
appeal in which reimbursement may be sought.  
[575] As well, if I had found that new evidence reconsideration grounds had been established, the  
matter of reimbursement could have been addressed at stage two pursuant to the guidance  
found in the practice directive. However, I found that new evidence reconsideration grounds  
have not been established.  
[576] I am now left with considering prior WCAT decisions and the practice directive. Regarding the  
latter, it does not expressly state that reimbursement is not available as part of an unsuccessful  
stage one new evidence reconsideration application. One could infer the practice directive does  
provide that, in that it makes no express provision for such reimbursement. However, the use of  
the word “generally” might suggest it would be open to address reimbursement as part of a  
stage one decision whether that decision was favourable or unfavourable.  
15 That decision was set aside on judicial review, but no comment critical of the denial of reimbursement  
of expenses was made by the court.  
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WCAT Decision Number:  
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[577] Aside from the matter of how to interpret the practice directive, one needs to also consider  
whether the practice directive is binding in the first place.  
[578] In that regard, subsection 13(1) of the ATA establishes WCAT may issue practice directives  
consistent with the ATA and the Act, regulations made under those acts, and any rules of  
practice and procedure made by WCAT. Notably, subsection 13(2) of the ATA provides that  
WCAT is not bound by its practice directives in exercising its powers or the performance of its  
duties. Thus, I am not bound by the practice directive.  
[579] After having considered the matter, I deny the worker’s request for reimbursement of expenses.  
I consider there is a significant question as to whether reimbursement of expenses may be  
ordered under the Regulation in connection with a new evidence reconsideration application. To  
the extent there may be an argument that there should be some eligibility for reimbursement,  
I consider such an argument would support reimbursement in connection with stage two of the  
new evidence reconsideration process. The worker’s application does not satisfy stage one.  
Among other matters, while Dr. Fern’s reports were material evidence, they were not substantial  
evidence owing to the fact they were based on facts not accepted by the WCAT panel. I find no  
persuasive basis to depart from WCAT’s general practice to not grant reimbursement of  
expenses in connection with new evidence applications unless the new evidence grounds for  
obtaining reconsideration are met and the evidence is then considered on the merits. Thus, I  
deny the worker’s request for reimbursement of expenses.  
Conclusion  
[580] I deny the worker’s reconsideration application. I find that there was no breach of the rules of  
procedural fairness that would justify setting WCAT-2014-03255 aside. Further, new evidence  
reconsideration grounds have not been established. Pursuant to subsection 309 (1) of the Act,  
WCAT-2014-03255 continues to be final and conclusive.  
[581] As noted above, I deny the worker’s request for reimbursement of expenses.  
Randy Lane  
Vice Chair  
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