Citation: Connolly v. Nova Scotia (Workers’ Compensation Board),
2006 NSCA 3
Date: 20060109
Docket: CA 192928
Registry: Halifax
Between:
Canada Post Corporation
Appellant
v.
Nova Scotia Workers’ Compensation Appeal
Tribunal and The Workers’ Compensation Board
of Nova Scotia and John E. Connolly
Respondents
Judges: Cromwell, Hamilton and Fichaud, JJ.A.
Appeal Heard: September 28, 2005, in Halifax, Nova Scotia
Held: Appeal allowed in part per reasons for judgment of Cromwell, J.A.; Hamilton and Fichaud, JJ.A. concurring.
Counsel: Kevin Kindred, for the appellant
Alexander MacIntosh, for the respondent Tribunal
Paula Arab, for the respondent Board
Anne Clark and Kenneth LeBlanc, for the respondent, John E. Connolly
Reasons for judgment:
I. INTRODUCTION:
[1] This case is concerned with whether an injured worker, John E. Connolly, is eligible for a special type of permanent impairment benefit under s. 10E of the Nova Scotia Workers’ Compensation Act, S.N.S. 1994-95, c. 10, as am. (“WCA”). The Workers’ Compensation Appeal Tribunal (“WCAT”) found that he is, but Mr. Connolly’s employer, Canada Post, appeals that finding.
[2] To be eligible for the benefit under s. 10E, Mr. Connolly must meet the rather unusual eligibility requirements set out in the section — requirements which only make sense in light of the special context in which they were enacted. He must have been injured between March of 1990 and February of 1996 (dates which have a special significance in the history of workers’ compensation in this Province) and, as of November 25, 1998 (another significant day), he must either have been receiving temporary earnings-replacement benefits or had a claim under appeal: s. 10E(d). There is no question that Mr. Connolly was injured during the relevant period, that he developed chronic pain following that injury and that he was not receiving temporary earnings-replacement benefits as of November 25, 1998. His eligibility, therefore, depends on whether, as of that date, he had a claim under appeal. That is the issue at the root of the case.
[3] The only appeal relating to Mr. Connolly in the system at the relevant time was an appeal by Canada Post. The narrow question, therefore, is whether the fact that his employer was appealing a Workers’ Compensation Board (“WCB”) decision about Mr. Connolly means that he had “a claim under appeal” as required by s. 10E.
II. ISSUES:
[4] It is hard to imagine a much more straight-forward question than whether Mr. Connolly had a claim under appeal on November 25, 1998. Unfortunately however, this question, when viewed in its full context, is far from simple. It is also embedded in a number of other issues which have to be resolved - issues which themselves are far from straight-forward.
[5] These other questions arise from two main sources : the interaction between the federal Government Employees Compensation Act, R.S.C. 1985, c. G-5 (“GECA”) and the Nova Scotia WCA and the difficulty of interpreting some of the provisions in the WCA itself. I will explain.
[6] Canada Post employees, like Mr. Connolly, are covered by GECA. Under GECA, a federal employee who suffers a workplace injury is entitled to compensation “... at the same rate and under the same conditions as are provided under the law of the province where the employee is usually employed ...”. That compensation is to be determined by “the same board, officers or authority as ... established by the law of the province for determining compensation for workmen ...”: GECA, s. 4(1)(a) and 4(3). In other words, the provisions of WCA apply to GECA claims provided that the relevant WCA provisions are reasonably incidental to a rate or condition governing compensation and do not conflict with GECA: Morrison (Estate) v. Cape Breton Development Corporation (2003), 218 N.S.R. (2d) 53; N.S.J. No. 353 (Q.L.) (C.A.) at para. 68.
[7] In this case, the relevant provisions of WCA are ss. 10E and F which provide:
10E Where a worker
(a) was injured on or after March 23, 1990, and before February 1, 1996;
(b) has chronic pain that commenced following the injury referred to in clause (a); and
(c) as of November 25, 1998, was in receipt of temporary earnings-replacement benefits; or
(d) as of November 25, 1998, had a claim under appeal
(i) for reconsideration,
(ii) to a hearing officer,
(iii) to the Appeals Tribunal, or
(iv) to the Nova Scotia Court of Appeal,
or whose appeal period with respect to an appeal referred to in subclauses (i) to (iv) had not expired, the Board shall pay to the worker a permanent-impairment benefit based on a permanent medical impairment award of twenty-five per cent multiplied by fifty per cent, and an extended earnings replacement benefit, if payable pursuant to Sections 37 to 49, multiplied by fifty per cent and any appeal referred to in clause (d) is null and void regardless of the issue or issues on appeal.
10F A decision of the Appeals Tribunal on a matter referred to in Section 10E is not subject to appeal, review or challenge in any court.
[8] These sections give rise to two questions about how WCA and GECA interact in this case. The first is whether s. 10E of WCA applies to GECA claims. While 10E certainly relates to a rate or condition governing compensation, Canada Post submits that it conflicts with s. 4(1)(a) of GECA and therefore cannot apply to GECA claims. The question is whether workers like Mr. Connolly who are covered by GECA are eligible to receive benefits provided for under s. 10E of WCA. The answer depends on whether there is a conflict between s. 10E of WCA and s. 4 of GECA.
[9] If s. 10E applies, there is another question about how GECA and WCA interact in this case. Section 10F of WCA is a strong privative clause which protects WCAT’s determinations on matters under s. 10E. Canada Post submits that privative clauses in WCA do not apply when WCAT is addressing a GECA claim.
