IN THE SUPREME COURT OF BRITISH COLUMBIA
Lavigne v. British Columbia (Workers Compensation Review Board),
2008 BCSC 1107
Registry: Salmon Arm
In the Matter of
The Judicial Review Procedure Act, R.S.B.C. 1996 c. 241
In the Matter of
John Steeves WCAT Decision #2007 00480 – February 8, 2007
WCAT Decision #2003 – 03236-RB – October 28, 2003
WCB, Gail Wills
WCB Review Board directed by Attorney General
Before: The Honourable Mr. Justice Truscott
Counsel for the Attorney General:
(February 15, 2008)
Date and Place of Trial/Hearing:
August 30, 2007
February 15 and April 11, 2008
New Westminster B.C.
 The petitioner Sherry Lavigne applies for judicial review of decisions by the Workers’ Compensation Appeal Tribunal (“WCAT”) of October 28, 2003 and February 8, 2007, that rejected her appeal of a decision of the Workers’ Compensation Board (“WCB”) of February 4, 2002 setting her long term wage rate compensation entitlement.
 Ms. Lavigne also seeks judicial review against the legislative amendment to the Workers Compensation Act, R.S.B.C. 1996 c. 492, (“the Act”) effective March 3, 2003, which eliminated the WCB Review Board and replaced it by WCAT, a separate appeal tribunal.
 Counsel for the Attorney General for British Columbia appeared to speak to the issue about the legislative amendments.
 Judicial review is also sought against the WCB itself for what appears to be the original decision of the WCB of October 31, 2000 on the petitioner’s long term wage rate.
 Finally, relief is also sought against Gail Wills, a principal of Quesnel Traffic Control and First Aid Ltd. (“Quesnel Traffic Control”), a company for which Ms. Lavigne was working at the time of her injury on September 8, 2000.
 As no relief can be sought against Ms. Wills by way of judicial review, when she made no decision covered by the Judicial Review Procedure Act, R.S.B.C. 1996 c. 241, the petition is dismissed against her.
 On September 8, 2000, Ms. Lavigne was injured while working for Quesnel Traffic Control on a highway construction project near Wells, B.C. The vehicle driven by Ms. Lavigne was struck by a moose causing the vehicle to roll over and injure her.
 On her formal application for compensation from WCB Ms. Lavigne indicated that her occupation was “First Aid/Flag” and in her additional information advised of her flagging duties that day without any reference to first aid duties.
 On October 4, 2000 her employer, Quesnel Traffic Control, completed a form for ICBC giving a job title for Ms. Lavigne of “Flag Person”, and describing her duties as “Traffic Control/First Aid Attendant on last job”, with earnings of $20.90 per hour.
 A letter from Quesnel Traffic Control of the same date addressed to WCB said in part:
The last time I talked to her, she said she was working for Gable Construction now, as first aid. They informed me that they were hiring her for their next job in Cache Creek (probably anytime between now and a couple of weeks).
 On October 20, 2000 Ms. Wills on behalf of Quesnel Traffic Control in an employer’s report of injury for WCB, described Ms. Lavigne as a “Flag Person”.
 A WCB initial wage rate decision and explanation was issued on October 27, 2000 giving Ms. Lavigne an initial wage rate compensation of $646.06 per week based on three months earnings of $8,421.82, effective September 9, 2000.
 On October 31, 2000, WCB issued a long term (eight week) rate decision and explanation giving Ms. Lavigne a wage rate compensation of $266.75 per week based on one year’s earnings of $13,909.09.
 On November 1, 2000 the WCB issued a letter to Ms. Lavigne explaining that the long term wage rate is generally based on earnings in the one year prior to the date of injury. She was also advised that if she did not agree that the figure was an accurate representation of her normal average annual earnings, she should provide her three or five year earnings data.
 This letter and the October 31, 2000 wage rate decision were apparently never received by Ms. Lavigne until at least February, 2002.
 On June 22, 2001 WCB issued a new long term (eight week) rate explanation increasing the weekly amount to $310.64, based on additional information on Ms. Lavigne’s one year income. Again Ms. Lavigne does not appear to have received this notification.
 A disability awards officer approved this long term wage rate decision.
 On February 4, 2002 the WCB wrote Ms. Lavigne and informed her that the long term wage rate would be $292.92 per week.
 It is that decision that Ms. Lavigne immediately appealed and in her notice of appeal to the WCB Review Board she said:
At the time of my accident I was being paid $26.90 per hour. I had just invested in a van and a complete Level III first aid package so that I could accept a contract for a mobile first aid station.
 Ms. Lavigne then hired a lawyer.
 On October 30, 2002 her counsel wrote WCB taking the position that Ms. Lavigne had experienced a significant change in her circumstances by the time of her injuries and she was entitled to a long term wage rate at her date of injury earnings and no worse than her average earnings in the three month period prior to the accident. He declined to provide earnings information for the previous three years as had been requested by WCB.
 On November 28, 2002, a case manager of WCB wrote her counsel and pointed out that Ms. Lavigne had indicated that she had changed her employment pattern by taking courses and purchasing equipment to become a self-employed first aid attendant, and requested her three year’s earnings and confirmation of her change in occupation, such as purchase of equipment, copy of her Level III certificate and potential for long term contracts, in order to complete the review.
 On December 2, 2002 her counsel wrote the WCB Review Board enclosing Part 2 of Ms. Lavigne’s notice of appeal seeking a correction in the wage rate, and in the section “Tell us how you would like your appeal considered”, left in place the pre-printed words, “I do not need an oral hearing. I am sending all new information and submissions with this form.”
 Her counsel again submitted in his letter that Ms. Lavigne had undergone a significant change in her employment beginning in July 2000 when she began work as a first aid attendant for Gable Construction and in August 2000 when she was offered the job and in reliance on getting full time permanent work bought a van and all of the equipment she needed. He submitted she was entitled to a wage rate commensurate with her actual earnings or alternatively in accordance with her average earnings in the three month period prior to the accident.
 He also included letters directly from Ms. Lavigne to the Review Board. One letter of October 2, 2002 outlined what she had done by way of career change in the year prior to the accident. She indicated in that letter that:
(a) In December 1999 she had enrolled and completed the Level III first aid program.
(b) In January 2000 she accepted her first job as a Level III on a one month contract with GBA Logging.
(c) In February 2000 she returned home to be with her husband.
(d) In March 2000 she was hired by Quesnel Traffic Control in response to an ad for a Level III.
(e) Gail Wills of Quesnel Traffic Control could not provide her with first aid work so asked her to take a flagging job for BC Tel in the area, which she did for three-and-a-half weeks.
(f) In July 2000 Ms. Wills asked her to take a first aid job in Barkerville for Gable Construction, which she did.
(g) In August 2000 while on the job for Gable Construction, John O’Dare, boss, offered a position with his company as their first aid attendant.
(h) She bought a van and all of the equipment needed to be a mobile first aid station in anticipation of her new job due to start immediately following the Barkerville job.
 In her subsequent letter of October 4, 2002 to the Review Board, Ms. Lavigne said again that she was to follow Gable Construction to the next job which was in Cache Creek. That was the whole reason for purchasing the van and a mobile treatment station, according to her.
 On December 24, 2002 Ms. Wills of Quesnel Traffic Control faxed a letter to WCB saying that the job Ms. Lavigne was on at the time of her accident was a fair wage job that did not exist anymore and first aid wages were $20 plus per hour and $4 benefits but “that was the only job I required her to be a first aider, in her employment.”
