WORKERS’ COMPENSATION BOARDAPPEAL TRIBUNAL

CASE I.D. [personal information]

BETWEEN:

WORKER

APPELLANT

AND:

WORKERS’ COMPENSATION BOARD

RESPONDENT

DECISION #5

Maureen M. Gregory, Q.C. Solicitor for Appellant

Brian J. McKenna Solicitor representing the Workers’ Compensation Board

Place and Date of Hearing Best Western Charlottetown, Prince Edward IslandMay 17, 2000

Date of Decision August 25, 2000

FACTS

Briefly stated, the facts in this case are as follows:

The worker became ill while at work on January 18, 1999 apparently as a result of being

exposed to toxic chemicals [personal information] . She is currently under the care of Dr.

McLure whose practice is in the field of Clinical Psychology and Neuropsychology at

Bedeque, Prince Edward Island.

On August 5, 1999 Dr. Wedge, the medical advisor to the Workers Compensation Board

suggested via his interoffice memo to the Case Worker Jean Tremere, that the worker be

evaluated by Dr. McLure. Dr. Wedge also suggested that the worker be seen by Dr.

Marchant who he expected would be coming to Prince Edward Island within the following

two (2) months. Dr. McLure’s Report is dated September 15, 1999. In that report it is not

mentioned when his actual assessment of the worker was carried out.

From April 8th to and including August 18, 1999 the worker paid for her own medical aid and

associated travel costs in going to and from Oromocto, New Brunswick, where she received

treatment from Dr. Reid. These costs amount to $5,464.62.

The worker’s request for reimbursement of these costs was denied by the Board. Following

a Reconsideration Hearing, the Internal Reconsideration Officer confirmed the Board’s

decision not to reimburse the worker. The Internal Reconsideration Officer considered the

Board’s Policy on “Building Related Illnesses” and on “Medical Care - Out of Province

Referrals”, Sections 18(2) and (3) of the Act and all of the correspondence in the worker’s

file.

The reason for the refusal to reimburse the worker was because the worker “was not

approved nor referred to Dr. B. Reid by the WCB”.

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GROUNDS OF APPEAL

The Grounds of Appeal are as follows:

i. The Board failed to give consideration to the fact that the medical treatment given by

Dr. Reid was a direct result of a referral made to Dr. Reid by [the Worker’s] family

physician, Dr. Doug Meek;

ii. The Board has, in effect, substituted its opinion for the opinion of [the Worker’s]

treating physician as to the advisability of specific medical treatment. By the failure

to pay the cost of medical treatment that was given as a direct result of a referral by

[the Worker’s] treating physician, the Board has usurped the role of the physician,

ie. that of prescribing and directing the nature of her treatment and care, and thereby

exceeded its authority;

iii. The Board failed to give proper consideration to the fact that Dr. Wedge, the Board

medical advisor, was aware that Dr. Meek had made a referral to “an environment

health specialist”. Dr. Wedge’s assessment of February 18, 1999, states, speaking

of Dr. Meek’s report of January 19, 1999: “No specific treatment was given, although

he (Dr. Meek) notes a referral to an environment health specialist will be made” and

further, that: “She has a referral to Dr. Elliot, who apparently is a specialist in

Environmental medicine working somewhere in the Dartmouth, Nova Scotia area”.

In a letter to Dr. Meek, dated the same date (February 18, 1999), Dr. Wedge states:

“She is also awaiting an assessment from Dr. Elliot that you have arranged”. Dr.

Wedge did not express to Dr. Meek any disapproval or disagreement with this course

of action, and in fact, his correspondence indicates either express or tacit approval.

iv. The Board disregarded the evidence given at the hearing to the effect that there is no

recognized certification or designation in Canada in the field of environmental

medicine. Physicians practising in this specialty in Canada are generally physicians,

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who have received training in Environmental Medicine from the American Academy

of Environmental Medicine, as Dr. Reid had done. Therefore, to find that Dr. Reid

is not qualified because, as the decision of the Board states, he has “no Canadian or

other certification as a specialist” means that there are no physicians in Canada who

could be considered qualified in this area of medicine, including Dr. Elliot. Such a

finding is inconsistent with the Board’s policy on “Building Related Illness”, dated

March 11, 1993 which refers to an “environmental medicine” specialty and

inconsistent with Dr. Wedge’s aforesaid assessment and correspondence of February

18, 1999.

v. The Board, in its decision, refers to and relies upon Dr. Wedge’s memo of June 22,

1999, wherein he states that: “Dr. Reid has been involved in a number of previous

WCB cases mainly related to environmental allergies. Dr. Reid is a family physician

with some interest in environmental allergens and non-Medicare related testing.”.

He goes on to say: “At this time, it is my understanding that clients at the Workers

Compensation Board will be referred to physicians with recognized credentials in the

various fields of specialty. But the testing done in this nascent field of medicine does

not stand up to peer reviewed medical scrutiny and is currently of questionable

value.”. However, the Board erred in relying upon this memo in the manner

following:

a. The memo mis-states Dr. Reid’s qualifications, stating he is a “family

physician with some interest in environmental allergens” indicating that Dr.

Wedge was not aware of Dr. Reid’s training in Environmental medicine from

the American Academy of Environmental Medicine;

b. Dr. Wedge’s position in the June memo is at odds with his earlier assessment

and correspondence to Dr. Meek (both dated February 18, 1999) wherein he

refers, without taking any exception, to the fact that [the Worker] would be

referred to a specialist in environment medicine;

c. Dr. Wedge’s memo does not disclose any basis for the extremely broad

conclusions drawn by him as to the value of environmental medicine and, as

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such, those comments should have been given little or no weight by the

Board;

vi. The Board considered improper factors in its decision, and in particular:

a. The issue of whether Dr. Wedge made or arranged the referral to Dr. Elliot, -

the decision states: “I go through this recollection from reports to establish

that the Workers Compensation Board did not initially make the referral

either through or by Dr. Wedge in that he did not make the suggestion of Dr.

