Court of Appeal

CASE NO.     VOL. NO.       PAGE

WORKERS’ COMPENSATION BOARD   of NOVA SCOTIA

(Appellant)

- and -                                    

WORKERS’ COMPENSATION APPEALS

TRIBUNAL OF NOVA SCOTIA and LEONARD RYAN

                                                                                       (Respondents)

CA 159578          Halifax, N.S.                                    CROMWELL, J.A.                                    

[Cite as: Nova Scotia (Workers’ Compensation Board) v. Ryan,  2000 NSCA 56]

APPEAL HEARD:                                 February 2, 2000

JUDGMENT DELIVERED:                 May 1^st, 2000

SUBJECT:         Workers’ Compensation - Permanent Disability - s. 228 - “window” period benefits

SUMMARY:        The respondent, Mr. Ryan, was injured on August 12, 1992, and applied for permanent partial disability benefits commencing in August of 1994.  WCAT found that Mr. Ryan was entitled to such benefits and directed that they be determined in accordance with s. 45 of the former Act by taking 75% of the difference between Mr. Ryan’s average weekly earnings before his injury and his average weekly earnings after it.  The Board appealed.

RESULT:            Appeal allowed.  The case is governed by s. 228 of the current Act. It deems awards to which one became entitled during the “window” period to have been made in accordance with the former Act.  In Doward v. Workers’ Compensation Board (1997), 160 N.S.R. (2d) 22, the Court determined that one effect of this deeming provision is that benefits for permanent disability during the “window” period are awarded in accordance with the former Act.  In Lowe v. Nova Scotia (Workers’ Compensation Appeals Tribunal) (1998), 166 N.S.R. (2d) 321, the Court interpreted similar language in s. 226 of the current Act as rectifying, ratifying and confirming awards made by the Board notwithstanding the decision of this Court in Hayden v. Workers’ Compensation Appeal Board (No. 2) (1990), 96 N.S.R. (2d) 108.  The deeming provision in s. 228 has both of these effects.  It preserves the right to awards that would have been payable under the former Act and deems the method of calculating that benefit actually employed by the Board pursuant to its policies during the “window” period to have been in accordance with the former Act.