 Ms. Lavigne’s counsel wrote the Review Board on January 29, 2003 and March 12, 2003 enquiring when the Board might issue their review decision.
 On March 24, 2003 WCAT wrote her counsel stating that effective March 3, 2003 the Review Board no longer existed due to legislative changes and the new external appeal tribunal, WCAT, would consider the appeals with no further avenue of appeal thereafter. The letter said the appeals would be considered by a one person panel without an oral hearing.
 Her counsel wrote back the following day, March 25, 2003, and took the position that the Review Board was seized of the appeal and required to complete its findings. In his view if WCAT took jurisdiction it would deny Ms. Lavigne her absolute right to appeal the Review Board findings and her rights to appeal could not be eliminated by this change of tribunals.
 On April 24, 2003, her counsel wrote the Review Board and confirmed the appeal would proceed by Read and Review.
 In a letter of May 6, 2003 to her counsel WCAT confirmed the appeal would be considered by WCAT as the Review Board no longer existed.
 All of the above information was in the WCAT Certified Report and available for consideration by WCAT.
 On October 28, 2003, a vice-chair of WCAT, Mr. Boal, gave his decision on the appeal. In that written decision he noted that Ms. Lavigne had not requested an oral hearing and he agreed that an oral hearing was not necessary to fully and fairly adjudicate the matter.
 In his decision vice chair Boal reviewed the background and submissions to that date. One of the pieces of information he reviewed was a log entry of a case manager of November 20, 2002 of a conversation she said she had with an officer of the worker’s pre-injury employer. The log entry said as follows:
called John O’Dair at Gable Construction 374-0371
John remembered Sherry from two years ago. He said he did not make her a job offer with Gable Construction. John said he may have told her he could refer her to the traffic control contractor that successfully bid on the next contract. Gable Construction hires traffic control contractors for each contract. He said they are responsible for the first aid attendants. First aid attendants are not hired directly by Gable Construction.
John recalled the contract out on the Barkerville highway. He said they were a bit rushed at the end because they were chased by snow. It was their last contract of the season. He said Gable Construction usually runs early spring (depends on the road bands Mar-Jun) to October/November. He said the workers are in layoff between seasons. The traffic control operators may get some work with other contractors like BC Hydro. Sherry would not have been working on a construction site for Gable after October/November even if she was hired by the traffic control contractors. Its seasonal work.
 In vice chair Boal’s decision he recited this leg entry but identified John O’Dair only as “Mr. J” and Gable Construction only as “the pre-injury employer.”
 This log entry, part of the WCB files, presumably was disclosed to Ms. Lavigne’s counsel prior to Mr. Boal’s decision. WCB was disclosing all of their file materials and updating them from time to time. Their records indicate that Ms. Lavigne had first requested disclosure on January 23, 2000 and had received a full copy of the file as it then was on March 27, 2002, both to her and to her counsel. Again on February 13, 2002 and March 20, 2002 copies of further documents were forwarded. Another disclosure was made on June 14, 2002 of updated documents and again on September 10, 2002.
 The next disclosure updating documents following September 10, 2002 was not until June 27, 2003. It is in the disclosure of June 27, 2003 to her counsel that the log note of November 20, 2002 would have been provided. June 27, 2003 was after counsel and Ms. Lavigne had made their submissions to the Review Board that had been passed on to WCAT but before vice chair Boal’s decision of October 28, 2003.
 In his reasons vice chair Boal pointed out that the initial reports were that Ms. Lavigne had been working as a flag person or first aid/flag person and from her own narration at the time it appeared her main job was as a flag person.
 With respect to Ms. Lavigne’s contention that she had been hired in August 2000 by the boss as a first aid attendant, the “boss”, vice chair Boal said had denied that he had offered her a job as a first aid attendant as per the log entry of November 20, 2002. Vice chair Boal also said there was no evidence of a written contract or letter of a job offer from the employer and it was general knowledge that the road construction industry was subject to layoffs and uncertainties.
 Vice chair Boal said that he was not convinced there was a fixed change in Ms. Lavigne’s circumstances given the evidence on file and even if there was a fixed change there was insufficient evidence on file that this would have continued in the future.
 He was not satisfied her earnings in the three month period prior to the accident were the best reflection of her long term loss as there was no relatively fixed change in her earning pattern that was deemed likely to continue into the future and as she had declined to submit three year and five year earnings he found her one year earnings to best reflect her long term loss.
 Vice chair Boal denied the appeal and confirmed the February 4, 2002 decision on her long term wage rate.
 On December 16, 2003 Ms. Lavigne’s counsel applied for reconsideration of the WCAT decision of October 28, 2003 and enclosed Ms. Lavigne’s submissions. One of those submissions was a request to be informed who “Mr. J” was as in his decision vice chair Boal had not identified the employer other than through the initial Mr. “J”. In this letter Ms. Lavigne said she had absolutely no idea who the person was as Ms. Wills of Quesnel Traffic Control was her pre-injury employer and not anyone else.
 In his own letter counsel submitted that vice chair Boal had made a finding that Ms. Lavigne was not credible on the basis of double hearsay notations in the log file, without having given her an opportunity to cross examine that individual (presumably Mr. J).
 He noted that Ms. Lavigne had not requested an oral hearing but submitted that she was entitled to an oral hearing where there was a conflict in the evidence, regardless of her lack of request, and it was an error of law going to jurisdiction and a breach of the rules of natural justice not to conduct an oral hearing.
 In her accompanying submission Ms. Lavigne took issue with the finding that she was employed as a flag person/first aid attendant at the time. She said that in fact she was hired and sent to Barkerville as a first aid attendant and only after arriving on the job did she offer to act as a flag person only to relieve the boredom of sitting around as the first aid attendant.
 She also took issue with the statement that her work was seasonal as she said Level IIIs are required on most job sites at all times of year.
 On January 8, 2004 counsel at WCAT wrote Ms. Lavigne explaining that there was no right of appeal from a WCAT decision and there were only two situations where WCAT had authority to reconsider its previous decision. One situation was on the basis of new evidence under s. 256 of the Act. The other situation was where there had been an error of law going to jurisdiction, including a breach of natural justice, including a situation where she was not given an opportunity to be heard before a decision was made.
 Ms. Lavigne was told that if she was relying on new evidence she should explain why it was not included in her original submission.
 Counsel at WCAT informed Ms. Lavigne then that Mr. J was John O’Dare of Gable Construction.
 At that point in time counsel was not acting for Ms. Lavigne, but shortly thereafter he was retained again and in reference to the WCAT letter of January 8, 2004, he wrote on February 20, 2004 confirming that he was relying on the rules of natural justice.
 On February 25, 2004 counsel at WCAT told counsel that his letter would be processed as an application for reconsideration of the WCAT decision of vice chair Boal.
 On September 10, 2004, not having heard anything further from WCAT on the reconsideration, Ms. Lavigne’s counsel wrote counsel at WCAT asking when she might expect a decision and asking counsel to refer the letter to the panel considering her request.
 This letter of counsel also enclosed a letter stated to be from John O’Dare dated May 26, 2004 which he said Ms. Lavigne had recently obtained. He said he was enclosing a copy of that letter for the panel’s consideration.