[10] In addition to these issues about how GECA and WCA interact, there are two problems concerning how WCA itself should be interpreted.
[11] Section 256 of WCA provides for a right of appeal, with leave, to this Court from a final order, ruling or decision of WCAT. However, as noted, s. 10F purports to preclude any judicial review of WCAT’s determinations of matters referred to in s. 10E. If s. 10F applies to GECA cases, there is a question of whether it bars this appeal. The second question concerns the nature of the claim under appeal. We have held that the claim referred to in s. 10E must be in relation to chronic pain: see, e.g. Lloyd v. Nova Scotia (Workers’ Compensation Appeals Tribunal) (2002), 201 N.S.R. (2d) 368; N.S.J. No. 40 (Q.L.) at paras. 28 - 29. The question is whether the appeal taken by Canada Post in Mr. Connolly’s case was such a claim.
[12] Finally, there is the issue of the appropriate standard of appellate review. The interplay between WCA and GECA complicates this question. It is argued that the privative clauses in WCA do not apply to GECA cases like this one. A further wrinkle is that WCAT only expressly determined the issue of whether Mr. Connolly had a claim under appeal. The Tribunal did not address the issues about the interaction of GECA and WCA. The Court is not in any meaningful sense reviewing WCAT’s findings on those points because there are no findings to review.
[13] The appeal, therefore, gives rise to the following issues which, for the reasons I will set out, I would resolve as indicated:
1. Does s. 10E apply to GECA claims? In my view it does.
2. If so, does s. 10F also apply? My answer is yes.
3. If s. 10F applies, does it bar the appeal? In my view it does not.
4. What are the appropriate standards of review? The legal points on which WCAT made no determination must be decided in the first instance by the Court. WCAT’s determination that Mr. Connolly had a claim under appeal within the meaning of s. 10E (d) should be reviewed on the patent unreasonableness standard.
5. Did WCAT make a reviewable error when it found that Mr. Connolly had “... a claim under appeal” as of November 25 1998? In my view it did not.
6. Is the appeal in relation to chronic pain? Neither the Board nor WCAT addressed this issue. I would remit this question to the Board for decision.
III. CLAIM HISTORY:
[14] Mr. Connolly suffered three workplace injuries - one in 1992, 1995 and 1997. The first two were between the relevant statutory dates of March, 1990 and February, 1996. The WCB accepted these injuries as compensable and paid temporary earnings-replacement benefits for various periods until December 19, 1997. As noted, Mr. Connolly was not receiving temporary earnings-replacement benefits as of the relevant statutory date, November 25, 1998.
[15] The claim concerning the January 1995 injury is most relevant to the appeal. The WCB awarded temporary benefits from January to April of 1995. It declined to extend the award past April because the medical information suggested Mr. Connolly would be able to return to work that month.
[16] Mr. Connolly successfully appealed to a hearing officer who (in April of 1997) found that he had been entitled to temporary partial disability benefits up to June of 1995. The hearing officer remitted the file to the case manager for determination of the level of benefits to which Mr. Connolly had been entitled. The hearing officer did not take a certain medical report into account, noting that while the employer had relied on it, a copy was not in the file.
[17] At this point, the claim came to a fork in the road and took it.
[18] Following the path directed by the hearing officer, the matter went back to a case manager. The case manager (on May 26, 1997) found that Mr. Connolly had not suffered any wage loss because he had been receiving full salary. While he would otherwise have been entitled to benefits, he was awarded none because he had not suffered actual wage loss.
[19] Taking the claim on the other path, Canada Post appealed to WCAT the hearing officer’s decision respecting entitlement. That appeal — the appeal by the employer — was pending as of November 25, 1998. As of that date, there was no other appeal pending in relation to Mr. Connolly’s claims for benefits. WCAT (in June of 1999) allowed Canada Post’s appeal on the basis that the hearing officer had been wrong not to consider the medical report relied on by Canada Post. The matter was remitted to the hearing officer for consideration in light of the medical report and the finding by the case manager that Mr. Connolly had suffered no wage loss.
[20] The hearing officer (in August of 1999) found that Mr. Connolly’s benefits should not be extended beyond April of 1995 for two reasons: he had received pay during that period and therefore did not actually suffer wage loss; and, in any event, his ongoing disability beyond April of 1995 was not as a result of his compensable injury but rather of “the non compensable factors” in his life at the time. That decision was not appealed.
[21] In the meantime, Mr. Connolly had been diagnosed in November of 1995 with chronic pain disorder and had been injured again in September of 1997. In December of that year, a case manager found that he had chronic pain and designated Mr. Connolly for participation in the Functional Restoration Program.
IV. THE DECISIONS GIVING RISE TO THIS APPEAL:
[22] In March of 2002, Mr. Connolly asked the WCB for a permanent medical impairment for three of his previous claims, including the one we are concerned with here. The case manager’s response begins the chain of decisions leading to this appeal.
[23] The case manager ruled that Mr. Connolly was not entitled to a permanent impairment benefit for any of the injuries. She noted that there had been a final decision of the Board in relation to the 1995 injury (the one that is the subject of this appeal) and that the Board had determined that he suffered from chronic pain in December of 1997. She noted that all of the claims were in relation to soft tissue injuries with no objective medical findings to support a permanent medical impairment and that Mr. Connolly had received the Functional Restoration Program in relation to his chronic pain.
[24] Mr. Connolly appealed the case manager’s decision to a hearing officer. She noted that the only issue properly before her related to Mr. Connolly’s entitlement to permanent impairment benefits. She found first that, as there were no significant objective abnormalities on examination attributable to the worker’s compensable injuries, he was not entitled to a permanent impairment benefit pursuant to the PMI Guidelines that were then in place.
