Date: 19980204 Docket: C.A. 136291
NOVA SCOTIA COURT OF APPEAL
Cite as: Roberts v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 1998 NSCA 27
Clarke, C.J.N.S.; Hallett and Chipman, JJ.A.
BETWEEN:
LINDA ROBERTS, Workers' Compensation ) Kevin Deveaux
Claimant (Claim No. 5023150) ) Christina M. Lazier
) for the Appellant
Appellant )
- and - )
) Jonathan Davies
THE WORKERS' COMPENSATION ) for the Respondent
APPEALS TRIBUNAL OF NOVA SCOTIA ) Appeals Tribunal
and THE WORKERS' COMPENSATION )
BOARD OF NOVA SCOTIA )
) John R. Ratchford
Respondents ) for the Respondent Board
)
)
) Appeal Heard:
) February 4, 1998
)
) Judgment Delivered:
) February 4, 1998
)
)
)
THE COURT: Appeal allowed from the decision of the Workers' Compensation Appeals Tribunal and the matter remitted to the Tribunal, per reasons for judgment of Clarke, C.J.N.S.; Hallett and Chipman, JJ.A, concurring.
CLARKE, C.J.N.S.:
The issue in this appeal is whether the Workers' Compensation Appeals Tribunal (the Tribunal) erred in its decision dated February 14, 1997 by denying the appellant's appeal for a permanent partial disability benefit.
On June 11 1990, Ms. Roberts, while working as a fish trimmer, slipped on a piece of fish while lifting a twenty pound pan of fish from a conveyor belt. She struck her elbow on a metal table. She has been unable to return to work since June 12, 1990 due to variously described complications in her neck, elbow and hand. She complains of a chronic pain disorder. She received temporary total disability benefits from June to August, 1991, and again from September 6, 1991 until July 13, 1992.
The appellant asserted that she is entitled to a permanent partial disability award under s. 45. This refers to what has become known as the former Workers' Compensation Act, being R.S.N.S. 1989, c. 508. The current Act, S.N.S. 1994-95, c. 10, was proclaimed effective February 1, 1996. The former Act was repealed. Workers' Compensation Transitional Appeal Regulations (the Regulations) were approved and filed.
The facts giving rise to the appellant's claim fall within the transitional time frame provided in s. 228(1) and (2) of the current Act.
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.
The appellant was injured on June 11, 1990, being after March 23, 1990 and before the Part came into force on February 1, 1996. This has come to be referred to as the "window period". On October 24, 1995, the Hearing Officer decided the appellant was not entitled to a permanent medical assessment to determine whether she was eligible for a permanent partial disability award. This decision was appealed to the Tribunal. In denying the appellant's appeal, the Appeal Commissioner concluded:
I find it a reasonable inference, on the evidence which was or ought to have been before the Hearing Officer, that the Appellant has a permanent medical impairment and a permanent partial disability. I also find that the Hearing Officer's decision was patently unreasonable in failing to draw that inference.
On the merits, and taking into consideration all of the evidence which was before me, I conclude that the Appellant does not demonstrate sufficient objective findings to satisfy the Board's Guidelines for Assessment of Permanent Medical Impairment. In view of the fact that Board Policies No 3.3.1 and 3.3.2, in conjunction with s. 183 of the current Act, mandate a determination of PMI prerequisite to a finding of permanent partial disability, I am unable to award benefits to the Appellant.
Leave has been granted to appeal the decision of the Tribunal to this Court.
Significant to the disposition of this appeal is the decision of this Court in Doward v. Workers' Compensation Board (N.S.) (1997), 160 N.S.R. (2d).
For workers injured during the "window period", this Court held in Doward that they are entitled to have their claims adjudicated under the provisions of s. 228 of the current Act.
We refer to the following excerpts from the decision of Justice Chipman, in Doward:
Page 42, para. 113:
[113] The Board's position is that s. 228(1) is limited in application to those already awarded compensation prior to February 1, 1996. Such a position is inconsistent with the words "or is entitled to receive compensation" in s. 228(1)(c). If the Legislature had intended that s. 228 was restricted to those already awarded compensation, it could so easily have said so.
Page 42, para. 114:
[114] Section 228 speaks of compensation awarded between March 23, 1990 and February 1, 1996. No compensation respecting permanent disability was awarded to the appellant in that time frame, and the question is whether s. 228 of the Act should be read to apply to compensation which should or could or would have been awarded during that time. On consideration, I interpret the expression to apply to compensation that could have been awarded to a worker injured during the period March 23, 1990 to February 1, 1996 by the Board during that window period. This view is reinforced by the provisions of the Interpretation Act and the presumptions against retroactivity and interference with vested rights: Dreidger, supra, p. 508, et seq. The Board heard the appellant's claim during the window period. In my opinion, s. 228 mandates the Tribunal to address what the hearing officer should have done, and since the hearing officer was dealing with the matter during the window period, the compensation should be awarded in accordance with the former Act.