 Again counsel referred to conflicting findings regarding Ms. Lavigne’s employment and submitted that she was entitled to an oral hearing and the opportunity to answer the panel’s questions in that regard. He submitted that WCAT should grant Ms. Lavigne an oral hearing or in the alternative allow her appeal and set the long term wage rate in accordance with previous submissions.
 The enclosed typed letter over the typed name of Mr. O’Dare, but not personally signed by him, said the following:
Ms Lavigne made an app’t to see me at my office in order to bring to my attention the document used by WCAT to decide an issue with regards to Ms Lavigne’s wage rate. The questions that were asked were not appropriate for the industry. The work with our company is seasonal and promises are never made.
However, Sherry did prepare herself to fill a position we did require. Further, Sherry’s preparation would have ensured her employment within the ‘industry’, whether with us or some other contractor.
Noted in the documents provided by Ms Lavigne, I am listed as Sherry’s pre-injury employer, this is not accurate, I employed Quesnel Traffic Control and First Aid (Gail Wills) to fill the positions of flag people and first aid attendant.
During the time Ms Lavigne worked with us on that project I came to know her and did indeed offer her a job with our company to provide services including first aid, flag persons and pilot car/ambulance. The way Ms Lavigne had set herself up in order to do this job together with the fact that she made it known to me that she was willing to travel with the crew made her a rare commodity to the construction field.
Although I had made the offer of a job to her prior to the accident in September 2000 I cannot say definitely what would have or have not happened with regards to her job expectations. However as I stated earlier, the way she had set herself up and her willingness to travel I feel certain she would have had very little trouble in securing full time employment.
I hope that this clarifies my position with regards to Ms Lavigne and clears up any confusion as to what I did or did not say.
 On September 20, 2004, WCAT replied to Ms. Lavigne’s counsel and said that there was a large volume of undecided appeals and it might be some time before it would be in a position to proceed with Ms. Lavigne’s application for reconsideration. WCAT said it would notify when it was in a position to proceed.
 A further letter from WCAT of June 27, 2005 to counsel stated that he was unlikely to hear further from it before 2006.
 In an undated letter in 2005 to the Disability Department of WCB, Ms. Lavigne set out a few facts that she asked to be taken into account when deciding her future pension. In this letter she said that when the accident happened she was in the process of starting her own first aid company and Mr. O’Dare had given her her first contract due to begin upon completion of the Barkerville/Wells job. She said she had already purchased the van and all necessary equipment for a mobile treatment centre and the contract she had with Mr. O’Dare was to provide him with all first aid requirements, ambulance/treatment centre, pilot car and a team of flaggers. She said she had her team ready to go.
 On September 16, 2005, WCAT wrote counsel asking for any further evidence or argument in support of his application for reconsideration, on or before October 7, 2005.
 On October 7, 2005 counsel wrote WCAT asking that it consider his letter as well as previous submissions. His letter submitted that vice chair Boal should have at least offered Ms. Lavigne the opportunity to file further submissions where there was a dispute on the facts. He asked for a cancellation of the previous decision and a provision to Ms. Lavigne of an oral hearing at which all adverse witnesses would be called for cross-examination.
 All of the above information was in the WCAT Certified Record and available on the reconsideration by vice chair Steeves.
 On February 8, 2007, vice chair Steeves gave his decision on Ms. Lavigne’s application for reconsideration of the WCAT decision of October 28, 2003.
 In his decision vice chair Steeves defined the issue as whether there was a patently unreasonable error of law including a breach of the rules of natural justice in the previous WCAT decision. He said that the question of whether a decision involves an error of law going to jurisdiction generally requires application of the “patently unreasonable” standard of review and on the natural justice issue the question was whether the procedures followed by WCAT were fair.
 Vice chair Steeves set out the information from the claims file he considered relevant to the issue of whether Ms. Lavigne’s work was primarily as a flag person or a first aid person. As part of that information he recited the substance of the log note of November 20, 2002 of the telephone interview with Mr. J.
 Vice chair Steeves recited the history of Ms. Lavigne’s application and appeals to WCB and pointed out that originally on the appeal the notice of appeal had said “I do not need an oral hearing. I am sending all new information and submissions with this form”, and subsequently her counsel had confirmed the appeal was to proceed by Read and Review.
 Vice chair Steeves noted that in the October 28, 2003 decision WCAT vice chair Boal had commented that the worker had not requested an oral hearing and he had agreed an oral hearing was not necessary to fully and fairly adjudicate the appeal.
 Vice chair Steeves also summarized the reasoning of vice chair Boal and included the denial by the employer that he offered her a job as a first aid attendant and they did not directly hire first aid attendants.
 On the application for reconsideration vice chair Steeves made reference to Ms. Lavigne’s counsel’s letter of September 10, 2004 where he had raised the issue of the previous panel’s denial of an oral hearing and had said credibility was an issue.
 Vice chair Steeves recognized that Ms. Lavigne was also challenging the previous WCAT decision because she did not know who “Mr. J” was.
 In his reasons vice chair Steeves said the duty to be fair does not necessarily mean an oral hearing is required, and he referred to s. 246 of the Act giving the appeal tribunal the discretion to conduct hearings in writing or orally, and also made reference to MRPP (Manual of Rules of Practice and Procedure) item 8.70 March 3, 2003 where it was said, “A request for an oral hearing will normally be granted where the appeal or application involves a significant issue of credibility.”
 Vice chair Steeves said that despite the broad discretion given to WCAT on the manner of hearing appeals:
Some situations will require an oral hearing in order to properly apply the right to be heard. When these situations are not recognized there can be reviewable errors on the basis of, for example, a breach of the rules of natural justice. Any deference from reviewing authorities should not be expected. The duty to comply with the rules of natural justice (including the application of the right to be heard) is eminently variable and its content is to be decided in the specific context of each case.
 Vice chair Steeves stated the question was whether the circumstances before the previous panel required an oral hearing. He pointed out that prior to the first hearing Ms. Lavigne had said she was going to proceed by Read and Review and it was only after her appeal was denied that she requested an oral hearing.
 Vice chair Steeves said this:
It is true that there is something of a dispute on the facts in this case. That is the worker says she was employed as a first aid attendant and the employer says that she was employed as a flag person. This issue has been in dispute from the beginning of the worker’s claim and it was an issue when the worker told the Review Board that an oral hearing was not necessary.
It has also not been demonstrated what new evidence would be presented at an oral hearing about this dispute. Indeed the general thrust of the worker’s submissions is that an oral hearing is necessary because there is a dispute, not because there is evidence that can only be presented at an oral hearing. It is true that oral hearings are generally used for determining issues of credibility, but I note that item 8.70 of the MRPP states that there may be an entitlement to an oral hearing if there are ‘significant issues of credibility’. This does not mean that all disputes over facts require an oral hearing. Here the worker has explained on more than one occasion, and in considerable detail, her version of the facts and these were available to the previous panel. I cannot find that an oral hearing is necessary in these circumstances.
 He concluded that there was no patently unreasonable error demonstrated in the previous WCAT decision and it had not been explained what new evidence would be generated by an oral hearing and an oral hearing was not available simply to re-hear a factual dispute.
 Ms. Lavigne’s application for reconsideration was denied.
 Ms. Lavigne then moved on with her petition for judicial review filed May 2, 2007.
 On February 11, 2008, during this judicial review another vice chair of WCAT, Ms. Yeager, gave a decision on an appeal by Ms. Lavigne of four review decisions dealing with her permanent partial disability and her pension entitlement.
