Court of Appeal

Judge:

The Honourable Justice David P.S. Farrar

Appeal Heard:

October 4, 2017, in Halifax, Nova Scotia

Subject:

Workers’ Compensation Law.  Interpretation of Workers’ Compensation Act, S.N.S. 1994-95, c. 10; whether Board Policy is inconsistent with the Act. Compensation for noise-induced hearing loss.

Summary:

This came to the court by way of Stated Case.  Mr. Surette was employed as a shipwright for 50-55 years. He retired in December of 2007.  In 2015, Mr. Surette had an audiogram which suggested he had occupational noise-induced hearing loss.  He applied for workers’ compensation benefits.  His claim was denied by a hearing loss adjudicator.  He appealed to a hearing officer.  That appeal was also denied.  He then appealed to WCAT.  WCAT found that Mr. Surette was, in all other respects, entitled to be adjudicated for noise-induced hearing loss.  However, a Board Policy required him to have an audiogram within five years of having left his employment. He had not done so.  Therefore, on the plain wording of the policy he was not entitled to be adjudicated for noise-induced hearing loss.

WCAT stated a case to the Court of Appeal asking it to determine whether the Board Policy was inconsistent with the Act.

Issues:

Was the Board Policy which required Mr. Surette to have an audiogram within five years of leaving his employment inconsistent with the Act?

Result:

The Board Policy was inconsistent with the Act.  The Act sets out a statutory scheme for payment of compensation for occupational diseases such as noise-induced hearing loss.  The imposition of the five-year audiogram rule was contrary to the express provisions of the Act.