WCB Drops the Ball In Zarooben Case

By: Joel Fairbrother

Published: 28 February 2022

Zarooben Case

Zarooben v The Workers Compensation Board, 2022 ABCA 50 is a new Alberta Court of Appeal decision which determined that the WCB had improperly weighed medical evidence in denying a claim.

It is a bit uncommon for something like this to be before the ABCA, and it sheds interesting light on WCB’s responsibilities in considering claims.


Below are the pertinent facts summarized by the Alberta Court of Appeal:

  • In 2000, the claimant Mr. Zarooben was assaulted while employed driving a moving van
  • In 2016, Mr. Zazrooben was employed as a truck driver when he slipped and fell 8 feet, and experienced a traumatic brain injury
  • The WCB accepted his claim in 2016 for compensation due to concussion
  • There were some disputes about continued entitlement, but ultimately he received coverage until into 2018
  • In 2018, a WCB case manager determined that Mr. Zarooben’s then current symptoms and difficulties were no longer related to his 2016 accident and that he was no longer entitled to benefits from the WCB
  • In late 2018, the WCB dispute resolution and review body upheld the decision to stop Mr. Zarooben from receiving any further temporary total disability benefits
  • Zarooben appealed that decision to the Alberta Court of Queen’s Bench. The court allowed the appeal and directed the matter be sent back to the WCB for reconsideration

The WCB appealed that decision to the Alberta Court of Appeal.

Analysis / Conclusion

The Alberta Court of Appeal explained the purpose of Workers’ Compensation coverage and the obligations of the Workers Compensation Board as they related to this case as follows:

[32] […] in cases where the relationship between the injury and the compensable accident is not obvious, the board is responsible for gathering additional relevant evidence. The nature of the injury must have a relationship with the compensable accident so it is more likely than not that the work activity caused the injury. If this relationship between the injury and the compensable accident is not obvious, additional information is needed to establish that relationship.

[33] […] when an accident causes a pre-existing condition to deteriorate or become symptomatic to the point where a worker is no longer able to perform all aspects of the job, the board is to allow entitlement based on an aggravation factor. […] A worker is eligible for temporary total disability benefits “when there is medical evidence the work-related injury has resulted in temporary work restrictions which prevent the worker from resuming pre-accident employment or other suitable employment”. Such benefits are payable for as long as the compensable disability lasts.

[34] As indicated, the purpose of the Act is “to provide appropriate compensation to workers who suffer workplace-related injuries and illnesses”. To meet that goal, the Act is to be “given a broad liberal interpretation, which allows compensation to be provided to as many workers in as many circumstances as the legislative scheme will reasonably permit” […]

The ABCA went on to consider the evidence that had been relied on by the WCB in stopping the coverage.  The WCB had relied on medical evidence from a psychiatrist, two neuropsychologists, and a medical consultant.  Generally, this particular medical evidence seemed to support that the injury was not as severe as had previously been assessed and/or that the symptoms were not related to the date of accident injuries. 

There was, however, quite a bit of conflicting and inconsistent medical evidence the WCB had in front of it.  As just a few examples, in mid 2016, Mr. Zarooben’s family doctor advised another doctor that Mr. Zarooben had completely recovered from his head injury and no further treatment was required.  In mid 2017, his doctor reported that Mr. Zarooben suffered from a severe traumatic brain injury and could not do any kind of work or training.  In early 2018, his doctor attributed all of these symptoms to the assault from 2000, but then suspended Mr. Zarooben’s driver’s license due his fall that happened in 2016 and his mental health. 

There was some medical information supporting that Mr. Zarooben continued to have a traumatic brain injury from some of his other medical professionals as well, including a psychiatrist and occupational therapist.

Despite the many conflicts in the medical evidence, the WCB chose not establish a medical panel to consider the medical issues, which is one of the actions the WCB can take.

The ABCA considered WCB’s determination that Mr. Zarooben’s symptoms were not related to his 2016 injury, and found that this was an unreasonable conclusion in the face of all the conflicting medical evidence.  The ABCA sent the matter back to the WCB, with directions to gather further evidence and establish a medical panel to reconsider and reconcile all of the conflicting evidence, as follows:

[65] We agree with the chambers judge that the commission’s decision of July 24, 2019 fails to fall within the range of possible, acceptable outcomes which are defensible with respect to the facts and law. The commission’s reasons are untenable in light of the relevant facts and legal constraints that bear on it. We agree the result is not logical or reasonable. There is insufficient evidence of Mr Zarooben’s recovery […]. The commission did not resolve contradictions in the medical reports, […] and it appears that Mr Zarooben’s general bad behaviour seriously and negatively coloured the commission’s opinion as to the ongoing causation of his injuries.

[66] We refer the matter back to the commission for reconsideration of whether Mr Zarooben is entitled to temporary total disability benefits after July 27, 2018. The commission should continue to gather additional relevant evidence to establish the relationship of the medical information to the accident of January 15, 2016, and should request that a medical panel be established to address the medical issue of continuing causation and the difference of medical opinions in evaluation of the claim compensation.

My Take

This case does not change WCB’s role and requirements.  However, it is interesting to me because this was a case where the WCB does seem to have overstepped their discretion a bit.

For my part I will say that in my experience, non-government insurance companies which provide coverage for Short-Term Disability and Long-Term Disability tend to try to push people off of benefits sooner than WCB does.  In my experience, WCB usually seems to air on the side of fairness and is not as critical of sufficiency of medical evidence.

However, it should not be forgotten that WCB is still a disability insurance scheme, and insurance companies will generally try to deny or stop the benefits sooner or later.  This is the case for several reasons:

  • Disability insurance companies do get some false or exaggerated claims of injury. There are many legitimate claims of course, but when your service is handing out money, there are going to be people trying to take advantage of that.  This makes insurance companies (including WCB) extremely suspicious unless they have strong medical evidence
  • Obviously, they want to make money (or spend less), and the only way for them to do that is to deny claims

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