 Vice chair Yeager observed that Ms. Lavigne’s permanent disability occurred prior to changes to the Act that came into effect on June 30, 2002 and therefore her review entitlement was to be determined under the Act as it read prior to that date. One of the issues under appeal was whether the wage rate used for her pension purposes was correct.
 Vice chair Yaeger reviewed some of the same initial evidence concerning Ms. Lavigne’s status as the other WCAT decisions had reviewed, including the ICBC form completed by Ms. Wills on October 4, 2000, the letter of October 4, 2000 from Ms. Wills of Quesnel Traffic Control to WCB and an apparent contact by her with WCB on October 5, 2000 advising that Ms. Lavigne was also the first aid person on the injury job.
 Vice chair Yaeger also referred to the log note of November 20, 2002 where a board officer had spoken to the general contractor who denied making Ms. Lavigne a job offer.
 Vice chair Yaeger referred to the evidence Ms. Lavigne gave on the oral hearing before her which, on my reading of her reasons, reflected what Ms. Lavigne had been saying throughout in her submissions to WCB.
 In dealing with policy No. 67.20 of the Rehabilitation Services and Claims Manual (“RSCM”), that directed that generally the eight week rate would be utilized for the pension, vice chair Yaeger said this:
I find sufficient evidence to support a conclusion the worker’s wage rate for pension purposes should vary from that of the eight-week rate established on her claim.
I accept the evidence provided by the worker to the Board, and elaborated on in some detail at the oral hearing, that she was in a period of transition in 1999 and 2000. Some of this evidence, such as the worker’s prior job history, and the letter of May 2004 from the general contractor, were not available to the Board at the time the long-term wage rate was established, nor was it available to the WCAT vice chair who confirmed the wage rate in the 2003 decision.
In particular, I note the worker’s first job in 2000 was as a first aid attendant in a logging camp. The letter of May 2004 from the general contractor is persuasive, as it confirms the worker’s account of purchasing a van and first aid equipment to establish herself as first aid provider. He also confirmed the worker’s account that he offered her a contract to provide flaggers and first aid and pilot car on jobsites in the future.
The worker’s earning pattern in the one-year period prior to her injury was also negatively affected by the illness of a family member, which required her to take time off work, and obtain employment in town rather than elsewhere in British Columbia.
I am satisfied that the worker was in the process of establishing herself as a first aid attendant to road and highway construction contractors at the time of her injury, and that this was a change in her employment that was likely to continue. I am also satisfied that she would have been steadily employed, given the comments of the general contractor in the May 2004 letter. The wage rate used for pension purposes, based on her one-year pre-injury earnings, was therefore not an accurate reflection of the worker’s loss due to her injury.
 Vice chair Yaeger did not concur with Ms. Lavigne’s argument that she should receive a wage rate based on $20 an hour but accepted statistical data for full time first aid workers in the interior of the province and left it to the WCB to do calculations and adjustments to Ms. Lavigne’s permanent partial disability award on that basis.
Applicable Legislative Provisions
Workers’ Compensation Act – R.S.B.C. 1996 c. 492
33(1) The average earnings and earning capacity of a worker must be determined with reference to the average earnings and earning capacity at the time of the injury, and may be calculated on the daily, weekly or monthly wages or other regular remuneration which the worker was receiving at the time of the injury, or on the average yearly earnings of the worker for one or more years prior to the injury, or on the probable yearly earning capacity of the worker at the time of the injury, as may appear to the board best to represent the actual loss of earnings suffered by the worker by reason of the injury, but not so as in any case to exceed the maximum wage rate, except that where, owing to the shortness of time during which the worker was in the employment of his or her employer, or in any employment, or the casual nature of his or her employment, or the terms of it, it is inequitable to compute average earnings in the manner described in this subsection, regard may be had to the average daily, weekly or monthly amount which, as shown by the records of the board, was being earned during the one or more years or other period previous to the injury by a person in the same or similar grade or class of employment.
232 (1) The Workers' Compensation Appeal Tribunal is established.
245.1 Sections 1, 11, 13 to 15, 28 to 32, 35 (1) to (3), 37, 38, 42, 44, 46.3, 48, 49, 52, 55 to 58, 60 (a) and (b) and 61 of the Administrative Tribunals Act apply to the appeal tribunal.
254 The appeal tribunal has exclusive jurisdiction to inquire into, hear and determine all those matters and questions of fact, law and discretion arising or required to be determined under this Part and to make any order permitted to be made, including the following:
(a) all appeals from review officers' decisions as permitted under section 239;
(b) all appeals from Board decisions or orders as permitted under section 240;
(c) all matters that the appeal tribunal is requested to determine under section 257;
(d) all other matters for which the Lieutenant Governor in Council by regulation permits an appeal to the appeal tribunal under this Part.
255 (1) Any decision or action of the chair or the appeal tribunal under this Part is final and conclusive and is not open to question or review in any court.
(2) Proceedings by or before the chair or appeal tribunal under this Part must not
(a) be restrained by injunction, prohibition or other process or proceeding in any court, or
(b) be removed by certiorari or otherwise into any court.
(3) The Board must comply with a final decision of the appeal tribunal made in an appeal under this Part.
(4) A party in whose favour the appeal tribunal makes a final decision, or a person designated in the final decision, may file a certified copy of the final decision with the Supreme Court.
(5) A final decision filed under subsection (4) has the same force and effect, and all proceedings may be taken on it, as if it were a judgment of the Supreme Court.
256 (1) This section applies to a decision in
(a) a completed appeal by the appeal tribunal under this Part or under Part 2 of the Workers Compensation Amendment Act (No. 2), 2002, and
(b) 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 receipt of 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.
Rehabilitation Services and Claims Manual
Whether payable to disabled workers or dependants of deceased workers, compensation is normally based on the worker's "average earnings". Occasionally it is based wholly or partly on fixed amounts set out in the Act which are subject to Consumer Price Index adjustments.
#65.00 AVERAGE EARNINGS
Section 33(1) of the Act provides in part as follows:
The average earnings and earning capacity of a worker must be determined with reference to the average earnings and earning capacity at the time of the injury, and may be calculated on the daily, weekly or monthly wages or other regular remuneration which the worker was receiving at the time of the injury, or on the average yearly earnings of the worker for one or more years prior to the injury, or on the probable yearly earning capacity of the worker at the time of the injury, as may appear to the board best to represent the actual loss of earnings suffered by the worker by reason of the injury, but not so as in any case to exceed the maximum wage rate, ...
This section provides for various alternative methods of calculating average earnings, It obliges the Board to select for each claim the method which most accurately represents the workers actual loss of earnings by reason of the injury. This does not mean that Claims Adjudicators have complete freedom of choice in respect of each individual claim. In addition to considering the circumstances of each individual claim, the Board must ensure that the application of Section 33 is consistent between different claims. This requires that the Board lay down a framework of principles which Claims Adjudicators are required to follow. However, within that framework, the Claims Adjudicator retains the basic discretion granted by Section 33(1) to calculate a particular worker's average earnings in accordance with the method that most accurately reflects the loss.
There will be situations where the framework laid down by the Board, when applied to an individual case, will not meet the principles of, or the intent of, Section 33(1). Therefore the discretion allowed under Section 33(1) of the Act may require that the Adjudicator exercise judgment in calculating average earnings that would "... appear to the board best to represent the actual loss of earnings suffered by the worker by reason of the injury, but not so as in any case to exceed the maximum wage rate, ..." The Adjudicator will not, however, interpret "best" to mean the highest rate possible, but rather to select the rate which most closely reflects the actual loss incurred.