[25] The hearing officer turned next to the question of whether Mr. Connolly was entitled to the benefit provided for in s. 10E of the Act. The hearing officer concluded that Mr. Connolly was not entitled to this benefit. There was no doubt he met the first requirements: He had been injured during the time period specified in the section and suffered from chronic pain. However, the hearing officer found that he did not meet the second requirement because he neither had been receiving temporary earnings replacement benefits nor had a claim under appeal as of November 25, 1998. With respect to this last point, the hearing officer found that the fact the employer had an appeal in the system did not mean that Mr. Connolly had a claim under appeal within the meaning of the provision. She reasoned:
... If the Worker’s claim for benefits pursuant to Section 10E of the Act were to be accepted, the remedy that would flow from that finding would be that the Employer’s appeal would be rendered null and void. This clearly would not be the intent of the Legislation. As such, I find that the Worker has not met the final requirement of Section 10E of the Act, in that he did not have a claim under appeal as of November 25, 1998.
[26] Mr. Connolly appealed to WCAT and his appeal succeeded. WCAT found that, as there was a pending employer’s appeal of his claim, Mr. Connolly had a “claim under appeal” at the relevant time. WCAT reasoned as follows:
Both the Hearing Officer and counsel for the Employer argue that the legislature, when it enacted its chronic pain provisions, could not possibly have intended that a worker could benefit under s. 10E provisions if, as of November 25, 1998, it was the Employer who had an appeal arising from a Worker’s claim in the system.
With the greatest respect for both the Board and the counsel for the Employer, I disagree, and make the contrary finding. Not only do I not find it an unreasonable interpretation of the provisions of s. 10E to find that an Employer appeal should preserve a worker’s eligibility for chronic pain benefits, I find their position that, implicitly, an Employer could foreclose the awarding of s. 10 benefits to the worker simply by appealing whatever prior decision had been made by the Board, so long as it filed the appeal so that it was still alive on November 25, 1998, so unreasonable as not possibly to be intended by the Legislature.
The appeal that I find has preserved the Worker’s eligibility for receipt of chronic pain benefits was made by the Employer in the course of adjudicating the original claim by the Worker. It was not an appeal newly filed by the Employer in any other matter. Until that appeal has been decided, it is the Worker’s entitlement to benefits under the Act, and no other matter, that is being adjudicated. The pertinent language of s. 10E, regarding the Worker, is “had a claim under appeal.” To this extent, it is the Worker’s claim that is alive, notwithstanding that, as of November 25, 1998, it was the Employer who had moved the consideration of the claim to the next level of adjudication.
It is not necessary for me to consider whether it was the injury of 1992 or 1995 which gave rise to the finding of chronic pain.
[27] Canada Post seeks to reverse that finding on appeal to this Court.
V. ANALYSIS:
[28] I will address the issues in the order that I have outlined earlier.
1. Does Section 10E apply to GECA Claims?
[29] WCAT did not address the question of whether s. 10E applies to GECA claims. We, therefore, must decide this legal question at first instance. While as a general rule I would prefer not to decide questions for the first time on appeal, this point raises an issue about the interpretation of GECA to which this Court has applied the correctness standard of review: Salloum v. Nova Scotia (Workers’ Compensation Appeals Tribunal) (2000), 190 N.S.R. (2d) 77; N.S.J. No. 415 (Q.L.) at para. 18; Morrison (Estate) v. Cape Breton Development Corporation, supra at para. 72. I think it is, therefore, appropriate to decide this matter on appeal even though WCAT did not address it.
[30] As noted, GECA, through its s. 4, incorporates provisions from WCA provided they relate to the rate or conditions of compensation and do not conflict with any of the provisions in GECA itself: see Morrison, supra. There is no issue here that s. 10E of WCA meets the first of these conditions as it clearly deals with a rate or condition governing compensation under WCA. The issue is whether s. 10E conflicts with GECA and therefore does not apply to GECA claims.
[31] The employer says there is a conflict. It submits that the benefit under s. 10E WCA does not require proof that chronic pain resulted from the workplace injury. This, it is submitted, conflicts with ss. 4(1)(a) and 4(2)(a) of GECA which direct that compensation is to be paid to workers who are “... caused personal injury by an accident arising out of and in the course of his employment ... .” The conflict is said to arise because, unlike under GECA, there is no requirement under s. 10E that the chronic pain for which compensation is being paid be casually connected to the injury; that is, under s. 10E, the chronic pain does not meet the GECA requirement of being an “...injury ... arising out of and in the course of employment.”
[32] I do not accept the employer’s argument. In my view, there is no conflict between s. 4 of GECA and s. 10E of WCA. GECA provides for compensation to an employee who is “... caused personal injury by an accident arising out of and in the course of ... employment ...”: s. 4(1)(a). Mr. Connolly is such a worker: As noted earlier, the Board accepted that he had suffered injuries by accident arising out of and in the course of employment in 1992, 1995 and 1997. Under GECA, he is entitled to receive compensation “ ... at the same rate and under the same conditions ...” as provided for under WCA for persons who “... are caused personal injuries by accident arising out of and in the course of their employment...” : s. 4(2). Section 10E of WCA is an aspect of the compensation provided under WCA for a person who has suffered a personal injury by accident arising out of and in the course of his employment. That is what s. 4(2) of GECA says the worker is entitled to receive. There is, thus, no conflict between these provisions.
