Published in: Administrative Law Newsletter - 26.May.16 May 26, 2016

Case Summary: Workers’ Compensation Board’s decision to deny benefits quashed when Board failed to include appropriate specialists on a Medical Review Panel

Administrative law – Decisions of administrative tribunals – Workers Compensation Boards; Workers compensation – Benefits; Judicial review – Delay – Evidence – Procedural requirements and fairness

Gjerde v. Saskatchewan (Workers’ Compensation Board)

The Workers’ Compensation Board (the “Board”) appealed a decision of a chambers judge to the Saskatchewan Court of Appeal, as the chambers judge had quashed the Board’s decision to deny benefits and ordered a new medical review panel (“MRP”) in favour of a worker who sought compensation for a workplace accident. The appeal was ultimately dismissed.

[2016] S.J. No. 100

2016 SKCA 30

Saskatchewan Court of Appeal

March 9, 2016

G.R. Jackson, N.W. Caldwell and J.A. Ryan‑Froslie JJ.A.

The worker was injured in 1987 on the job and received benefits pursuant to the Workers’ Compensation Act (the “Act”) for approximately three months. At that time, an orthopedic surgeon who had been consulted by the worker’s treating physician wrote a letter indicating that the worker should be able to return to work. The Board relied on that opinion when it decided to terminate the worker’s benefits. The worker continued to have chronic pain and was unable to retain lasting employment. Starting in 1998, the worker repeatedly and unsuccessfully sought reinstatement of benefits under the Act. The Board consistently held that the worker had failed to establish his chronic pain was likely related to his workplace injuries.

In 2008, the Board accepted correspondence from the worker’s family physician as a certificate for the purposes of establishing an MRP under the Act. The Board provided the worker with a list of available orthopedic surgeons and neurologists to sit on the panel, and the worker selected, among others, the orthopedic surgeon who had previously provided the opinion in 1987 regarding his condition. That orthopedic surgeon was selected to be on the MRP. The worker says he later contacted the Board to advise he had concerns about that orthopedic surgeon being on the MRP given the history, and given the surgeon’s specialty, as orthopedic surgeons specialize in the skeletal system, not soft tissue injuries. The Board did not agree with his evidence on this point. The worker says that he requested the examination by the MRP be postponed, but eventually agreed to proceed with the process despite his reservations. After he was examined by the MRP, they concluded that he was “physically capable to do anywhere from sedentary to moderate physical duties”. The Board accordingly held that the worker was not entitled to any further benefits under the Act.

The worker applied to the Court of Queen’s Bench 44 months later to quash the Board’s decision on the basis the Board breached its duty of procedural fairness to him by failing to provide a list of specialists in the classes of injuries for which compensation had been claimed and appointing the orthopedic surgeon to the MRP who had previously made an adverse ruling against him. The worker was successful and the chambers judge quashed the decision of the Board.

On appeal, the Board argued that the chambers judge erred by (1) refusing to dismiss the worker’s application on the basis of undue delay; (2) receiving new affidavit evidence at the application; (3) applying the wrong standard of review; and (4) finding the Board had breached its duty of procedural fairness to the worker in preparing the lists from which the medical review panel was chosen and by retaining the orthopedic surgeon who had previously provided an adverse opinion.

First, the Court of Appeal considered the argument with respect to undue delay and held that it could not find that the chambers judge abused her discretion or that her decision was “so plainly wrong as to amount to an injustice and invite intervention on that basis”.

Second, the Court of Appeal considered the admissibility of new affidavits provided on behalf of the worker, which were an affidavit of the worker and an affidavit of a rheumatologist who deposed that orthopedic surgeons and neurologists are not specialists who deal with chronic pain. Because the purpose of the MRP is to provide an impartial evaluation of the medical issues relating to a claim, and because the legislature had specifically provided that physicians who serve on such panels must be specialists in the classes of injuries for which compensation has been claimed, it was necessary to consider whether the specialists in the worker’s case met that legislative requirement and this could only be established or challenged by presenting evidence of which physicians are specialists with respect to the injuries in issue. The rheumatologist’s affidavit was put forward to establish the Board did not include any physicians who were specialists in chronic pain on the list it compiled for the worker’s MRP, and was accordingly admissible.

Third, the Court of Appeal held that though the chambers judge correctly concluded that the Board’s interpretation of its own statute is entitled to deference and that the Board’s interpretation must be reviewed using a reasonableness standard, she did not review the Board’s interpretation of the statute using a reasonableness standard and was accordingly in error.

However, in their own review of the Act, the Court of Appeal held that the chambers judge’s error did not affect the overall correctness of her decision. The Court of Appeal considered the purpose of the Act and the statutory scheme pursuant to which the MRP specialists are empaneled, and concluded that physicians placed on the list from which an MRP specialist is selected must be specialists in the classes of injuries for which compensation is claimed, and the list must include all physicians who practice in the city named in the request for a MRP. As a result, the Board’s view that it had discretionary power to determine who the appropriate specialists are is at odds with a plain reading of the Act.

The Board further argued that the chambers judge did not accord deference to the Board’s decision to place only orthopedic surgeons and neurologists on the list of specialists, and that the chambers judge did not properly interpret what constitutes “specialist” under the Act. The Court of Appeal did not find this argument persuasive and held that based on the Board’s own interpretation, a “specialty” involves a branch of medicine, and though there is not a specialty designation for chronic pain, there are specialists who treat that condition. The Court of Appeal noted that the Board did not provide any reasons or justifications for placing only orthopedic surgeons and neurologists on the list. The Court of Appeal also noted that the Act requires that all physicians who are specialists in the class of injuries for which compensation has been claimed are to be placed on the list. Given that the worker claimed for soft tissue damage and chronic pain, physicians who specialize in those types of injuries should have been included on the list as well.

On this basis, the Court of Appeal held that the Board’s interpretation and application of the Act was not reasonable and upheld the chambers judge’s decision.

This case was digested by JoAnne Barnum of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact her directly at or review her biography at