The general provisions of Section 33(1) are modified in respect of particular situations by other provisions of the Act.
Set out below is the framework of principles adopted by the Board in its application of Section 33(1), together with other relevant statutory provisions.
#66.00 WAGE-LOSS RATES ON NEW CLAIMS
Except in the cases set out in #66.10-34, wage-loss payments made at the outset of a claim are based on the worker's rate of pay at the date of injury up to the maximum wage rate permitted by the Act. (1) Compensation based on this rate will normally continue until the end of the worker's temporary disability or the 8-week rate review, (2) whichever comes first.
Irrespective of how wages are paid by the employer, they are converted by the Board to a weekly equivalent. After conversion to a weekly equivalent, a daily wage rate is calculated by dividing the weekly earnings rate by the number of days worked in the week. The daily compensation rate is 75% of this figure.
#67.20 - 8-Week Rate Review
An 8-week rate review is made where wage-loss payments based on the worker's rate of pay at the date of injury have continued for eight weeks. This review consists of an enquiry and determination of what earnings rate best represents the long-term earnings loss suffered by the worker by reason of the injury.
After a claim has lasted five weeks, the Claims Adjudicator considers whether it is likely to last for eight weeks and, if the Adjudicator has not done so already, sets in motion any enquiries necessary for a possible 8-week rate review.
Where a permanent disability is anticipated, the Claims Adjudicator will consult with the Disability Awards Officer or Adjudicator in Disability Awards at the time of the 8-week rate review in order to provide consistency between the rate selection for wage-loss benefits and that set for Disability Awards purposes. The appropriate form recording the conclusion will be placed on the claim file.
Circumstances in an individual claim may require the selection of two different rates and where this occurs, the reasons are clearly recorded on the claim file. In cases of permanent total disability the wage rate must always be the same as the pension.
As part of the Claims Adjudicator's enquiries, information will be obtained as to the worker's long-term earnings prior to the injury. Normally, earnings in the one-year period prior to the injury are obtained and used to reflect the worker's long-term wage loss and the pension rate. In some instances, however, the three-month figure prior to the injury may be used. Its use, however, is generally limited to those situations where there is a relatively fixed change in the worker's earning pattern which is deemed likely to continue into the future. …
The Claims Adjudicator will also consider the probability of the worker continuing in the injury occupation. For this purpose, the Adjudicator will contact the employer to enquire whether the worker could reasonably have been expected to continue in the job. The Adjudicator will also question the worker as to future intentions with regard to this job and examine the previous employment history. Any difference of opinion between the worker and employer must be investigated and the Adjudicator must then decide whether the continued employment of the claimant was probable.
Having completed the necessary enquiries, the Claims Adjudicator will determine the earnings rate of the worker which best represents the long-term loss of earnings. Where this decision involves a change in the amount of compensation payable, the change will take effect at the beginning of the week following the first eight weeks payment of wage-loss benefits.
#68.00 PERMANENT DISABILITY PENSIONS
Permanent disability pensions are normally based on the earnings rate established at the point when long-term earnings are reviewed for wage-loss purposes. This, in most cases, means the rate resulting from the 8-week rate review; however, a different rate can be used if there are valid reasons for this.
Workers’ Compensation Amendment Act (No. 2) 2002, 2002 S.B.C. c. 66
Part 2 – Transitional Provisions
34 - In this Part:
“transition date” means the date section 232(1) of the Act, as enacted by the amending Act, comes into force.
Review board proceedings
38(1) Subject to subsection (3), all proceedings pending before the review board on the transition date are continued and must be completed as proceedings pending before the appeal tribunal except that section 253(4) of the Act, as enacted by the amending Act, does not apply to those proceedings.
(3) If, in a proceeding pending before the review board on the transition date, the review board has
(a) completed an oral hearing, or
(b) received final written submissions and begun its deliberations,
the review board must continue and complete those proceedings, acting with the same power and authority that the review board had under the Act before the provisions of the Act granting that power and authority were repealed by the amending Act.
Administrative Tribunals Act, S.B.C. 2004, c. 45
“tribunal” means a tribunal to which some or all of the provisions of this Act are made applicable under the tribunals enabling Act.
58 (1) If the tribunal's enabling Act contains a privative clause, relative to the courts the tribunal must be considered to be an expert tribunal in relation to all matters over which it has exclusive jurisdiction.
(2) In a judicial review proceeding relating to expert tribunals under subsection (1)
(a) a finding of fact or law or an exercise of discretion by the tribunal in respect of a matter over which it has exclusive jurisdiction under a privative clause must not be interfered with unless it is patently unreasonable,
(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, and
(c) for all matters other than those identified in paragraphs (a) and (b), the standard of review to be applied to the tribunal's decision is correctness.
(3) For the purposes of subsection (2) (a), a discretionary decision is patently unreasonable if the discretion
(a) is exercised arbitrarily or in bad faith,
(b) is exercised for an improper purpose,
(c) is based entirely or predominantly on irrelevant factors, or
(d) fails to take statutory requirements into account.
Standard of Review
 WCAT has a privative clause by virtue of s. 254 of the Act and s. 58 of the Administrative Tribunals Act (“ATA”) is applicable and provides that WCAT must be considered an expert tribunal in relation to all matters over which it has exclusive jurisdiction.
 Section 58(2)(a) applies a standard of patent unreasonableness to a finding of fact or law or an exercise of discretion by WCAT, in respect of a matter over which it has exclusive jurisdiction under a privative clause.
 WCAT has exclusive jurisdiction over findings of fact or law or the exercise of discretion as s. 254 of the Act provides.
 Accordingly, if the wording of s. 58(2)(a) of the ATA is to apply then the standard of review of the WCAT decision of October 28, 2003 is patent unreasonableness where findings of fact or law or the exercise of discretion are involved.
 I recognize that the Supreme Court of Canada in Dunsmuir v. New Brunswick,  S.C.C. 9, March 7, 2008, collapsed the common law two standards of review of patent unreasonableness and reasonableness simpliciter, on judicial reviews, into one standard of “reasonableness”, leaving only the two standards of reasonableness and correctness, but the court did not suggest that the patent unreasonableness standard never existed. In fact it was its very existence that required the court to deal with it in its decision.
 While the court said that the new standard of reasonableness for judicial review would apply even where an administrative tribunal has a strong privative clause, the court did not specifically deal with the situation where the privative clause is backed by a provincial statute such as the ATA that specifically assigns the standard of patent unreasonableness to tribunals which are making findings of fact or law or exercising discretion in matters where they have exclusive jurisdiction under privative clauses.
 The court did say that the courts can rely on jurisprudence that has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category or question.
 There were cases in this court prior to Dunsmuir that applied the standard of patent unreasonableness in the ATA to decisions of WCAT (Basura v. British Columbia (Workers’ Compensation Board) 2005 B.C.J. 590, Daniel v. British Columbia (Workers’ Compensation Appeal Tribunal) 2007 B.C.S.C. 1005, and Wyant v. British Columbia (Workers’ Compensation Board) 2006 B.C.J. 986), and there is at least one decision in this court that has continued to apply the standard in the ATA after Dunsmuir (see Carter v. Travelex Canada Ltd.,  BCSC 405).