[33] I conclude, therefore, that s. 10E applies to GECA claims and that Mr. Connolly is eligible for that benefit if he meets the requirements of the section.
2. Does Section 10F also apply?
[34] Section 10F provides that there is to be no judicial review or appeal in relation to WCAT’s determinations of matters referred to in s. 10E. Does s. 10F apply to GECA claims?
[35] The appellant submits that privative clauses in WCA, such as s. 10F, do not apply to GECA cases. In support of this submission, the appellant relies on Canada Post Corp. v. Johnson (1993), 127 N.S.R. (2d) 207 (S.C.), Salloum, supra, Stene v. Saskatchewan (Workers’ Compensation Board), [2002] SKQB 66 (Q.L.) (Sask. Q.B.) and Canada Post Corp. v. Smith (1999), 159 D.L.R. (4th) 283 (Ont. C.A.). I have also referred to Canada Post Corp v. Saskatchewan (Workers’ Compensation Board), [1998] S.J. No. 839 (Q.L.)(Q.B.).
[36] In my view, s. 10F applies to GECA cases and I reject the appellant’s submission to the contrary. The cases which the appellant cites provide little support for the contention and all but one are clearly distinguishable. Moreover, it seems wrong in principle to say, on one hand, that GECA adopts the appeal mechanisms under WCA but does not adopt the limitations on the scope of those appeal mechanisms.
[37] I turn to the cases relied on by the appellant. It is not unfair to say that none of these cases contains any significant analysis of this issue. Moreover, only one of them addresses the issue of whether privative clauses in the provincial legislation apply to the tribunal’s interpretation of other provisions in the provincial legislation.
[38] First, the Nova Scotia cases. The Court in Johnson cites no supporting authority and offers no analysis for the conclusion that the privative clause in s. 150 of the WCA, as it stood at that time, did not apply to the Board’s determination of whether a stress claim fell within s. 4 of GECA. I do not think this conclusion was approved in Salloum. In para. 42 of Salloum, the Court simply recounts the holding in Johnson on this point but without comment. Salloum itself did not involve any issue about the applicability to GECA of a privative clause.
[39] Turning to the Ontario decision in Smith, there is simply a one sentence statement that the privative clause in the provincial legislation does not apply when the Tribunal interprets GECA. No authority is cited and no supporting analysis is offered. I also note that in Smith, even without privative protection, the Court found that the Tribunal had exclusive jurisdiction to interpret the word “compensation” in GECA and that the standard of review was found to be patent unreasonableness: para. 22.
[40] There are two relevant authorities from Saskatchewan. The comments on this subject in Canada Post Corp. v. Saksatchewan (Workers’ Compensation Board), supra turn on the fact that the interpretative issue related to provisions in GECA whereas the privative clause only protected determinations under the Board’s home statute. While the Court cited The King v. Bender, [1947] S.C.R. 172; 2 D.L.R. 161 (S.C.C.), I cannot see how Bender is relevant to this issue. The second case is Stene. It cites Bender, Salloum, Smith, Johnson and Canada Post for the proposition that ss. 4(2) and (3) of GECA do not incorporate for GECA claims the privative clauses found in provincial legislation. With respect, none of the cases cited stands for that broad proposition.
[41] Johnson, Smith and Canada Post concerned the application of the provincial privative clause to the Tribunal’s interpretation of provisions in GECA. That, of course, is a very different issue from the one in Stene and the one in the present case. As noted, the present case, like Stene, is concerned with the application of a privative clause in WCA to the Tribunal’s determination under another provision in WCA, not of GECA. Stene did not notice this distinction and offers no reasoning or authority to support its conclusion that provincial privative clauses do not apply under GECA when the Tribunal is applying provincial law to GECA claims.
[42] Moreover, we have held in Thomson v. Nova Scotia (Workers Compensation Appeals Tribunal) (2003), 212 N.S.R. (2d) 81; N.S.J. No. 39 (Q.L.) (C.A.) that ss. 4(2) and (3) of GECA incorporated for GECA claims the rights of appeal to this Court from WCAT as provided for in s. 256 of WCA. Applying that principle, it is difficult to understand why, if GECA incorporates rights of appeal provided for under provincial legislation, it does not also incorporate the provisions concerning the scope of those appeals, at least in relation to the interpretation of the provincial legislation adopted by GECA.
[43] I conclude that GECA, which incorporates the right of appeal from WCAT to this Court, also incorporates the privative protection for the Tribunal’s decision in relation to its decisions “... on a matter referred to in s. 10E ... ” as provided for in s. 10F of WCA. Section 10F, therefore, applies to determinations under s. 10E of the WCA even when made in the context of GECA claims.
3. If Section 10F applies, does it bar the appeal?
[44] As noted, s. 10F provides that “[a] decision of the Appeals Tribunal on a matter referred to in Section 10E is not subject to appeal, review or challenge in any court.” However, s. 256 of WCA provides for an appeal on questions of law and jurisdiction to this Court, with leave, from a final order, ruling or decision of WCAT. The issue of the impact of s. 10F on this appeal raises two main questions: first, does this appeal relate to “a decision of [WCAT] on a matter referred to in s. 10E” and, if it does, how should we reconcile the apparent conflict between s. 10F barring the appeal and s. 256 permitting it?
[45] Section 10F bars review of WCAT’s decision “... on a matter referred to in section 10E ... .” The section does not affect appeals with respect to matters other than those referred to in s. 10E. One of the issues on this appeal does not relate to a matter referred to in s. 10E. That is the question of whether s. 10E applies to GECA claims. As that is not a matter referred to in s. 10E, s. 10F does not affect the appeal with respect to that issue. However, the issue of whether Mr. Connolly had “ a claim under appeal” does relate to a matter referred to in s. 10E and therefore engages s. 10F. Does it bar the appeal to this Court on that issue?