Elliott to Dr. Meek ...”. However, whether Dr. Wedge made or arranged the

referral or merely approved/acquiesced in it is of no consequence in terms of

whether the costs associated therewith ought to be compensated by the Board,

as it is not a requirement that Dr. Wedge originate or arrange medical

treatments or referrals:

b. The nature of discussions between Ms. Tremere and [the Worker] as to

whether the costs of treatment by Dr. Reid would be paid - in that regard:

1. The evidence indicates that the matter was under consideration until

August, 1999, when [the Worker] was advised that the treatment

would not be paid for;

2. What [the Worker] was told or not is not relevant, in any event, to

whether the cost of medical treatment is property compensable under

the Workers Compensation Act;

3. Since the Case Manager’s decision was under reconsideration before

the Board, it was improper for the Board to use the Case Worker’s

decision or any discussions related thereto as a ground for refusing

payment. To do so renders the right of reconsideration of no effect

and confirms that the Board misapprehended its role in carrying out

a reconsideration.

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vii. The decision of the board indicates a distinct bias against the worker as evidenced by

the following:

a. The decision focuses heavily on what [the Worker] was told or not told by

Ms. Tremere, and on whether Dr. Wedge arranged the appointment, rather

than on the evidence put before the board as to 1. the qualifications of Dr.

Reid; 2. the nature of the treatment he provided, and 3. the legal issues

affecting entitlement under the Act;

b. The decision refers to selected file materials, with the apparent intent of

making it appear that [the Worker] and/or Dr. Reid were not co-operative

with the Board, as, for example, at paragraph 8 of the decision where it is

stated: “Ms. Tremere had also asked [the Worker] for Dr. Reid’s

qualifications. [The Worker] did indicate that Dr. Reid refused to send

documents to WCB because her doctor, Dr. Meek, had sent her to Dr. Reid,

not WCB”. This is apparently a reference to Jean Tremere’s letter to Dr.

Meek dated June 11, 1999, where she states: “[the Worker] indicates that Dr.

Reid would not be forwarding a report to us as we did not do the referral.”.

Taken at is has been, out of context, this statement implies a failure on the

part of Dr. Reid and/or [the Worker] to cooperate with the Board. However,

the Board failed to consider Jean Tremere’s memo dated June 3, 1999,

outlining the actual conversation between herself and [the Worker] , where

she states: “I advised I never received any reports from the doctor in

Oromocto. Joan said he advised he would send something to Dr. Meek and

advise Dr. Meek to send us a copy of it.”. The Board fails to reference that

passage in its decision, nor passages such as “[the Worker] called, as she

likes to keep me updated, and advised me she has an appointment for allergy

treatment on September 16, 21, 24, 1999 and October 4, 1999.". The memos

of Jean in the file indicate a high level of co-operation between [the Worker]

and her Case Worker but the decision highlights only the passage referred to

above taken out of context.

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viii. The Board failed to consider the evidence provided as to Dr. Reid’s 1. qualifications

are comparable to Dr. Elliot’s, (to whom the referral was initially to be made), as to

2. the nature of the treatment to be provided, and failed, in addition, 3. to take into

account that Worker’s Compensation Boards in other Provinces refer patients to Dr.

Reid (as set out in the memo from Dr. Wedge, dated June 22, 1999).

ix. The Board failed to apply proper legal principles and /or exercised its authority

arbitrarily and unreasonably in failing to pay for the cost of medical treatment

incurred in connection with a compensable injury/illness. [The Worker] is receiving

benefits under the Workers Compensation Act for a compensable workplace

injury/illness and has incurred expense in taking a treatment that she received on the

basis of a referral by her physician. In such circumstances, the Workers

Compensation Act contemplates that she will be compensated for the cost of medical

aid and that she will not have to incur an unreasonable financial burden for simply

following her doctor’s recommendations for treatment of an illness arising out of her

employment. Specifically, the Board failed to consider and/or apply the Workers

Compensation Act and, in particular, Section 18 dealing with the provision of

medical aid and Section 17 requiring the Board to make decisions “in accordance

with the real merits and justice of the case” and in case of doubt to resolve issues “in

favour of the claimant”.

x. The Board’s decision effectively denies to [the Worker] medical treatment related “to

the physiological aspect of her workplace injury/illness” as the only treatment

approved by the Board is the treatment provided by Dr. McLure, in an effort to

improve the cognitive deficits resulting form her injury/illness. [The Worker’s]

injury/illness occurred in January, 1999, and a definite decision as to payment of the

cost of Dr. Reid’s treatments was not made until August, 1999, nor, despite

repeatedly being asked by [the Worker] to do so, did the Board recommend referral

to any other physician/specialist during that time, other than Dr. Marchant, (in the

latter part of that time period) who routinely reviews cases on behalf of the Workers

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Compensation Board, and whose authority to do so has recently been held by the

Supreme Court of Prince Edward Island to be lacking.

xi. The Board, in its decision relies upon the Board’s policy in respect of “Out of

Province Medical Care” to deny compensation for the cost of treatment, saying the

treatment was not approved by the Board. However, the policy states there must be

a request from the P.E.I. physician for treatment outside the Province and approval

by the client’s Adjudicator or Case Manager. Here, the decision under

reconsideration is the very issue of whether approval should have been given by the

Case Manager. By using the Case Manager’s decision to deny the claim, the Board

has rendered the reconsideration of no effect and has totally misapprehended its role

in carrying out a reconsideration.

xii. Such other grounds as may appear.

