This case concerned an employee who sustained a workplace injury and was granted a 5% permanent medical impairment as a result. Over twenty years later, additional medical information indicated that the employee’s injuries were more severe than originally appreciated. The employee thus sought a reconsideration of his original claim and an increase to his permanent medical impairment. The tribunal would not reconsider the original claim. The Court remitted the decision back to the tribunal for reconsideration. The Court found that the tribunal erred in its consideration of the criteria for new evidence, for reconsideration purposes, and summarized the appropriate test for the introduction of new evidence for reconsideration purposes.

Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Benefits – Judicial review –  Evidence – Fresh evidence – admissibility

Drake v. Nova Scotia (Workers’ Compensation Appeals Tribunal), [2012] N.S.J. No. 25, 2012 NSCA 6, Nova Scotia Court of Appeal, January 23, 2012, J.E. Fichaud, D.R. Beveridge and D.P.S. Farrar JJ.A.

The appellant employee, a former underground mine industrial electrician, sustained a workplace injury in 1987. In 1988, he was granted a 5% permanent medical impairment (“PMI”) for the injuries sustained in the accident. The appellant appealed his 5% PMI rating to a hearing officer of the Worker’s Compensation Board (“WCB”). His appeal was dismissed. He then appealed that decision to the Worker’s Compensation Appeals Tribunal (“WCAT”), but that appeal was also dismissed.

In 2009, the employee adduced additional medical information indicating that he sustained more severe symptoms that originally appreciated. He sought to have his original claim reconsidered in order to increase his PMI rating. The claims adjudicator determined that the employee’s original claim would not be reconsidered, but awarded the employee a 20% PMI rating for his condition, retroactive to August 2008. The claim’s adjudicator’s decision was appealed to a hearing officer on the basis that the adjudicator erred in failing to consider the additional information as “new evidence”. The appeal was dismissed. The employee then appealled that decision to the WCAT on the basis that: (a) the additional information submitted was new evidence which entitled the employee to a reconsideration of his original 5% PMI and (b) the effective date for the 20% PMI ought to have been sometime in 1988. The WCAT held that the additional information was “inconsequential” and would not impact the final decision and the August 2008 effective date was reasonable and appropriate. The employee appealed the WCAT’s decision to the Nova Scotia Court of Appeal. The issues before the Court was: (1) whether the WCAT erred in failing to apply the proper test for reconsideration, (2) whether the WCAT erred in finding that a judgment rating was not warranted for the appellant’s condition and (3) whether the WCAT erred in upholding the determination that the effective date of the increase to his PMI rating should be August 2008.

The Court allowed the appeal in part. Regarding issue (1), the Court held that the WCAT erred in its consideration of the criteria for new evidence and thus found the decision to be unreasonable. The Court summarized the twofold test for the introduction of new evidence. The Court stated that the evidence submitted must be new evidence, in the sense of not being a reiteration of old evidence, and not available at the time of the original decision and must be capable of impacting on the original decision. If the new information fulfills the said criteria, then it is to be scrutinized, along with the evidence already on file, to determine whether the totality of the evidence justifies altering the original decision.

Regarding issue (2), the Court found that the WCAT applied the proper test for determining whether a judgment rating was appropriate, and properly considered the available medical opinions. Regarding issue (3), since the Court determined that WCAT failed to apply the proper test to reconsideration of the appellant’s new evidence and ordered a reconsideration of the appellant’s original claim based on the introduction of new evidence, the Court declined to address this ground of appeal at this time.

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