[46] Both the appellant and the respondent worker submit that it does not. They say that if s. 10F applies to this appeal, it does not bar access to this Court under s. 256 of WCA by virtue of the Court’s reasoning in Queen Elizabeth II Health Sciences Centre v. Nova Scotia (Workers’ Compensation Appeals Tribunal) (2001), 193 N.S.R. (2d) 385 (C.A.). In that case, we held there was a conflict between ss. 29 and 256 of the Act because s. 29 appeared to preclude the appeal provided for by s. 256. We held that this conflict should be resolved by finding that s. 29 did not bar an appeal to this Court under s. 256, but that s. 29 should be treated as a privative clause and given effect in determining the appropriate standard of appellate review. The appellant and the worker submit we should apply the same reasoning here. In other words, they submit that we should resolve the apparent conflict between s. 10F and s. 256 by holding first, that s. 10F does not take away the right of appeal conferred under s. 256, and second, that we should take s. 10F into account in determining the appropriate standard of appellate review. There is no argument to the contrary.
[47] I will follow the reasoning in QEII and hold that s. 10F does not bar the appeal in this case, but that it must be considered in determining the appropriate standard of appellate review.
4. What are the appropriate standards of review?
[48] The reviewing court must in every case determine the applicable standard of review. This is primarily a matter of determining, through statutory interpretation, the Legislature’s intent concerning the respective roles of the Tribunal and the reviewing court. This interpretative exercise follows the pragmatic and functional approach. The inquiry into legislative intent takes place against the backdrop of the courts’ constitutional duty to protect the rule of law and in light of the full context and purpose of the legislation, not simply by reading in isolation the provisions relating to judicial review: Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 at para. 21.
[49] This pragmatic and functional analysis takes account of four contextual factors - the presence or absence of a privative clause or statutory right of appeal; the expertise of the Tribunal relative to that of the reviewing court on the issue in question; the purposes of the legislation and the provision in particular; and, the nature of the question – law, fact, or mixed law and fact. I will review these factors in reverse order.
a. The nature of the question:
[50] The main question here — did Mr. Connolly have a claim under appeal on November 25, 1998 — at least as presented in this case, is a pure question of law turning on the interpretation of the WCA, s. 10E (d). The question is simply what do the words “had a claim under appeal” mean. The legal nature of this question militates in favour of less deference to WCAT’s determination: see e.g. Dr. Q. at para. 34; Nova Scotia (Department of Transportation and Public Works) v. Nova Scotia (Workers Compensation Appeals Tribunal) (2005), 231 N.S.R. (2d) 390; N.S.J. No. 137 (Q.L.)(C.A.) at para. 21; John Ross & Sons Ltd. v. Baigent, [2005] N.S.J. No. 389 (Q.L.) (C.A.) at para. 18.
b. The purpose of the legislation in general and s. 10E in particular:
[51] The overall purpose of workers’ compensation legislation is well known. It aims to give the force of law to the “historic trade off” of rights and obligations. Workers are assured of no fault benefits in exchange for giving up the right to sue. Employers’ receive immunity from suit in exchange for the obligation to contribute to the accident fund: see Pasiechnyk v. Saskatchewan (Workers Compensation Board), [1997] 2 S.C.R. 890 at 915; Nova Scotia (Department of Transportation and Public Works) v. Nova Scotia (Workers Compensation Appeals Tribunal), supra at para. 29. This trade off is given effect in a complex administrative system in which the courts are intended to have a limited role. After all, one of the key purposes of workers’ compensation legislation was to take compensation for injured workers out of the courts.
[52] That brings me to the particular purpose of section 10E. For convenience, I reproduce the section again here:
10E Where a worker
(a) was injured on or after March 23, 1990, and before February 1, 1996;
(b) has chronic pain that commenced following the injury referred to in clause (a); and
(c) as of November 25, 1998, was in receipt of temporary earnings-replacement benefits; or
(d) as of November 25, 1998, had a claim under appeal
(i) for reconsideration,
(ii) to a hearing officer,
(iii) to the Appeals Tribunal, or
(iv) to the Nova Scotia Court of Appeal,
or whose appeal period with respect to an appeal referred to in subclauses (i) to (iv) had not expired, the Board shall pay to the worker a permanent-impairment benefit based on a permanent medical impairment award of twenty-five per cent multiplied by fifty per cent, and an extended earnings replacement benefit, if payable pursuant to Sections 37 to 49, multiplied by fifty per cent and any appeal referred to in clause (d) is null and void regardless of the issue or issues on appeal.
[53] Section 10E does three things. It first identifies a particular “target population” of workers who were injured between the specified dates and who have developed chronic pain. It gives the workers in that group a special permanent impairment benefit without regard to their other individual circumstances or whether they would otherwise qualify. Finally, it makes void any pending appeals in relation to those workers’ claims. It is apparent from reading the section that its purpose is to set up relatively straight forward eligibility requirements for a special benefit for a particular group of workers and to put an end to further adjudication with respect to their claims.