 However, in Howe v. 3770010 Canada Inc., 2008 BCSC 330, the learned trial judge determined that she could not use the definition of “patently unreasonable” found in s. 58(3) of the ATA because it was restricted to discretionary decisions of the tribunal.
 Instead, she determined that it was necessary to look to the common law for the definition of “patently unreasonable” and she referred to Dunsmuir where “reasonableness” became the standard. She then applied that standard of reasonableness to the tribunal’s decision in her case.
 This decision did not consider the fact that s. 58(2)(a) mandates a standard of patent unreasonableness for findings of fact or law or an exercise of discretion even if there is no definition of it for those purposes found in the section.
 I accept that the learned trial judge was correct in looking to the common law for the definition of patently unreasonableness, but I conclude that its definition must be as it existed prior to the new standard of reasonableness established by Dunsmuir. The words of s. 58(2)(a) requiring a standard of “patently unreasonable” cannot be ignored.
 Having the luxury of two competing decisions of this court to choose to follow, I choose to follow the Carter decision and apply the standard of patent unreasonableness to the October 28, 2003 decision of WCAT here, regardless of the decision in Dunsmuir, along with the ATA standard of fairness for natural justice and procedural fairness.
 It may be the case that the ATA can be considered as part of the existing jurisprudence that the Supreme Court of Canada in Dunsmuir said can be used by the courts to determine the degree of deference to be accorded to a tribunal, but it is unnecessary to decide that here.
 The WCAT review decision of February 8, 2007 will be considered on the correctness standard of whether it was correct in concluding that the WCAT decision of October 28, 2003 was not patently unreasonable and was procedurally fair.
The case against the WCB Review Board
 Ms. Lavigne’s complaint against the Review Board is that her appeal was transferred to WCAT instead of allowing the Review Board to complete its review of the original decision of the WCB setting her long term wage rate as it did at the eight week point.
 This complaint centres around the fact that the Act was changed in March 2003 to eliminate the Review Board and create WCAT.
 The genesis of Ms. Lavigne’s complaint is that she appealed the wage rate decision to the Review Board on December 2 or 4, 2002, when her counsel sent her notice of appeal to the WCB and asked that the Review Board proceed with the appeal on an expedited basis as she was experiencing financial difficulties.
 At that time, if the Review Board had heard and rejected her appeal, Ms. Lavigne could have appealed further within the WCB to the Appeal Division before taking this judicial review.
 However, once the Review Board was eliminated in March 2003 and WCAT came into existence, there were no appeals allowed from a WCAT decision, although it could be reviewed by WCAT itself.
 Follow-up letters from Ms. Lavigne’s counsel of January 28, 2003 and March 12, 2003 seeking information as to when the Review Board would issue its decision, apparently went without reply.
 On March 24, 2003, WCAT wrote Ms. Lavigne’s counsel advising him that the Review Board no longer existed as of March 3, 2003 and the new external appeal tribunal, WCAT would consider Ms. Lavigne’s appeal with no further avenue of appeal.
 Ms. Lavigne’s counsel replied the following day, March 25, 2003, taking the position that the Review Board was required to complete its findings and Ms. Lavigne’s right to appeal any Review Board finding further could not be eliminated by WCAT taking jurisdiction over her appeal.
 The affidavit of Mr. Johnson, the vice chair and deputy registrar of WCAT as of March 3, 2003, and the senior deputy registrar of the Workers’ Compensation Review Board before that, indicates that upon receipt of Ms. Lavigne’s counsel’s notice of appeal on December 2 or 4, 2002, the appeal was assigned to be decided by a one person panel, but no panel was in fact assigned.
 He explains that it was the practice of the Review Board not to assign a panel until all submissions were received and as of March 22, 2003 the Review Board was still waiting for submissions from the employer, Quesnel Traffic Control Control. That employer never did send in a submission.
 Mr. Johnson says on August 27, 2003 the appeal was assigned to a vice chair of WCAT and this was the first time it was assigned for consideration of the merits.
 The WCAT decision was issued on October 28, 2003.
 The Workers’ Compensation Amendment Act (No. 2), 2002, 2002 S.B.C. c. 66, assented to on October 31, 2002, contained transition provisions for the change over to WCAT.
 Section 38 said that all proceedings pending before the Review Board at the transition date, except those in s. 38(3), must be continued and completed before WCAT. The transition date was March 3, 2003 when WCAT was created.
 Section 38(3) defined the circumstances when the Review Board would continue and complete the proceedings, limited to those situations where the Review Board had completed an oral hearing or received final written submissions and begun its deliberations.
 Neither of these circumstances existed for Ms. Lavigne’s appeal to the Review Board at any time before WCAT was created.
 As a consequence of these transition provisions, Ms. Lavigne’s complaint against the Review Board cannot succeed and must be dismissed.
 Ms. Lavigne may be unhappy that the Review Board was taking so long for its decision, but on the evidence of Mr. Johnson the Review Board could not proceed until it heard from Quesnel Traffic Control and that point never came before the Review Board was discontinued by legislation.
 The Act has a privative clause, s. 254, that gives WCAT exclusive jurisdiction to inquire into, hear and determine all those matters and questions of fact, law and discretion arising or required to be determined, and to make any order permitted to be made, including all appeals from review officers decisions and board decisions or orders.
 Section 255 states that any decision of the chair or the appeal tribunal is final and conclusive and is not open to question or review in any court.
 Accordingly, under s. 58 of the ATA, WCAT is considered to be an expert tribunal in relation to all matters over which it has exclusive jurisdiction.
 By virtue of s. 58(2)(a) a finding of fact or law or an exercise of discretion by WCAT in respect of a matter over which it has exclusive jurisdiction under a privative clause must not be interfered with unless it is patently unreasonable.
 Questions about natural justice and procedural fairness must be decided having regard to whether, in all the circumstances, WCAT acted fairly.
 These considerations apply to the WCAT decision vice chair Boal of October 28, 2003.
 Vice chair Boal determined that Ms. Lavigne’s one year earnings prior to her injury best reflected her long term loss due to her compensable injury, rather than her wage rate at the date of injury or her three month average earnings prior to the injury.
 It is my conclusion that this decision was not patently unreasonable on the evidence that vice chair Boal had before him to make his decision.
 I adopt as my approach to be taken in applying the standard of patently unreasonable, the approach of Josephson J. in Speckling v. British Columbia (Workers’ Compensation Board),  B.C.J. 2244, as adopted by the Court of Appeal at 2005 B.C.J. 270.
1. The standard of review is that of patent unreasonableness: Canada (Attorney General) v. P.S.A.C. (1993), 101 D.L.R. (4th) 673 (S.C.C.).
2. "Patently unreasonable" means openly, clearly, evidently unreasonable: Canada (Director of Investigation and Research) v. Southam Inc.,  1 S.C.R. 748.
3. The review test must be applied to the result not to the reasons leading to the result: Kovach v. British Columbia (Workers' Compensation Board) (2000), 184 D.L.R. (4th) 415 (S.C.C.).
4. The privative clause set out in s. 96(1) of the Act requires the highest level of curial deference: Canada Safeway v. B.C. (Workers' Compensation Board) (1998), 59 B.C.L.R. (3d) 317 (C.A.)
5. A decision may only be set aside where the board commits jurisdiction error.
6. A decision based on no evidence is patently unreasonable, but a decision based on insufficient evidence is not: Douglas Aircraft Co. of Canada Ltd. v. McConnell,  1 S.C.R. 245, and Board of Education for the City of Toronto v. Ontario Secondary School Teachers' Federation et al (1997), 144 D.L.R. (4th) 385 (S.C.C.).
