Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Workers compensation – Benefits – Loss of earnings – Transferable skills – Test – Judicial review – Evidence – Compliance with legislation
Young v. Nova Scotia (Workers’ Compensation Appeals Tribunal),  N.S.J. No. 157, Nova Scotia Court of Appeal, April 15, 2009, J.W.S. Saunders, M.J. Hamilton and J.E. Fichaud JJ.A.
Young injured his back on the job in 1996. He received temporary earning replacement benefits from June 1996 to February 1997, when the Workers’ Compensation Board (the “Board”) began providing him with vocational rehabilitation services and benefits. These services and benefits were discontinued in October 1997 by the Board’s vocational rehabilitation counsellor. The counsellor denied Young’s request for reconsideration and both a hearings officer and the Appeals Tribunal denied his appeal. The Tribunal was not satisfied Young lacked transferable skills to work in the field of electrical sales. It noted he had the required diploma and field experience, if not the sales experience. The Board’s medical examiner examined Young in 1997 and recommended an 11% permanent medical impairment. Young also requested reconsideration of this decision and his case manager denied the request in 1998. Young applied for extended earnings replacement benefits and the case manager decided he was not entitled to such benefits. The Tribunal dismissed his appeal of this decision finding the occupation of Technical Sales Specialist was suitable and reasonably available to Young at a salary exceeding that which he earned prior to his back injury. Young sought a reassessment of his level of permanent medical impairment in 2002 but the application was denied. His appeal to a hearing officer was denied but the Tribunal ultimately allowed his appeal in part and a new medical examination was ordered which resulted in an increase in his rating to 20%. A Board adjudicator subsequently determined in August 2006 that Young did not have chronic pain and found that he was not entitled to chronic pain benefits. The Board’s case manager subsequently decided Young was entitled to extended earnings replacement benefits as of January 2003 and Young sought an earlier entitlement. Young’s appeal from this decision was consolidated by the Tribunal with his appeal from the finding he lacked chronic pain. The Tribunal found he did in fact have an element of chronic pain and was entitled to pain-related impairment rating effective January 1997 but rejected his request for an earlier effective date for his extended earnings replacement benefits. It found that it was not until Young underwent surgery and his disk herniation was discovered that he was rendered unable to work. The Tribunal accepted the medical evidence that Young had a disk problem from the time of his injury in 1996 but refused to find this rendered him unable to work since then. The Tribunal refused to award Young further extended earnings replacement benefits and Young appealed.
The Court dismissed Young’s appeal. The Court held that there was evidence capable of supporting the Tribunal’s finding that Young was able to work after his 1996 injury. Young was asking the Court to conclude, based on other evidence, that the Tribunal should have made a different finding. This would stray beyond the constraint of the legislation, which allowed appeals on the issues of law only. The reassessment of Young’s level of chronic pain was not a basis for the Tribunal to reconsider its prior decision on Young’s entitlement to extended earnings replacement benefits. It was clear that the Tribunal was aware Young was suffering from chronic pain at the time it made its decision and the quantification did not add materially to the prior body of evidence under consideration.
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