[54] At one level, s. 10E seems to present a straightforward issue of statutory interpretation. However, in light of the history and purpose of the provisions which I shall address in detail later, such a view is much too superficial. Section 10E was designed to address the results of a complicated judicial and legislative history and the resulting serious day to day administrative and financial challenges which the system faced. The question of how s. 10E ought to be interpreted and applied, therefore, goes to the heart of how the system is to function. This tends to support a measure of deference to WCAT.
c. Expertise:
[55] As set out in Dr. Q., the analysis of expertise has three dimensions: the court must characterize the expertise of the Tribunal, consider its own expertise relative to that of the Tribunal and identify the nature of the specific issue before the Tribunal relative to this expertise: at para. 28.
[56] There are various ways in which tribunals may be said to have expertise. Here, the tribunal consists generally of lawyers who acquire expertise in workers’ compensation matters through the continual exercise of their specialized functions. As I said in Halifax Employers’ Association v. Nova Scotia (Workers’ Compensation Appeals Tribunal), [2000] N.S.J. No. 216 (Q.L.) at para. 49, WCAT is highly specialized, dealing on an ongoing and day-to-day basis with the interpretation and application of the Act and Regulations, and policies made under it. Courts, too, however, have considerable expertise in deciding questions of law and in interpreting statutes. While I do not think that, in general, WCAT has markedly greater relative expertise with respect to legal questions arising under the WCA, the tribunal’s specialized functions, in my view, support a measure of deference with respect to certain types of legal questions falling squarely within the tribunal’s specialized functions.
[57] In my view, the specialized functions of WCAT provide it with a particular expertise in understanding the broad context in which these provisions must be interpreted. This suggests that a measure of deference is warranted to the Tribunal’s interpretation of these provisions.
d. Privative clause and right of appeal:
[58] As noted earlier, s. 256 of the new Act provides for an appeal to this Court from WCAT on questions of law and jurisdiction. However, s. 10F provides that a determination of the Tribunal under section 10E “... is not subject to appeal, review or challenge in any court .” As I have already discussed, this apparent conflict may be resolved in the manner set out in the QE II decision: Section 10F should be treated as a privative clause that does not take away the express right to appeal under s. 256 but must be taken into account in considering the applicable standard of appellate review.
[59] There is no doubt that s. 10F is a full privative clause in relation to WCAT’s determinations of matters referred to in s. 10E. This is strong evidence that the Legislature intended that WCAT’s determinations of those matters be accorded the highest level of deference. This is consistent, as well, with the intent that s. 10E provide a summary method of determining eligibility for this special award.
e. Conclusion on standard of review:
[60] Taking all four of the contextual factors into account, I conclude that WCAT’s determination as to whether Mr. Connolly had a claim under appeal within the meaning of s. 10E should be accorded the highest level of deference. Its decision on this point should be reviewed on appeal for patent unreasonableness.
[61] This is, of course, a very severe test. A patently unreasonable decision has been described as “clearly irrational” or “evidently not in accordance with reason” or one in which the defect is immediate and obvious: see, for example, Law Society of New Brunswick v. Ryan,[2003] 1 S.C.R. 247 at para 52; Granite Environmental Inc. v. Nova Scotia (Labour Relations Board), [2005] N.S.J. No. 441 (Q.L.)(C.A.).
5. Did WCAT make a reviewable error when it found that Mr. Connolly had a claim under appeal?
[62] Section 10E confers a benefit if the conditions in the section are met. One of those conditions is that the worker have a claim under appeal. Where the worker meets the conditions, s. 10E provides that the appeal relating to the claim is null and void regardless of the issue or issues on appeal.
[63] WCAT held that s. 10E provides benefits whether the appeal in relation to the claim was initiated by the worker or the employer. The Tribunal said that no matter who initiated the appeal, it was the worker’s entitlement to benefits under the Act that was being adjudicated in that appeal and which kept the worker’s claim “alive” for the purposes of s. 10E benefits.
[64] The appellant says that this finding constitutes reversible error and that a “claim under appeal” refers only to an appeal by the worker, not the employer.
[65] At this point, it will be helpful to provide more detail about the legislative and judicial context in which s. 10E was enacted. Setting out that context makes for a rather long story. However, this is one of those cases in which a page or two of history is worth a volume of theory.
[66] Section 10E was enacted as part of a group of amendments in 1999. At the time, the workers’ compensation system faced a number of challenges. Two of them were a large backlog of unresolved claims and how to respond to chronic pain cases which had arisen before the 1996 legislation came into effect. Section 10E was thus part of a response to specific problems. In particular, it must be understood in the context of two critical judicial decisions and two major legislative changes.
[67] The history of these matters explains the dates found in s. 10E. The first of the judicial decisions and the first of the legislative responses explain the first dates: March 23, 1990 is the date of the decision in Hayden v. Nova Scotia (Workers’ Compensation Appeal Board) (1990), 96 N.S.R. (2d) 108; N.S.J. No. 93 (Q.L.) (S.C.A.D.) and February 1, 1996 is the date that a new WCA substantially came into force. The third date in s. 10E, November 25, 1998, relates to the tabling of the second major legislative change of which s. 10E was a part.
[68] The Hayden case dealt with how the Board was to calculate earnings loss benefits under the statute then in force, Workers’ Compensation Act, R.S.N.S. 1989, c. 509 (now referred to as the “old” or “former” Act). It provided that compensation for permanent partial disability should be based on “... the difference between the net average weekly earnings of the worker before the accident and the net average amount which he is earning or is able to earn ... after the accident ...”: s. 38. However, the Board, apparently since 1911, had been calculating these benefits by applying the percentage of physical disability to the worker’s lost earnings. If, for example, a worker had a 20% disability, he or she would receive an award based on 20% of the earnings loss benefit available for total disability. The Court in Hayden held that this approach was not authorized by the Act . The percentage of physical disability did not necessarily reflect the impact that disability had on the worker’s loss of earnings. The Statute, said the Court, required the award to be based on the loss of earnings not, as the Board was doing it, on the percentage of physical disability.