THE LEGISLATION

Section 18 states:

MEDICAL AID AND REHABILITATION

1. The Board may provide any worker entitled to compensation under

this part with medical aid, and every such worker is entitled to such

prosthetic appliances and to such dental appliances and apparatus

as may be necessary as a result of any accident, and to have the

same kept in repair or replaced in the discretion of the Board, and

to such corrective lenses as may be necessary as a result of the

injury, which corrective lenses may, in the discretion of the Board,

be renewed from time to time.

2. The medical aid is at all times subject to the supervision and control

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of the Board and shall be paid for by the Board out of the Accident

Fund, and such amount as the Board may consider necessary

therefor shall be included in the assessment levied upon the

employers.

3. All questions as to the necessity, character, and sufficiency of any

medical aid furnished or any vocational or occupational

rehabilitation shall be determined by the Board.

9. Every physician, surgeon and hospital official or other person

attending, consulted respecting, or having the care of, any worker,

shall furnish to the Board such reports as may be required by the

Board in respect of the worker.

10. No physician, surgeon or other person, entitled to be paid by the

Board under this Part for any services performed or for any

medicines or materials supplied shall make any charge against the

injured worker, the employer, or any person other than the Board,

for such services, medicines or materials.

Section 32 states:

JURISDICTION

1. Subject to section 56, the Board has exclusive jurisdiction

to examine into, hear, and determine, all matters and

questions arising under this Act and as to any matter or

thing in respect of which any power, authority, or

discretion, is conferred upon the Board; and the action or

decision of the Board thereon is final and conclusive and is

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not open to question or review in any court, and no

proceedings by or before the Board shall be restrained by

injunction. (emphasis added)

2. Without limiting the generality of subsection (1) the

decisions and findings of the Board upon all questions of

law and fact are final and conclusive, and in particular, the

following shall be deemed to be questions of fact:

.... (k.) whether or not any worker . . . is himself or

herself . . . entitled to compensation thereunder; (emphasis added)

Section 17 states:

Notwithstanding anything in this Act, on any application for compensation

the decision shall be made in accordance with the real merits and justice

of the case and where it is not practicable to determine an issue because the

evidence for or against the issue is approximately equal in weight, the issue

shall be resolved in favour of the claimant. (emphasis added)

Board Policies State:

Medical Care - Out-of-Province Referrals

1. The cost of out-of-Province medical treatments for Board clients

will be paid by the Board only where:

1) there has been a request from a Prince Edward Island physician to

refer the client for medical treatment/assessment outside the

Province; and

2) that request has been approved by the client’s Adjudicator or Case

Manager at the Workers Compensation Board.

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2. The fee for out-of-Province medical treatment, that is paid by the Board,

will be limited to the regular fee payable in the Province or State where the

treatment is provided.

3. The Board will consider payments for emergency out-of-Province referrals

that were made by a physician where the physician was not able to obtain

advance approval.

Building Related Illness

The Workers Compensation Board will consider claims for Building Related Illness when

there is a specific causal relationship which meets the following conditions:

A. There must be a well defined medical condition present and the diagnosis must be

confirmed by a medical specialist, certified by the College of Physicians and

Surgeons or the Canadian Board of Occupational Medicine.

B. There must be a well defined substance present in the workplace. The presence of

this substance must be confirmed by a qualified specialist or technician and it must

be present at a level which is known to cause health effects.

C. There must be medical evidence from a certified specialist and preferably a

specialist certified in occupational medicine and/or environment medicine

indicating a direct causal relationship between the exposure and the medical

condition.

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Section 56(17) of the Workers Compensation Act states:

17. The Appeal Tribunal shall be bound by and shall fully implement the policies of

the Board and the Appeal Tribunal, its chairperson and members are prohibited

from enacting or attempting to enact or implement policies with respect to

anything within the scope of this Part.

Essentially the worker wants “reimbursement”. It is noted that Section 18(10) of the Act

provides for physicians not making any charge against the injured worker . . . or any person

other than the Board for such services, medications or materials.

Sections 18(9) and (10) make for the smooth and efficient operation of the Act, relative to

the providing of medical reports from the physicians, as well as the prohibition against any

physician (entitled to be paid by the Board) charging the injured worker.

When it comes to the matter of medical aid being provided by physicians whose practice is

outside of Prince Edward Island the Policy on Out-of-Province Referrals kicks in. In part

is states that:

. . . The cost of out-of-Province medical treatments for Board clients will

be paid by the Board only where:

1. there has been a request from a Prince Edward Island physician to

refer the client for medical treatment/assessment outside the

Province; and

2. that request has been approved by the client’s Adjudicator or Case

Manager at the Workers Compensation Board. (Emphasis added)

If the claim should involve the question of whether or not the worker suffered the

injury/illness as a result of the existence of certain conditions at the work site (involving the

building) then the Board “will consider claims” when there is a “specific causal connection”

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which involves: confirmation of “a well defined medical condition, confirmation of the

diagnosis of a certified medical specialist, proof of the substance at the work place as

confirmed by a qualified specialist or technician, and medical evidence from a certified

specialist in occupational and/or environmental medicine indicating a direct relationship

between the exposure and the medical condition.

It is not disputed that the services provided by Dr. Reid are medical aid. Medical aid is

defined as:

(r) “medical aid” includes medical, surgical and dental aid, hospital and

nursing services, chiropractic services provided by a registered

chiropractor, occupation therapy and physiotherapy services provided by

a licensed practitioner, x-ray and other treatment, drugs, dressings,

appliances, apparatuses, transportation and other goods, services and

things the Board may authorize in promoting the medical rehabilitation of

an injured worker;

Should there be any doubt, it is now clear that the broad word “compensation” includes

medical aid. This was so held in Thompson v. NS WCB (1996) NSJ No. 44 NSCC, February

1, 1996 at Paragraph 37:

Based on my observations concerning the usual meaning of compensation

and putting it into the context of the Act as it now stands, I conclude that

compensation includes medical aid.

