Executive Summary: Key Legal and Evidentiary Issues

• Central issue was whether the current version of WCB Policy 04-07 could be applied retroactively to entitle Thomas Flueck to Level 3 Personal Care Allowance (PCA) benefits for periods before December 1, 2013.

• Determining the correct standard of review—correctness for questions of law and reasonableness for mixed fact and law—was essential to the statutory appeal and judicial review.

• The Workers’ Compensation Board (WCB) argued for a prospective-only application of Policy 04-07, while the Estate argued for retroactive application to all decisions made after December 1, 2013, regardless of accident date.

• The Appeals Commission’s interpretation of the policy and its application to Mr. Flueck’s case was found to be correct and reasonable.

• The Court emphasized the purpose of the Workers’ Compensation Act (WCA) to provide appropriate compensation to injured workers.

• The WCB’s statutory appeal and judicial review were dismissed, upholding the Appeals Commission’s decision in favor of Mr. Flueck’s estate.

Background and facts

On August 21, 1983, Thomas Flueck was injured in a workplace accident. As a result, he underwent an amputation at the shoulder, suffered a traumatic brain injury, an aggravation of pre-existing schizophrenia, and faced other psychological and physical issues for the remainder of his life. On October 30, 2017, a representative of Mr. Flueck contacted the Workers’ Compensation Board (WCB) requesting PCA benefits for Mr. Flueck under WCB Policy 04-07 as of August 21, 1983. An occupational therapist assessed Mr. Flueck’s capabilities and, in a report dated December 10, 2017, determined that from the date of the accident to the date of the report, Mr. Flueck required assistance with several items, including zippers, coats, fingernail clipping, laundering clothing, cleaning, transportation, planning and organizing, and financial matters.

On April 9, 2018, and subsequently May 18, 2018, a WCB first-level case manager rendered their decision regarding Mr. Flueck’s entitlement to PCA benefits. Applying the various versions of Policy ADJ-17 and Policy 04-07 that were in place from the date of the accident to the date of the decision, the case manager determined that Mr. Flueck was not entitled to PCA benefits from the date of the accident to September 30, 2002. However, as of October 1, 2002, Mr. Flueck met the criteria of a severely injured worker and was entitled to ongoing Level 3 PCA benefits from that date onwards. On March 18, 2020, Mr. Flueck passed away.

The representative of Mr. Flueck’s estate sought a documentary review by the Dispute and Resolution and Decision Review Body (Review Body) of the case manager’s decision denying Mr. Flueck’s entitlement to Level 3 PCA benefits before October 1, 2002. On March 25, 2022, the Review Body rendered its decision and upheld the case manager's decision. The representative of Mr. Flueck’s estate appealed the Review Body’s decision to the Appeals Commission. On November 8, 2022, the Appeals Commission rendered its decision and reversed the case manager’s decision. Applying the version of the WCB Policy 04-07 that was in effect on the date the case manager rendered their decision (the current version), from the date of the accident, the Appeals Commission determined that Mr. Flueck was entitled to retroactive Level 3 PCA benefits from 1983 to 1985 and 1988 to 2002.

Legal arguments and policy interpretation

The WCB brought both a statutory appeal and judicial review of the Appeals Commission’s decision. The main legal issue was whether the Appeals Commission correctly interpreted and applied Policy 04-07 retroactively. The WCB argued that the policy is explicitly prospective and that a retroactive interpretation and application of Policy 04-07 is incorrect and unsupportable in law. The Estate contended that a proper interpretation of Policy 04-07 means that on or after December 1, 2013, first-level case managers must use the current policy when determining an individual’s entitlement to PCA benefits, regardless of the accident date.

The Court analyzed the applicable standard of review. It found that the interpretation of WCB Policy 04-07 was a question of law subject to correctness review, while the application of the policy to the facts was subject to reasonableness review. The Court referenced the Supreme Court’s decision in Vavilov and subsequent Alberta appellate decisions.

Court’s analysis and outcome

The Court found that Policy 04-07, Part II, states that it is effective December 1, 2013, and applies to all decisions made on or after that date, except when noted otherwise in a specific policy section. The Court determined that, read in its entire context and in its grammatical and ordinary sense harmoniously with the scheme, for the policy to be limited to prospective or future events and not applied to all decisions, it should have been “noted within a specific section(s)” that its application would be prospective. In the absence of such a note, the decision-makers must follow the policy and apply it to all decisions, without limitation, as of December 1, 2013.

The Court also found that this interpretation aligns with the WCA's intent to provide appropriate compensation to injured workers and its emphasis on the “health and well-being of workers.” The Court referenced prior case law, including Schumaker, which supported the application of new policies to decisions made after their effective date, even if the injury occurred earlier. The Court found that Mr. Flueck was never denied PCA benefits under a previous iteration of policy 04-07 and is therefore not attempting to revisit a previous decision of the WCB.

Given these findings, the Court held that the Appeals Commission correctly interpreted and applied Policy 04-07, entitling Mr. Flueck to retroactive Level 3 PCA benefits from 1983 to 1985 and 1988 to 2002. The WCB’s statutory appeal and judicial review were denied. The successful party was the Administrator of the Estate of Thomas Flueck. The exact amount awarded was not specified in the decision. If the parties cannot agree on the costs of this action, they may arrange to address the matter before the Court within 60 days of the Reasons.