Date: 19980204 Docket: C.A. 136657
NOVA SCOTIA COURT OF APPEAL
Cite as: Weldon v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 1998 NSCA 28
Clarke, C.J.N.S.; Hallett and Bateman, JJ.A.
BETWEEN:
GEORGE WELDON, Workers' Compensation ) K. H. LeBlanc
Claimant (Claim No. 1493421) ) 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 Bateman, JJ.A, concurring.
CLARKE, C.J.N.S.:
This appeal, for which leave was granted, is from the decision of the Workers' Compensation Appeals Tribunal (the Tribunal) dated March 6, 1997. It refused the appellant's application for an award of permanent partial disability. The issue is whether the Tribunal erred on a question of jurisdiction.
Mr. Weldon, the appellant, worked at Michelin Tires for eighteen years. He was a production worker engaged in heavy manual labour. He was unable to continue due to tendonitis in his shoulder, wrists and elbow. The Workers' Compensation Board (the Board) accepted January 8, 1992 as the date of his accident. Pursuant to the Workers' Compensation Act, R.S.N.S. 1989, c. 508 (the former Act), the Board awarded Mr. Weldon temporary total disability benefits and vocational rehabilitation assistance for various periods during 1992 through to 1994. These benefits terminated on August 19, 1994.
Mr. Weldon sought permanent partial disability benefits pursuant to s. 45 of the former Act. In the intervening period, the current Act, S.N.S. 1994-95, c. 10, was proclaimed effective February 1, 1996. The Workers' Compensation Transitional Appeal Regulations (the Regulations) were approved and filed. The former Act was repealed. On July 17, 1995, the Hearing Officer denied the appellant's claim for a permanent partial disability. It was taken on appeal to the Tribunal. On March 6, 1997, the Tribunal dismissed the appeal and thereby disallowed Mr. Weldon's claim. The Appeal Commissioner wrote:
I find that the Hearing Officer erred in his decision of July 17, 1995, pursuant to s. 243(7)(c) and (e) (ii) of the Act and in particular with respect to his interpretation of s 45 of the former Act and his weighing and interpretation of the medical evidence contained on the Appellant's file with respect to the operation of s. 24 of the former Act.
I am unable to award a permanent medical impairment award to the Appellant as it relates to his work-related injury to his shoulder, elbows and wrists.
Consequently, the Appellant's appeal is disallowed in that I am unable to conclude that he is entitled to a permanent partial disability award in keeping with the Board's PMI Guidelines.
The PMI Guidelines to which the Commissioner refers came into place under the current Act. This appeal to the Court from the Tribunal relates to s. 228(1) and (2) of the current Act. They provide:
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 circumstances underlying this appeal fall within what Chipman, J.A. described in Doward v. Workers' Compensation Board (N.S.) (1997), 160 N.S.R. (2d) 22, as being the 'window period' between March 23, 1990 and February 1, 1996.
He wrote at p. 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).
He continued at p. 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.
Respecting s. 228 of the current Act, Justice Chipman stated at p. 42, para. 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.
In our opinion, the decision of this Court in Doward applies to this appeal and determines its result. The circumstances here fall within the window period. The interpretation placed upon s. 228 of the current Act in Doward applies. The result is that the Tribunal made a jurisdictional error.
The appeal is allowed. The matter is remitted to the Tribunal to decide whether as a result of the injury 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.
Bateman, J.A.
C.A. 136657
NOVA SCOTIA COURT OF APPEAL
BETWEEN:
GEORGE WELDON )
Workers' Compensation Claimant )
(Claim No. 1493421) )
)
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 )
)
)
)