The appeal by Page from a decision of the Appeals Tribunal of the Workplace, Health, Safety and Compensation Commission of New Brunswick (the “Commission”) was allowed where the Court found that the Appeals Tribunal made a palpable and overriding error in upholding the Commission’s decision to reopen and reject Page’s claim for benefits

28. November 2006 0

Administrative law – Workers Compensation – Benefits – Decisions of administrative tribunals – Workers Compensation Boards – Judicial Review – Statutory provisions – Evidence – Jurisdiction

Page v. New Brunswick (Workplace Health, Safety and Compensation Commission), [2006] N.B.J. No. 394, New Brunswick Court of Appeal, September 21, 2006, W.S. Turnbull, J.Z. Daigle and J.T. Robertson JJ.A.

In 1997, Page filed a claim for Workers’ Compensation benefits claiming that he became disabled after being exposed to two toxic chemicals used to de-ice air planes. The Commission rejected Page’s claim and accepted the Employer’s contention that exposure to de-icing agents would not bring about the disability for which benefits were being claimed. In 2004, the Appeals Tribunal determined otherwise and Page was consequently awarded benefits equal to the amount that should have been paid over the seven years following the filing of his claim. Eight years after the Appeals Tribunal rendered its decision, the Commission terminated Page’s benefits. Relying on an expert’s opinion letter, the Commission concluded that there was no objective evidence to support the continuation of Page’s claim. Page appealed to the Appeals Tribunal a second time, arguing that the Commission lacked jurisdiction to discontinue payment of his benefits. The Appeals Tribunal found in favour of the Commission. Page appealed the decision of the Appeals Tribunal to the Court of Appeal.

The Court of Appeal held that the Appeals Tribunal made a palpable and overriding error in failing to appreciate the true basis on which the Commission’s expert provided the opinion that Page’s medical condition could not be attributed to his exposure to de-icing agents. Specifically, the expert relied upon by the Commission never accepted that Page had suffered any work-related injury as a result of his exposure to de-icing agents and did not provide an opinion that Page had suffered an injury that had dissipated over time. This was a critical point, as under s.22 of the Workplace Health, Safety and Commission Act, the Commission was not entitled to revisit the causality findings of the Appeals Tribunal unless “new evidence” was adduced that would substantially affect the matter. In this case, the only evidence adduced by the Commission to support the change in the causality finding of the Appeals Tribunal was a letter of its expert who, in essence, disagreed with the findings of another expert whose evidence was accepted by the Appeals Tribunal when rendering its original decision. That did not constitute “new evidence” within the meaning of s.22 of the Act.

In the result, Page’s appeal was allowed, with costs.

To stay current with the new case law and emerging legal issues in this area, subscribe here.