It is noted that the wording of 18(3) of the Act is similar to the Nova Scotia legislation.

Section 72 of the Workers Compensation Act of Nova Scotia states:

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All questions as to the necessity, character and sufficiency of any medical

aid furnished shall be determined by the Board.

It must be inferred that the medical aid, as defined in Section 1 and referred to in Section 18

must be provided/supplied to the worker within a reasonable time.

In the circumstances, the seriousness of the work related injury (exposure to chemical toxins,

causing immediate and severe discomfort) in January of 1999 places some onus or burden

on the Board to take affirmative steps, long before the passage of six (6) months before it

was in a position to even make a formal referral to medical persons, who are practising in the

field of medicine in which the worker will ultimately find treatment.

It is noted, from the wording of the two (2) Policies referred to in the Decision of the Internal

Reconsideration Officer that in the case of Out-of-Province referrals, the request (from a PEI

physician to refer the client for medical treatment/assessment) must be approved by the Case

Worker or the client’s Adjudicator.

Out-of-Province referrals, may or may not result in a “claim” being accepted “by the Board”.

Board Policy indicates that the Board “will consider” claims when there is a specific causal

relationship and certain other specific conditions are met.

It is clear therefore, that the cost of the medical aid (including an Out-of-Province referral)

is a matter that stands on its own. In other words, notwithstanding the referral, the Board

may, in its wisdom, deny a claim because all or some of the conditions in the Policy on

Building Related Illnesses can not be met.

A heavy burden indeed is placed on the Case Worker or client’s Adjudicator. Ms. Tremere,

is called upon to decide whether or not the costs associated with “medical treatment” are to

be paid by the Board.

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The Board Policy on Out-of-Province Medical Care does not direct the Case Worker to

consider whether or not the physician is also a specialist.

There is no reference to the physician holding any specific credentials over and above those

of a “physician”.

The record clearly establishes that:

1. The Case Worker was aware that the worker was requesting that Dr. Reid’s

treatments and her associated costs in connection with same be paid - although it

appears that the formal request from the worker’s family physician had not been

received by the Case Worker.

2. The Case Worker never made it unequivocally clear to the worker that the Board

would not reimburse her for these costs until August 10, 1999.

3. The Case Worker sought direction on the matter of these costs from the Client

Services Division/Department.

4. As a result of the inter-office memo’s in this file, there was much concern raised by

the Director of Client Services, [personal information], and the Workers

Compensation Board Medical Advisor, Dr. Wedge, as to the qualifications of Dr.

Reid over and above those of “a physician”.

5. That the matter of reimbursement for the medical aid and associated costs of the

worker going to Oromocto was, in the eyes of [personal information], Dr. Wedge and

ultimately the Case Worker, inexorably dependant upon the “claim” for

compensation being approved and/or all of the conditions referred to in the policy

“Building Related Illnesses” having been met to the satisfaction of the Board

(presumably the Case Worker).

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The claim for compensation was accepted, tentatively by the Case Worker on March 8, 1999.

In his Environmental Health Assessment Dr. Reid reports that the worker was assessed on

April 8, 1999. His report in part states:

Currently this patient appears to be suffering from neurocognitive

impairment secondary to exposure to environmental toxins, reactive

airways dysfunction syndrome and chronic fatigue syndrome. As part of

her assessment a number of laboratory investigations were ordered

including aromatic and chlorinated hydrocarbons as well as aliphatic

solvents. [The worker] was found to have markedly elevated levels of 2-

Methylpentane (4.6), 3-Methylpentane (35.8), and N-Hexane (33.8). These

levels are many times higher than is generally found in the population.

These substances are known components of [personal information]

SUMMARY - In summary, [the worker] has a well documented chronic

exposure history to [personal information]. She has developed symptoms

compatible with neurotoxicity, reactive airways dysfunction syndrome, and

chronic fatigue syndrom. These disorders are all known particularly of

chronic exposure to toxic chemicals. She also has documented elevated

levels of known neurotoxins in her blood.

TREATMENT RECOMMENDATIONS -

1. The patient avoid all exposures to exhaust fumes and other

chemicals that provoke her symptoms.

2. Undergo comprehensive allergy testing at the

Environmental Health Center.

3. Avoid all exposures to chemicals in water, air and food.

4. Program of nutritional supplementation orally and

intravenously to ais in detoxification of the above mentioned

toxic Xenobiotics.

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5. A sauna program to aid in excretion of these aliphatic

compounds.

She is currently unable to work due to the severity of her symptoms. A

return to work in her present place of employment would be detrimental to

her health and prevent recovery.

A review of Dr. Marchant’s Report (based on her review of the file) of March 18, 1999

indicates that she made several recommendations with respect to improving the conditions

at the work site. She made no specific recommendations involving treatment of the worker.

In Dr. Marchant’s second Report of September 28, 1999, as a result of her examination of

the worker, there are several recommendations, again with respect to improvements or

changes to be made at the work site.

From the medical perspective Dr. Marchant suggested that the worker “participate in

intellectual exercises”. It was also recommended that the worker “have a few sessions with

a psychologist who is skilled in helping individuals regain their intellectual skills and obtain

relaxation tapes.

In the Thompson v. Nova Scotia Workers Compensation Board case the Appeal Board

ordered:

a. That Mrs. Thompson be provided the assistance of the Board in

obtaining the treatments in question;

b. That the costs of those treatments be assumed by the Board,

c. For a period of one year.

Recognizing the strong language of the privative clause in Section 32(1) it is necessary to

consider what power or authority this panel has in considering the matter before it.