[69] The Hayden decision created a situation with which the workers’ compensation system as it then existed could not cope. New legislation was required, but it was slow in coming. In the meantime, compensation was awarded on the basis of interim wage loss policies. The Court has been advised on a number of occasions that no one ever received benefits calculated as Hayden held they ought to have been.
[70] That brings me to the first of the two important legislative developments. The new legislation came into force (with some exceptions) on February 1, 1996. The WCA contained intricate transitional provisions and regulations designed to deal with the backlog of cases which had built up while the system had been in flux. These transitional provisions are challenging to interpret and led to a significant amount of litigation reflecting those interpretative difficulties.
[71] For present purposes, the most relevant of the transitional provisions is s. 228. It addressed permanent impairment awards for workers who were injured between the now familiar dates of March 23, 1990 (the date of Hayden) and the date the new Act substantially came into force (February 1, 1996). It applies, not only to workers who were receiving permanent impairment compensation, but also to workers who were entitled to receive them and deemed that compensation awarded between the familiar dates “... to be and always to have been awarded in accordance with the former Act.” For convenience, the full text of s. 228(1) and (2) follows:
228 (1) Subject to subsection (2), where a worker
(a) was injured on or after March 23, 1990, and before the date this Part comes into force;
(b) suffered a permanent impairment as a result of the injury; and
(c) at the date this Part comes into force, is receiving or is entitled to receive compensation for permanent partial disability or permanent total disability as a result of the injury,
the compensation awarded between March 23, 1990, and the date this Part comes into force is deemed to be and always to have been awarded in accordance with the former Act.
(2) The Board shall recalculate the amount of compensation payable to the worker in accordance with Sections 34 to 58.
[72] Section 228 of the new Act gave rise to the second critical judicial decision, Doward v. Nova Scotia (Workers’ Compensation Board) (1997), 160 N.S.R. (2d) 22; N.S.J. No. 171 (Q.L.) (C.A.). It concerned a worker with chronic pain who fell within the “window period” set out in s. 228. The Court held that, for workers such as Ms. Doward who fell within the window period, the question of permanent impairment should be determined on the basis of the law which had been applicable during that period. In other words, the former Act continued to apply to those cases: para. 116. The Court also pointed out, agreeing with the Tribunal, that nothing under the former Act precluded compensation for chronic pain resulting from a work place injury: para. 119.
[73] This holding potentially placed workers with chronic pain in markedly different positions depending in part on whether they had been injured during or after the window period. For those injured after the window period, the Board under the new Act created Permanent Medical Impairment Guidelines (“PMI Guidelines”) which effectively precluded permanent awards for chronic pain. The PMI Guidelines, in a case like Ms. Doward’s, provided that there could be no permanent award because she had no significant objective abnormalities on examination: para 101. In addition, the Functional Restoration Program (“FRP”) Regulations created under the WCA effectively limited compensation for chronic pain (as defined in the Regulations) for up to four weeks of a functional restoration program. However, Doward held that the new Act did not authorize the Board to apply either the PMI Guidelines or the FRP Regulations to workers falling within the s. 228 window period. Their entitlement to compensation, as provided for under the former Act, was preserved. Considering the text of s. 228 and the principle of interpretation against interfering with vested rights, the Court held that “It was never intended that ... persons in the position of [Ms. Doward] should have their award altered or eliminated by the use of rating schedules, policies or regulations created under the current Act. ”: para. 135; see also paras. 139 - 142.
[74] At the risk of oversimplification, the result of this was that workers falling within s. 228 who had chronic pain could be considered as having vested rights to compensation without the constraints of the PMI Guidelines or the FRP Regulations created under the new Act. (This in itself is a complex issue. My purpose here is to set context, not to revisit or elaborate on the extensive jurisprudence in the area.) The approach to chronic pain envisioned under the new legislation, therefore, did not resolve this group of chronic pain cases. Meanwhile, the backlog of appeals continued to be a great source of concern.
[75] The Legislature acted again with a package of amendments which included s. 10E. This legislation, generally referred to as “Bill 90", followed the work of a Select Committee of the Legislature which reported, and advanced draft legislation, in November of 1998. It is apparent that these amendments were introduced against a backdrop of a workers compensation system in crisis and an appeals process that had nearly broken down. As the Select Committee pointed out in its report, the backlog at WCAT as of November 1, 1998 was 2534 appeals. It observed that “... extraordinary measures ... must be undertaken to reduce and ultimately eliminate the appeals backlog.”: p. 8.
[76] Section 10E appears to have its origin in the Select Committee’s report and the attached draft legislation. It seems to be aimed at addressing both the difficult questions of vested rights as discussed in Doward and the backlog. The purpose of s. 10E appears to have been to capture all “active ” claims in the system with respect to workers injured on or after March 23, 1990 and before February 1, 1996 and who had developed chronic pain following their injuries. (The dates, of course, coincide with the so-called window period referred to in s. 228 which in turn derive from the date of the decision in Hayden and the date on which the new legislation substantially came into force.) The apparent intent was that those affected by s. 10E would be a clearly identifiable group whose claims had not yet been fully determined.
