Court of Appeal

NOVA SCOTIA COURT OF APPEAL

Citation: McGrath v. Nova Scotia (Workers’ Compensation Board), 

2013 NSCA 37

Date: 20130320

Docket: CA 359340

Registry: Halifax

Between:

Hyler W. McGrath

Appellant

v.

Workers’ Compensation Board, Workers’

Compensation Appeals Tribunal, Attorney General of Nova Scotia

Respondents

Judge:                  The Honourable Mr. Justice Jamie W.S. Saunders

Appeal Heard:      November 28, 2012

Subject:                Left Ankle Injury.  Claim for Earnings-Replacement Benefits and Medical Aid. Workers’ Compensation Act, S.N.S. 1994-95, c. 10, as amended. Standard of Review. Causation. Burden of Proof. Corroboration.  Proper Application of s. 187 (the tie-breaker” provision).

Summary:             Worker appealed the rejection of his claim for temporary earnings-replacement benefits and medical aid following an injury to his left ankle in 1997 after a fall at a construction site.  He said the Tribunal erred in requiring “corroboration” of his testimony that his left ankle troubles and subsequent surgeries were attributable to the 1997 injury, and failing to properly interpret or apply s. 187 of the Act which mandates that any doubt is to be resolved in the worker’s favour.

Held:                     Appeal dismissed.  While the expression “corroborate” was an unfortunate choice of words, the WCAT did not err in its assessment of the evidence or application of the law to the issues that arose in the worker’s case.  A decision-maker can always look to the record for corroboration, in the sense of determining what evidence there is to support or bolster the worker’s claim, or the contrary position.  After a careful review of the appellant’s testimony and the rest of the documentary record, the WCAT was not persuaded that the necessary causal connection had been established between the fall in 1997 and the worker’s surgeries in 2000 and 2008.  A s. 187 analysis is not required in every case.  The Court explained how the “tie-breaker” function of s. 187 is triggered and, when it is, how it ought to be properly applied.  Here, the evidence linking the worker’s claim to the 1997 mishap had not risen to the level that it was evenly balanced with the evidence to the contrary.  Thus, the application of s. 187 became irrelevant.

                             The Tribunal’s decision and the reasoning which led to it met the standard of reasonableness.