In this regard, some guidance is found in the decision of the Appeal Division of the Supreme

Court of Prince Edward Island in Johnston v. Murchison (1995), 127 Nfld. & P.E.I.R. 1 (P.E.I.

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S.C., A.D.) at pages 8 and 9. The parameters of review on an Appeal are stated as follows:

1. That an appellate court should not interfere with the conclusions of fact

reached by a trial judge except in the event of a clear error on the face of the

reasons or conclusions of judgement;

2. The privileged position of the trial judge to assess evidence extends to the

evidence of expert witnesses as well as ordinary witnesses and the appellate

court should not reconsider the evidence of expert witnesses when the

conclusions reached by the trial judge could reasonably be supported by the

evidence of the expert witnesses;

3. The appellate court does not have jurisdiction to interfere with the trial judge’s

assessment of the evidence as a whole unless, again, in conducting the

assessment of the evidence on a whole, the trial judge made an error clear on

the face of the record or conclusions of the judgment appealed from;

4. Where the credibility of witnesses is not in issue, the appellate court may review

a trial judge’s finding of fact to determine if the findings were based on a failure

to consider relevant evidence or on a misapprehension of the evidence;

5. Findings of fact based on the credibility of witnesses are not to be disturbed

unless it is shown the trial judge made some palpable and overriding error

which affected his or her assessment of the facts;

6. The trial judge’s conclusion must be consistent with the evidence and that no

evidence essential to the outcome of the case be overlooked or ignored;

(emphasis added)

7. An appellate court should not interfere unless it is certain that its difference of

opinion with the trial judge is as the result of an error. The appellate court must

be able to clearly identify the error made by the trial judge or it should not

interfere unless the trial judge’s finding of fact is so unreasonable that nothing

he or she could have gleaned from this privileged position could possibly lead

to the conclusion reached.

These parameters, in fact, were a summation of the guidelines and/or principles set out by the

Supreme Court of Canada in Lapointe v. Hopital Le Gardeur (1992) 1 S.C.R. 351 (S.C.C.)

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In the Johnston case, the P.E.I. Appeals Division of the Supreme Court applied the law as

stated by the Supreme Court of Canada in Toneguzzo-Novell v. Burnaby Hospital, (1994) 1 S.C.R.

114 (S.C.C.) at page 121

It is now well established that a Court of Appeal must not interfere with a trial judge’s

conclusions on matters of fact unless there is palpable or overriding error. In principle, a Court

of Appeal will only intervene if the judge has made a manifest error, has ignored conclusive or

relevant evidence, has misunderstood the evidence, or has drawn erroneous conclusions from it

. . .

This panel therefore should not and cannot interfere with the decision of the Board on matters

of fact unless there is evidence of palpable or overriding error on the part of the Board. In

short, unless it made a manifest error, ignored conclusive or relevant evidence, mis-understood

the evidence or has drawn erroneous conclusions from it.

With respect, at least to the question of entitlement to compensation, it is well settled in this

Province that the Workers Compensation Act should be given a liberal interpretation.

In 1983 case of MacLeod v. Workers Compensation Board, 40 Nfld & PEIR, 143, PEI C.A.,

Mr. Justice Mitchell stated at page 143:

The Workers’ Compensation Act is obviously remedial legislation

designed to protect workers and their dependents from the hardship of

economic loss sustained through injuries suffered by the worker in the

course of his employment. Section 9 of the Interpretation Act, S.P.E.I.

1981, c. 18 provides that: 9. Every enactment shall be construed as being

remedial, and shall be given such fair, large and liberal construction and

interpretation as best ensured the attainment of its objects.

Accordingly, the Workers’ Compensation Act should be interpreted

liberally so as to provide compensation for work-related injuries to as

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many as can reasonably be seen to fall within its purview. Workers’

Compensation Appeal Board v. Penney (1980), 38 N.S.R.(2d) 623; 69

A.P.R. 623(S.C.App.Div.). A worker, such as the appellant, should

therefor be given compensation benefits if his case can reasonably be

brought within the scope of the legislation. (Emphasis added)

Speaking on the entitlement of the Board to draw inferences from all of the circumstances

of the case, and in the case of doubt, resolving issues involving “compensation” in favour

of the worker, some fifteen (15) years later, Mr. Justice Mitchell stated in Blanchard v.

Workers’ Compensation Board of P.E.I. 159 Nfld&PEIR, 429 PEICA at page 244 and 245:

“Right To Compensation . . . on any application for compensation an

applicant is entitled to the benefit of the doubt, which means that it is not

necessary for the applicant to adduce conclusive proof of his right to the

compensation applied for, but the Board is entitled to draw and shall draw

from all circumstances of the case, the evidence and medical opinions, all

reasonable inferences in favour of the applicant. . . .

[5] It is trite law that there is no right of appeal except to the extent

provided by statute, Section 32(2) of the Act provides for appeals from a

final decision of the respondent. However, this legislation only allows for

appeals upon issues of jurisdiction and questions of law. There is no right

to appeal the respondent’s findings of fact, and this Court has no right to

entertain such an appeal regardless of how much it might disagree with the

respondent’s assessments of the evidence. . . .

[6] However, the broad and exclusive fact finding jurisdiction of the

respondent is limited by s. 17 of the Act. A failure to apply, or a

misapplication of this provision, is subject to appellate review under s.

32(2).