[77] From this, I conclude that the purpose of s. 10E was to provide a benefit to injured workers with chronic pain who, by virtue of our decision in Doward, could have been considered to have had a vested right to consideration of their claims in accordance with the former Act and without the limitations in the PMI Guidelines and the FRP Regulations under the 1996 legislation. I infer that it was also a purpose of these provisions to provide a summary method of determining claims still in the system in relation to chronic pain that fell within the Doward “window period.” The purpose of the 1999 amendments was to make it clear that henceforth chronic pain was not compensable other than through the FRP Regulations and to summarily provide a solution to the cases which Doward had held could not be resolved by applying the former FRP policy. Section 10E was intended to set up a method by which the claims of this group of workers with chronic pain could be resolved administratively and in a straight-forward way without the need for further adjudication.
[78] Despite the general exclusion with respect to chronic pain, s. 10E shows that, in light of the discussion in Doward regarding the legal situation applicable to workers injured on or after March 23, 1990 and before February 1, 1996, the Legislature was concerned to provide limited coverage for claims not resolved by November 25, 1998. These workers could be seen as having had some expectation of eligibility for workers’ compensation benefits while the former Act was in force, even though they had no measurable permanent medical impairment.
[79] Another purpose of s. 10E is evident from observing that ss. 10E(c) and (d) refer to types of claims in a relatively unsettled state. In the absence of s. 10E, further adjudication would likely be required before these claims could be resolved. To avoid lengthy adjudication and to further reduce the existing backlog of claims, s. 10E resolved claims in the defined group in a summary manner with an award of limited benefits.
[80] Returning to the text of s. 10E, the question is whether WCAT’s conclusion that Mr. Connolly had a “claim under appeal” was patently unreasonable. In my view it was not.
[81] There are plausible arguments to be made on both sides of this issue, as the capable submissions presented to us demonstrate. There is considerable good sense behind the appellant’s argument that, in ordinary parlance, to say that the worker had a claim under appeal suggests that the worker must be the one appealing. On the other hand, there is also a good deal to be said for the approach taken by the worker and WCAT.
[82] One implication of the employer’s position is that only workers’ appeals are made void under the closing words of s. 10E. However, it seems implausible that the Legislature could have intended to bar workers’ appeals but allow employer appeals on the same subject matter to proceed. This would seem not only to be unfair to workers, but also contrary to one of the main purposes of the amendments, that is, to clear away the backlog of unresolved cases without the need for further adjudication. This, as I understand it, was also the point made by WCAT in accepting the worker’s position.
[83] WCAT’s order was for a reconsideration of the worker’s claim. Notwithstanding that this order derived from an employer’s notice of appeal, the result was that the worker was entitled to re-advance his claim on the remittal to the Hearing Officer. The employer’s argument, accepted by the Hearing Officer, was that the legislature could not have intended to void an employer’s appeal in return for the prescribed benefits to the worker. WCAT disagreed and, in my view, WCAT’s conclusion is not unreasonable. The employer’s appeal here resulted in WCAT’s June 29, 1999 order that a hearing officer “reconsider” the worker’s claim. It is not unreasonable to conclude, as WCAT did, that an advancement or re-advancement of a claim by a worker is precisely what s. 10E intended to capture in return for the prescribed benefits.
[84] While it might be said that the appellant’s interpretation sits better with the words used in s. 10E, it may equally be said that WCAT’s interpretation is reasonably supportable by those same words and better serves the apparent legislative intent underlying them.
[85] I am relieved of the duty of deciding which of these views is the better one. They are both plausible and are supported by reasons. Under the patent unreasonableness standard, the tribunal’s decision is upheld if the tribunal’s conclusion is rational. It does not matter that there may be other rational, or even preferred, conclusions: Ryan, para. 47-55; Granite, para. 43. It follows that WCAT’s conclusion is not patently unreasonable and that its interpretation must not be disturbed on appeal.
6. Was the claim in Section 10E in relation to chronic pain?
[86] We have held that the “claim” referred to in s. 10E must be understood as referring to a claim in respect of chronic pain: Lloyd v. Nova Scotia (Workers’ Compensation Appeals Tribunal) (2002), 201 N.S.R. (2d) 368; N.S.J. No. 40 (Q.L.) (C.A.). In that case, the Board took the position that s. 10E applied to any person injured in the window period who had developed chronic pain following that injury and who had an appeal about anything pending in the system as of November 25, 1998. The Court rejected this argument. The s. 10E benefit was directed to those with unresolved window period claims who had developed chronic pain. The Court reasoned that it was doubtful the Legislature intended to take away every appeal of every possible claim a worker had, even if not related to chronic pain, in exchange for a special chronic pain benefit: at para. 28. Rather, held the Court, s. 10E (a) and (b) “... qualify the appeals referred to in s-s. 10E (d). The “claim under appeal ... is one relating to such a claim.”: para. 28. As the Court pointed out, “... it would be difficult to think that the Legislature would remove a worker’s right of appeal in other claims ... just because the worker was eligible for the new benefit for chronic pain following an injury in the window period”: para. 29. It follows from Lloyd that the “claim” referred to in section 10E (d) must be one “in relation to chronic pain” as held in Lloyd.
[87] Neither the Board nor WCAT addressed this issue. While it involves the application of s. 10E and the principle of Lloyd, it is primarily a question of fact. I would remit the matter to the Board for determination of this question.
VI. DISPOSITION:
[88] I would allow the appeal to the limited extent of remitting the matter to the Board to determine whether the claim under appeal was in relation to chronic pain.
[89] I would be remiss if I did not express my appreciation to counsel for their helpful and thorough submissions, both at the hearing and in the post-hearing briefs which we requested of them.
Cromwell, J.A.
Concurred in:
Hamilton, J.A.
Fichaud, J.A.