 Vice chair Boal noted that Ms. Lavigne on her application for compensation had indicated her occupation as first aid/flag person and had explained that her injury occurred during her flagging duties.
 He also observed that contrary to her evidence that she had been hired by the boss as a first aid attendant the “boss” denied that he had offered her a job as a first aid attendant as recorded in a log entry of November 20, 2002, and there was no documentary evidence of a job offer.
 Vice chair Boal was not satisfied there had been any fixed change in her employment and even if there had been he concluded there was insufficient evidence that this would have continued in the future.
 He determined to use her one year earnings prior to injury as best reflecting her long term loss.
 He referred to Board policy to use the three month earnings prior to the injury if there was a relatively fixed change in the worker’s earning pattern which is deemed likely to continue into the future, but he was not satisfied her earnings in the three month period prior to the injury were the best reflection of her long term loss.
 The reference to Board policy was clearly a reference to policy 67.20 of the Rehabilitation Services and Claims Manual (R.S.C.M.) that says:
Normally earnings in the one year period prior to the injury are obtained and used to reflect the worker’s long term wage loss and the pension rate. In some instances, however, the three month figure prior to the injury may be used. Its use, however, is generally limited to those situations where there is a relatively fixed change in the worker’s earning pattern which is deemed to continue in the future.
 The policy requires the claims adjudicator to “also consider the probability of the worker continuing in the injury occupation. For this purpose the adjudicator will contact the employer to inquire whether the worker could reasonably have been expected to continue in the job.”
 There was certainly some evidence on which vice chair Boal could conclude that Ms. Lavigne presented at the time of her injury as more of a flag person than a first aid attendant and that there was no fixed change in her earning pattern in the three months prior which could be deemed to continue in the future, particularly when the log entry of November 20, 2002 of the conversation with the “boss” indicated that he had denied her a contract as a first aid attendant. In addition vice chair Boal relied upon general knowledge that the road construction industry is subject to layoffs and uncertainties, and that certainly is a matter of general knowledge.
 I cannot say that the decision of vice chair Boal on all the evidence he considered was patently unreasonable and that aspect of the judicial review of his decision must be dismissed.
 I turn next to a consideration of whether the rules of natural justice and procedural fairness were met on the hearing before vice chair Boal, and whether he acted fairly in all the circumstances by not requiring an oral hearing to allow Ms. Lavigne to answer the evidence of the “boss” set in the log note, and perhaps require the attendance of the “boss” to be cross-examined on what he had apparently said to the case worker who made the log note and what promises he had made to Ms. Lavigne.
 Vice chair Boal noted in his decision that Ms. Lavigne had not requested an oral hearing. This is correct in that in her notice of appeal she had left in the pre-printed words that “I do not need an oral hearing”, and her counsel had written on April 24, 2003 confirming that the appeal would proceed by Read and Review.
 Subsequent to vice chair Boal’s decision, Ms. Lavigne expressed lack of knowledge of who the “boss” was referred to in the decision, identified there only as “Mr. J” of the “pre-injury employer”. In her submission for reconsideration she said she had absolutely no idea who “Mr. J” was, and she pointed out that Ms. Wills of Quesnel Traffic Control was her only pre-injury employer.
 However, as previously stated, WCB had presumably forwarded the log note of November 20, 2002 to Ms. Lavigne’s counsel in the file disclosure of June 27, 2003. I presume this because the letter of June 27, 2003 to counsel said that documents since the last disclosure were included, and that last disclosure was on September 20, 2002 before the log note of November 20, 2002.
 In any event, Ms. Lavigne does not appear to have known about it and she had to be informed on January 8, 2004 that Mr. J. was John O’Dare of Gable Construction.
 Ms. Lavigne’s counsel applied for reconsideration of vice chair Boal’s decision on the basis that an oral hearing should have been held regardless of Ms. Lavigne’s lack of request for one, because vice chair Boal had relied upon double hearsay notations in the log file (the written note of the caseworker of the conversation with Mr. O’Dare), as against Ms. Lavigne’s written evidence, without giving her the opportunity to cross-examine Mr. O’Dare.
 After being advised that Mr. J was John O’Dare, Ms. Lavigne went out to talk to Mr. O’Dare and through her counsel on September 10, 2004 enclosed a letter of May 26, 2004 over the typed name of John O’Dare as part of her application for reconsideration.
 When the matter came before vice chair Steeves he defined the issues as to whether there was a patently unreasonable error of law or a breach of the rules of natural justice in the previous decision of vice chair Boal.
 In his decision of February 8, 2007 vice chair Steeves determined that the decision of vice chair Boal was not patently unreasonable and the application for reconsideration was denied.
 On the issue of natural justice and procedural fairness, vice chair Steeves observed that Ms. Lavigne had not requested an oral hearing originally but had only requested this after vice chair Boal’s decision. He noted that the substance of the log note of November 20, 2002 of the telephone interview with Mr. J had formed part of the reasoning of vice chair Boal and also noted that Ms. Lavigne had indicated she did not know who Mr. J was.
 Vice chair Steeves said that there had not been explained what new evidence would be generated by an oral hearing and an oral hearing was not available simply to re-hear a factual dispute.
 He accepted that there was something of a dispute on the facts of the case with Ms. Lavigne saying she was employed as a first aid attendant and the employer saying she was employed as a flag person but he said that this was a dispute from the beginning, and while oral hearings are generally used for determining issues of credibility, Item 8.70 of the MRPP stated that there may be an entitlement to an oral hearing if there are “significant issues of credibility”, although not all disputes over facts require an oral hearing.
 Vice chair Steeves made no mention specifically in his decision of the letter of May 26, 2004 over the name of Mr. O’Dare. He did mention counsel’s letter of September 10, 2004 raising the issue of an oral hearing but he did not mention the letter of May 26, 2004 included with counsel’s letter.
 Counsel for WCAT on the judicial review before me points out that the May 26, 2004 letter that was submitted to the reconsideration panel was not advanced as new evidence on the reconsideration application, but as part of a submission that vice chair Boal should have provided an oral hearing during which this evidence might have come forward.
 Counsel for WCAT points out that s. 256 of the Act contains a due diligence requirement for new evidence and arguably this letter may not have met that test.
 Counsel submits that it would have been open to vice chair Steeves on reconsideration to find the letter was equivocal, and that his comment that it had not been demonstrated what new evidence would be presented at an oral hearing should be taken to mean new evidence satisfying the requirement of s. 256 of the Act – the inference being sought that vice chair Steeves considered the letter of May 26, 2004 and determined that it did not meet the requirements for new evidence.
 I am not prepared to accept that vice chair Steeves even saw the letter of May 26, 2004 or if he did, considered it. If he had reviewed it I am not satisfied that he would have dismissed it outright as not constituting new evidence. After all he would have seen that it was from the same “Mr. J” that had been the source of the log note of November 20, 2002 and he would have had to decide if its existence made the log note unreliable as evidence and/or made it unfair for vice chair Boal to have proceeded without an oral hearing instead of conducting an oral hearing where Mr. O’Dare would have been called and might have given the same evidence as set out in the letter of May 26, 2004.
 Vice chair Boal had used the log note as part of his “reasons and findings”, and the information in the letter of May 26, 2004 might have changed his conclusion on whether “if this was a fixed change in her employment, there is insufficient evidence on file that this would have continued in the future.”