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A review of the Grounds of Appeal indicates that the worker claims that the Board:

a. failed to adequately consider pertinent facts;

b. substituted its own opinion for that of the worker’s personal physician (with respect

to prescribing her treatment);

c. disregarded certain evidence relative to the specialty in the field of “environmental

medicine”;

d. erred in relying on inter-office memo(s) regarding the issue of Dr. Reid’s

qualifications;

e. considered improper factors in relation to the issue as to whether or not there had

been a request for a referral by the worker’s family physician, in considering what

was told to the worker by the Case Worker, relative to reimbursement for the costs

of the medical treatment as a determining factor;

f. improperly used the Case Worker’s decision or discussion between the Case Worker

and the worker, as grounds for refusal of the payment.

The Appellant also alleges that the Board misapprehended its role in carrying out its

reconsideration. Distinct bias on the part of the Board and the failure of the Board to apply

proper legal principles were also alleged by the Appellant. In addition, the Appellant alleges

the arbitrary and unreasonable exercise of its authority on the part of the Board.

In short, be that a good word, all of these issues go to jurisdiction in one way or another.

The question then becomes, has the Board exceeded its jurisdiction; and if so, what would

be the proper remedy in all of the circumstances?

From a reading of the Thompson case alone it is now clear that this panel has jurisdiction to

review the decision of the Internal Reconsideration Officer. The statements and the findings

mentioned in paragraph 51 of that case apply to the present case:

-21-

A review of the evidence and material before the Appeal Board indicates

that the treatment of environmental illness, or administering

environmental medicine, is a relatively new and developing discipline. I

see no legal impediment to the use or prescription of environmental

medicine by either the Board or the Appeal Board. Section 71 permits the

Board to provide a worker “with such medical aid as in the opinion of the

Board may be necessary as a result of the injury”. The Appeal Board

found the treatments are “a responsible and reasonable approach”. In

making that finding the Appeal Board not only exercised its jurisdiction,

but also brought to bear its expertise in the discharge of its duty.

Matters going to the jurisdiction by the Board: be it an excess of its jurisdiction, or failure

to properly consider and apply all pertinent evidence or to improperly interpret or apply the

Act, or Board Policy and/or any unreasonable or arbitrary exercise of its authority, are

reviewable by this Tribunal.

Was there a request by a Prince Edward Island physician for medical

treatment/assessment outside the Province?

A review of the materials indicates the following:

The worker suffered a serious work related injury on January 18, 1999. The Medical

Advisor to the Workers Compensation Board, on August 5th, suggested to the Case Worker

that the worker be evaluated by Dr. McLure, a neurophychologist, “to rule out any organic

cause” of her illness. In the fall of that year she started receiving medical treatment from him

for her injuries/illness.

The worker, as a result of her seeking immediate treatment in January, was referred by her

personal physician, Dr. Meek, to Dr. Reid who treated her extensively for the physiological

component of her illness. This treatment was abruptly terminated in August of 1999 when

-22-

the Board made it abundantly clear that it would not reimburse the worker for medical and

travel costs associated with this treatment notwithstanding that the worker apparently

benefited substantially from the treatment provided by Dr. Reid.

On February 18th the Workers Compensation Board’s Medical Advisor, by letter, reported

to the worker’s physician Dr. Meek, that he was aware of an expected report from Dr. Elliot

who practises in Nova Scotia. The Case Worker received a copy of that letter to Dr. Meek.

The worker’s medical Workers Compensation Board report forms completed by her

attending physician, Dr. Meek, on January 18, January 27, February 10 and 24, and March

3, all of which were received by the Board, indicate the involvement of “Environmental

Health Specialist”, referral to “specialists in environmental medicine”, referral to Dr. Bruce

Elliot, referral to Dr. Brian Reid of Oromocto, New Brunswick.

Further Workers Compensation Board Medical Reports completed by Dr. Meek and received

by the Board from April through to August of 1999 indicate the referral to and the treatment

by Dr. Reid.

On March 5, the Case Worker wrote to Dr. Rosemary Marchant seeking her opinion on

toxins, etc. and requesting a recommendation on the type of specialist that the injured worker

should see.

The Case Worker, confirmed, on March 8, 1999, that “the case will be accepted for now”.

The file memo indicates that the Case Worker was going to send the worker to a specialist

to get some recommendations from her (the specialist) as to whom the Board could send the

worker to see. The Case Worker confirmed that the injured worker had been referred to

someone.

In her July 27, 1999 letter to Dr. Marchant the Case Worker indicates her uncertainty with

respect to who should do the “Out-of-Province Assessment”. Simply stated, she just didn’t

know “who that would be or what she would be treated for”.

-23-

Irrespective of whether it was her duty as an employee to get this involved in an injured

worker’s medical care, she has (perhaps unintentionally) usurped the function of the injured

worker’s attending physician and likely that of the Workers Compensation Board’s physician

- to a degree at least.

On the other side of the ledger, and going to the crux of the issue that was before the Board:

a request for payment of out-of-province medical treatment and travel costs and approval of

same “by the Case Manger”, the record is clear that, well into the out-of-province treatment

program by Dr. Reid, the Case Worker felt that she could not make a decision on

reimbursing the injured worker who had by that time (June 3rd) incurred costs of $3,000.00.

The Case Worker confirmed that “these are decisions I can not make at all ...”, she would

“have to discuss it with someone else”.

Again on June 11, 2000 in the Case Worker’s letter to Dr. Meek, she states:

I am aware that [the injured worker] has been referred to see a Dr. Reid in

Oromocto, New Brunswick, ... [she] is looking for the Board to cover the

costs ...

Requesting information on Dr. Reid’s credentials and recommendations for treatment the

Case Worker concluded:

This is necessary for the Board to consider [her] request for the Board to

cover these medical expenses.

It has been noted that the Case Worker had indicated to the injured worker early in May on

two (2) occasions that Dr. Reid’s services would not be covered.

From an examination of these two (2) memos (referred to later in more detail) it is readily

apparent that this was “not her final answer” as the matter was still very much undecided in

June with no formal final answer until August 10th.

