Court of Appeal

                           NOVA SCOTIA COURT OF APPEAL

Citation: Pelley v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2008 NSCA 46

Date: 20080515

Docket: CA 286420

Registry: Halifax

Between:

Angela Pelley

Appellant

v.

Nova Scotia Workers’ Compensation Appeals Tribunal and

the Workers’ Compensation Board of Nova Scotia

Respondents

Judge:                   The Honourable Justice Thomas Cromwell

The Honourable Justice Joel Fichaud (Dissenting)

Appeal Heard:      April 2, 2008

Subject:                 Workers’ Compensation - Earnings-replacement benefits - when payable beyond age 65

Summary:             The Workers’ Compensation Act, S.N.S. 1994-95, c. 10, as am. provides for earnings-replacement benefits for earnings losses resulting from injuries. Generally these benefits end when the worker turns 65.  However, the Act also provides that if the worker is 63 years or older “at the commencement of the worker’s loss of earnings”, the Board may pay benefits for up to 24 months.

The worker suffered earnings loss before she turned 63 but then suffered a recurrence of earnings loss from the same injury after she turned 63.  The Board and WCAT decided that her earnings-replacement benefits ended when she turned 65.  They reasoned that “the commencement” of her earnings loss refers only to an initial loss of earnings resulting from an injury and not to a recurrence of earnings loss from the same injury.  The workers was granted leave to appeal.

Issue:                    Does the Act require the worker’s earnings-replacement benefits to end at age 65?                             

Result:                  Appeal allowed, Fichaud, J.A. dissenting.  The majority was of the view that “the commencement” of a period of earnings loss occurs when earnings loss, whether initial or recurring, begins.  The minority was of the view that “the commencement” of the worker’s earnings loss refers only to the beginning of an initial and not to a recurring earnings loss.