 The importance of this letter of May 26, 2004 is graphically illustrated by the contrary decision of vice chair Yaeger of February 11, 2008 on Ms. Lavigne’s pension. There she reviewed some of the same initial evidence of Ms. Lavigne’s status including her application describing her as “first aid/flag person”, the employer’s letter to ICBC describing her duties as “traffic control/first aid attendant on last job”, the letter of October 4, 2000 from Quesnel Traffic Control advising WCB that Gable Construction had informed her they were hiring Ms. Lavigne on the next job in Cache Creek, and the contact with the WCB on October 5, 2000 by Quesnel Traffic Control advising that Ms. Lavigne was also the first aid person on the injury job.
 Vice chair Yaeger referred to the log note of November 20, 2002 and to the letter of May 26, 2004 and said that the letter from the general contractor was persuasive that Ms. Lavigne was establishing herself as first aid attendant to road and highway construction contractors at the time of her injury, and this was a change in her employment that was likely to continue.
 Vice chair Yaeger was also satisfied Ms. Lavigne would have been steadily employed given the comments of the general contractor in the May 2004 letter.
 Vice chair Yaeger pointed out that by policy 67.20 generally the 8-week rate is used for the pension, but an officer in disability awards could use a separate rate if the situation warranted.
 Vice chair Yaeger determined that the 8-week wage rate based on Ms. Lavigne’s one year pre-injury earnings was not an accurate reflection of her loss due to her injury, and she decided the Board should use the statistical rates for full time first aid workers in the interior of the province during 1999/2000 to establish Ms. Lavigne’s wage rate for pension purposes.
 Since the effective date for Ms. Lavigne’s pension entitlement had been established as April 13, 2003, her wage rate was to be calculated as of that date based on the statistics for full time first aid workers.
 This decision of vice chair Yaeger has effectively confined the original 8-week wage rate decision upheld by vice chair Boal and vice chair Steeves to the period of time until April 13, 2003. It is the wage rate assigned for only the time period September 9, 2000 to April 13, 2003 that became the basis for this judicial review.
 One other consequence of vice chair Yaeger’s decision is that the initial 8-week wage rate decision that was approved by the disability awards officer at the time was changed for pension purposes as of April 13, 2003 on the same underlying facts of Ms. Lavigne’s employment and opportunities in the year 2000.
 This appears to be an internal inconsistency within the Workers’ Compensation Board wage rate considerations. Policy 67.20 dealing with the 8-week review requires a claims adjudicator to consult with a disability awards officer at the 8-week review where a permanent disability is anticipated in order to provide consistency between the two rates. This consultation did occur here with a disability officer at the long term (eight week) decision who confirmed the decision. Subsequently when deciding Ms. Lavigne’s pension rate on the basis of permanent disability a different rate was set by vice chair Yaeger.
 Counsel for WCAT on the judicial review says that internal inconsistencies do happen from time to time at WCB because of different requirements and here vice chair Yaeger had additional evidence before her than did vice chair Boal.
 I have reviewed this alleged additional evidence and in my view any additional evidence before vice chair Yaeger was not important to her decision. Information as to what Ms. Lavigne did between 1994 to December 1999 when she obtained her Level III first aid certificate was not determinative of vice chair Yaeger’s decision. Neither was the five year plan of Ms. Lavigne to work before retirement and the plan for her husband to join her if her first aid attendant business was successful.
 Counsel for WCAT says that vice chair Yaeger did not find that there was a relatively fixed change in earnings as of July 2000 as policy 67.20 contemplates, and as vice chair Boal dealt with, but she rather found that Ms. Lavigne was in a period of transition in 1999 and 2000.
 This is true, as vice chair Yaeger relied upon the discretion in policy 68.00 to base the permanent disability pension on other than the rate decided at the 8-week review.
 This probably is one of those inconsistencies that counsel was mentioning.
 Section 33(1) of the Act at the time imposed an obligation on WCB to determine the average earnings and earning capacity of a worker with reference to the time of the injury.
 Policy 65.00 states that ss. 33(1) obliges the board to select the method which most accurately represents the worker’s actual loss of earnings by reason of the injury. For that purpose it states that the policies lay down a framework of principles that claims adjudicators are required to follow.
 Policy 65.00 also states however that:
There will be situations where the framework laid down by the Board, when applied to an individual case, will not meet the principles of, or the intent, of Section 33(1). Therefore the discretion allowed under Section 33(1) of the Act may require that the Adjudicator exercise judgment in calculating average earnings that would “… appear to the board best to represent the actual loss of earnings suffered by the worker by reason of the injury, but not so as in any case to exceed the maximum wage rate …
 I also observe that vice chair Boal defined the issue as “whether the board correctly established the long term wage rate that best represents the worker’s loss of earnings by reason of her compensable injury”. In my view this internal inconsistency between policy 67.20 and policy 68.00 might have been avoided if vice chair Boal had available to him the contents of the letter of May 26, 2004.
 The question therefore becomes whether in view of the forwarding of this letter of May 26, 2004 to the reconsideration panel, it was considered by vice chair Steeves and if not whether it should have been considered and accepted either as new evidence before him, or as evidence demonstrating that it was unfair as a matter of natural justice for vice chair Boal not to have conducted an oral hearing, even where Ms. Lavigne had not sought one, where Mr. O’Dare would have been present to explain the log note and exactly what he had promised Ms. Lavigne.
 In his decision vice chair Steeves said that despite the broad discretion given to WCAT on the manner of hearing appeals, some situations require an oral hearing in order to properly apply the right to be heard. He said the duty to comply with the rules of natural justice (including the application of the right to be heard) is eminently variable and its content is to be decided on the specific content of each case.
 The employer here at the time of Ms. Lavigne’s injury was not Gable Construction nor Mr. O’Dare. The employer was Quesnel Traffic Control with Ms. Wills as the principal of it.
 It is true that Quesnel Traffic Control filed a report of injury dated October 20, 2000 describing Ms. Lavigne as a flag person. It is also true that in a form for ICBC on the same date in describing Ms. Lavigne’s duties, Ms. Wills said it was “Traffic Control/First Aid Attendant on last job.”
 It is also true that on December 24, 2002 Ms. Wills faxed a letter to WCB saying that at the time of her accident Ms. Lavigne was on a fair wage job that did not exist anymore “and first aid wages were $20 per hour and $4 benefits but that was the only job I required her to be as first aider in her employment.”
 Whether vice chair Steeves recognised that Gable Construction was not the pre-injury employer is unknown. It is clear, however, that vice chair Boal thought the case worker had been talking to the pre-injury employer.
 Regardless, it is clear that the log note played a significant role in vice chair Steeves’ decision to deny reconsideration, saying that vice chair Boal weighed all the evidence and preferred the evidence of the employer.
 Pursuant to s. 5 of the Judicial Review Procedure Act I am returning this matter to vice chair Steeves with the direction to reconsider and determine whether he is prepared to accept the letter of May 26, 2004 over the name of Mr. O’Dare as new evidence before him or as evidence demonstrating that it was unfair as a matter of natural justice for vice chair Boal not to have conducted an oral hearing, even where Ms. Lavigne had not sought one, where Mr. O’Dare would have been required to be present to explain his apparent comments in the log note and explain exactly what he had promised Ms. Lavigne.
 These reasons will be included with the direction.