Page 43, para. 118:
[118] The question of permanent impairment should be determined on the basis of the law which was applicable during the window period of March 23, 1990 to February 1, 1996. This is dealt with in s. 228. The only modification is the recalculation process referred to in s. 228(2).
Page 44, para. 124:
[124] ... Section 228 is a transitional provision which provides a code for dealing with cases of workers who were injured between March 23, 1990 and February 1, 1996. Simply because the Tribunal is, generally, governed by the entire Act does not entitle it to apply sections therein which are contradictory to the legislative intention respecting transitional cases. The PMI Guidelines are only applicable if they are authorized by the transitional provisions of the current Act.
Page 47, para. 137:
[137] In the result, I am of the opinion that the Tribunal has erred in jurisdiction in applying s. 183 of the current Act and in applying Policy 3.3.2. The matter should be remitted to the Tribunal to decide the appeal, and in particular whether there was a permanent impairment as a result of the injury, according to the provisions of the former Act and s. 228 of the current Act, including the provisions for recalculation.
Page 48, para. 142:
[142] Again, in view of the fact that the Legislature has specifically enacted transitional provisions which incorporate the former law, it would defeat their purpose to make applicable to cases falling within them other provisions of the Act such as s. 184. Like s. 183 it is not applicable to cases falling within s. 228 of the current Act. The presumption against retroactivity set out in the Interpretation Act applies. Regulations and policies enacted pursuant to the former Act are what must be applied.
Doward also responds to the issue whether s. 183 of the current Act applies retroactively to cause policy guidelines, such as 3.3.1 and 3.3.2 to be applied to claims falling within s.228 of the current Act.
We refer to Chipman, J.A. in Doward at p. 44, para. 124:
[124] In my opinion, the Tribunal erred in a patently unreasonable manner in holding that s. 183 was applicable to cases falling within s. 228. Section 228 is a transitional provision which provides a code for dealing with cases of workers who were injured between March 23, 1990 and February 1, 1996. Simply because the Tribunal is, generally, governed by the entire Act does not entitle it to apply sections therein which are contradictory to the legislative intention respecting transitional cases. The PMI Guidelines are only applicable if they are authorized by the transitional provisions of the current Act.
In our opinion, for claims that fall within the window period, this is the interpretation to be given to the application of the policy guidelines upon which the Tribunal relied. In our opinion, the Tribunal made a jurisdictional error and following Doward, the appeal is allowed.
The appellant raises the question of the standard of review to be applied to issues arising on appeal from the Tribunal to this Court and from the Hearing Officer to the Tribunal.
Our response is to agree with and quote the positions taken by this Court in Doward. First, with respect to an appeal from the Tribunal to this Court we refer to that stated by Chipman, J.A. in Doward at p. 31, para. 47:
[47] On the limited appeal from the Tribunal to this Court, a jurisdictional error appears if the Tribunal incorrectly interprets provisions of the current Act limiting its appellate jurisdiction. A jurisdictional error also appears if the Tribunal errs in a patently unreasonable manner in resolving a question of law within its jurisdiction.
Second, with respect to an appeal from the Hearing Officer to the Tribunal we refer again to Doward at p. 31, para. 46:
[46] ... the power of the Tribunal on appeal from the hearing officer is broad, akin to an appeal from a trial judge to an appeal court.
The result of this appeal is that we order the matter remitted to the Tribunal to decide whether the appellant is entitled to permanent partial disability benefits under the provisions of s. 228 of the current Act by applying the law as stated by this Court in Doward.
C.J.N.S.
Concurred in
Hallett, J.A.
Chipman, J.A.
C.A. 136291
NOVA SCOTIA COURT OF APPEAL
BETWEEN:
LINDA ROBERTS, )
Workers' Compensation Claimant )
(Claim No. 5023150)
)
Appellant ) REASONS FOR
) JUDGMENT BY:
)
THE WORKERS' COMPENSATION ) CLARKE, C.J.N.S.
APPEALS TRIBUNAL OF NOVA )
SCOTIA and THE WORKERS' )
COMPENSATION BOARD OF )
NOVA SCOTIA )
)
)
Respondents )
)
)
)