-24-

CONCLUSION

The Board, at least until August of 1999, took no issue with Dr. Meek’s referral of the

injured worker to Dr. Reid. From the injured worker’s point of view, the only issue from

January to August was whether or not she would be reimbursed. In all of the circumstances

it could hardly be said that the Board rejected or disapproved of the treatment given by Dr.

Reid. The statement in the text, Worker’s Compensation In Canada, at page 76 to the affect

that “Board’s generally accept the treatment decision of workers and their physicians”

applies in this case.

The refusal by the Case Worker to make a clear decision on the matter of reimbursement is,

in itself, an error going to jurisdiction and thereby reviewable.

Even if the Case Worker had unequivocally refused to approve necessary travel and lodging

expenses incurred in obtaining medical treatment available only out-of-province, it is clear

such expenses are included within the meaning of the word “compensation” in the Act.

By getting as involved in the issue of what kind of specialist the injured worker should be

seeing, and other medical matters better dealt with by either the injured worker’s physician

and/or the Workers Compensation Board Medical Advisor, the Case Worker: failed to take

into account all relevant matters (the injured worker was apparently being well attended to

by Dr. Reid) and in short, she usurped the function of medical personnel who were

responsible for directing the form of treatment for the injured worker - clearly the Case

Worker was acting in excess of her jurisdiction.

By not authorizing the payment for the treatment given by Dr. Reid, the Board has ostensibly

decided such treatment was not warranted. From the very outset, January through to August,

virtually all of the attending physician’s Workers Compensation Reports clearly point to an

environmental illness/injury.

The Board in not adequately coming to grips with this problem within the first few months

-25-

from the incident giving rise to the injury/illness, left the injured worker with little choice

but to follow the best available option - obtain the treatment from the physician in New

Brunswick to whom she had been referred by her own physician.

Section 18 (1) permits the Board to provide any worker with medical aid.

From the materials filed, it is apparent that the services provided by Dr. Reid were at lest part

of the relatively new and developing discipline of environmental medicine.

The material filed indicate that, at the Hearing before the Board, it was established that there

is presently no recognized certification or designation in Canada in the field of

Environmental Medicine.

The treatment by Dr. Reid appears to have been a responsible and reasonable approach. The

costs associated with same are recoverable - especially if the injured worker had little or no

choice but to seek immediate and effective medical treatment, out-of-province or out-of-

county, if necessary.

While not as fully credentialed as the apparently few other physicians practising in the

Maritimes in this field of medicine, Dr. Reid, as the materials on file would indicate, is by

no means a novice with little more than a passing interest in the subject of environmental

medicine. It is apparent that his qualifications include, as does Dr. Elliot’s, the course in

Environmental Medicine from the American Academy of Environmental Medicine.

Accordingly, when the Board informed the injured worker on August 10, 1999 that:

The Board will consider medical evidence from a certified specialist, and

preferable from a specialist certified in occupational medicine and/or

environmental medicine.

it was asking the injured worker to supply medical assistance that it could not itself find in

-26-

Eastern Canada and/or perhaps the whole Country.

The Board, in failing to take this relevant information into account acted in excess of its

jurisdiction in refusing to compensate the injured worker as requested.

It is noteworthy that the issue in this case deals, for the most part, with how the Board

proceeded to implement its “policy” with respect to out-of-province referrals.

It is not difficult to appreciate the difficulties of the Board in firmly following its policy,

especially with respect to matters involving compensation on the one hand; and, being

required to award a worker compensation benefits if his case can reasonably be brought

within the scope of the legislation (MacLeod v. WCB 40 Nfld & PEIR 143 (PEIC.A.)).

It is the finding of the Tribunal that, the decision of the Internal Reconsideration Officer, to

the effect that the injured worker was “compensated and medically managed according

to the Legislation, Policy and practice of the Board”, is erroneous. It was arrived at

without due regard for all of the pertinent facts surrounding the engagement of Dr. Reid and

the supply of medical aid by him - paid for by the injured worker herself. This is a palpable

and/or overriding error on her part.

From a different perspective, the same conclusion is reached. The Board, by not

compensating the injured worker erred in jurisdiction on the particular facts of this case.

Section 18(3) states:

All questions as to the necessity, character, and sufficiency of any medical

aid furnished or any vocational or occupational rehabilitation shall be

determined by the Board.

Section 72 of the Nova Scotia legislation has the same wording.

-27-

At Page 17 of the 1996 Thompson Case the following quotations are instructive:

Compensation must therefore be given a meaning wider than mere

disability income. It is also logical to conclude that benefits is a sufficiently

wide word to include disability income, medical aid and rehabilitation

assistance. (emphasis added)

Based on my observations concerning the usual meaning of compensation and

putting it into the context of the Act as it now stands, I conclude that compensation

includes medical aid. (emphasis added)

In regard to the respective jurisdictions of the Board and the Appeal Board,

it is interesting that s.72 of the Act mandates that the Board shall determine

“all questions as to the necessity, character and sufficiency of any medical

aid furnished”. The section does not grant exclusive jurisdiction to the

Board over such questions. Clearly, reg. 9(3)(a) gives the Appeal Board

authority to review medical opinions. Reg.14(1) authorized the Appeal

Board to obtain independent medical advice. Reg.16(2) authorizes the

Appeal Board to vary or reverse a decision of the Board and to take any

action that might have been taken by the Board under the Act. (emphasis

added)

The Case Worker’s memo to the file on May 4th states:

I spoke earlier to [the injured worker] with regards to the doctor she is

seeing in Oromocto. I told her that this was something the board would not

be looking at. I advised her in my experience we have never authorized or

paid for this. I advised we were not covering her dizziness or ringing in her

ears, but if she wished she could send me a letter of what this doctor was

doing for her and what his qualifications were and I would take it further

up the line. I advised that I could not guarantee her anything because my

-28-

past experience was we did not approve this type of treatment. I told her

when I spoke to Dr. Marchant I mentioned about her having trouble with

concentration and Dr. Marchant advised there was no neuropsychological

testing on file and that [the Worker] could be assessed by Dr. Charles

Hayes in Halifax, which I would be arranging for her. (emphasis added)

Speaking on what she felt the injured worker believed, the Case Worker in her May 10th

memo to the file reported:

[The injured worker] is aware in all probability that this is something the

Board will not look after, but in all fairness to her I wanted to know what

he is actually doing and I will take it further up the line. (emphasis added)

In her June 8th memo to the file the Case Worker reported that:

... Dr. Reid I believe deals with environmental issues. I told her that this

is not something we would look after. I advised certainly if she got some

information from the doctor indicating what he was doing and his

qualifications we would look at it. As far as I know right now this is not

something the Board would entertain until at least we know who this Dr.

Reid is and what type of work he was doing and if he is an

environmentalist. (emphasis added)

Referring however, back to the May 4th memo to the file, while the Case Worker had some

knowledge of the injured worker’s visits to Dr. Reid in Oromocto, New Brunswick, and

while advising the injured worker that it was her experience that “we have never authorized

or paid for this”, the Case Worker confirmed discussions that she had with Dr. Marchant, a

specialist in “Occupational Medicine”, and based on these discussions with Dr. Marchant,

the Case Worker would be arranging for an out-of-province neuropsychological assessment

by Dr. Hayes.

-29-

All the while, the injured worker had been referred (by her own personal physician) and

receiving treatment from Dr. Reid in New Brunswick. The numerous physicians’ Workers

Compensation Board report forms refer to the efforts by Dr. Meek to arrange the referral and

ultimate treatment by “a specialist in environmental medicine”.

Initially Dr. Elliot’s name appears on these reports. He practices in Dartmouth, Nova Scotia.

The position of the Respondent is that “at no time was the injured worker encouraged to

believe that these expenses would be covered ... [the injured worker] was never led to believe

that these expenses were to be reimbursed.”

Given that the Workers Compensation Act is remedial in both its scope and nature, and being

guided by the Appeals Division of the Supreme Court of this province MacLeod v. WCB:

a worker therefor should be given compensation benefits if his case can

reasonably be brought within the scope of the legislation; (emphasis

added),

this panel finds favour with the recent approach taken by the Supreme Court of Nova Scotia

in exploring the parameters of Workers Compensation legislation.

In Thompson v. NSWCB at page 4, Mr. Justice Gruchy stated:

Workers’ compensation in too serious a matter to be reduced to semantic

considerations.

In the absence of some firm and unequivocal decision on the issue as to whether these costs

for the out-of-province treatment would not be covered by the Board, coupled with the clear

impression left in the mind of the injured worker that the Board was considering sending her

to Dartmouth, Nova Scotia (presumably with no cost to her), and given the numerous

references to Dr. Reid’s involvement from early in 1999 to August of that year; the Board

-30-

did not apply the legislation in the manner it was intended, as set out in the MacLeod case.

On this basis, the Board committed a manifest error that goes to its jurisdiction.

It is most unfortunate that, for the most part, it was the lack of credentials by Dr. Reid that

has put the injured worker in the position of having to foot the whole bill for her treatment

for the medical services provided by him.

The Board further argues that “Dr. Meek ... relied ... on the recommendations of Dr. Elliot’s

office” in referring the injured worker to Dr. Reid. The implication being therefore it is not

the Board’s responsibility to cover the costs associated with these treatments.

The name, Dr. Elliot, is found in numerous documents (Workers Compensation Board

Reports and Dr. Wedge’s Feb. 18th detailed assessment of the injured worker). In that

assessment there is mention made of Dr. Meek’s referral to “an environmental health

specialist”. Dr. Wedge, further in reports:

She has a referral to Dr. Elliot, who apparently is a specialist in

environmental medicine, working somewhere in Dartmouth, Nova Scotia.

(emphasis added)

It is noteworthy that the Respondent has not taken any issue with the form of treatment that

the injured worker received from Dr. Reid.

The Board’s own observation/conclusion on the important issue of Dr. Meek’s referral to Dr.

Reid has much merit when it states:

It would seem incumbent and even prudent on the Board’s part to actively

scrutinize and question the credentials of Dr. Reid’s referral.

In all of the circumstances the Board failed to properly consider the plight of the injured

worker and the attempt that she, through the efforts of her personal physician, had made to

seek out and obtain treatment for at least the physiological aspects of her injury.

-31-

For the reasons hereinbefore stated, especially those going to errors in jurisdiction by the

Board, the Decision of the Internal Reconsideration Officer is overturned. The Board is

hereby ordered to pay the compensation, as requested in the amount of $5,464.02, to the

injured worker.

COSTS ON THE APPEAL

The injured worker did not seek an Order for her legal costs. A review of the Act indicates

that the legislation does not empower the Appeal Tribunal to award costs except where “an

appeal is frivolous”. Absent any request for an award of costs; and, in particular, in the

absence of statutory authority to award same, the Appeal Tribunal could not and did not

consider the matter other than to make these observations.

Dated this 25th day of August, 2000.

_________________________________ ______________________________

Allen J. MacPhee, Q.C. Nancy FitzgeraldChair of the Appeals Tribunal Tribunal Member

_________________________________Scott DawsonTribunal Member

WORKERS’ COMPENSATION BOARDAPPEAL TRIBUNAL

BETWEEN:

WORKER

APPELLANT

AND:

WORKERS’ COMPENSATION BOARD

RESPONDENT

DECISION #5