The Appellant employer was successful in seeking an appeal relating to a decision by Workers’ Compensation Appeals Tribunal (the”WCAT”) awarding the Respondent an increased permanent impairment benefit (the “PMI”)

22. July 2014 0

Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Policies – Workers compensation – Occupational disease — Benefits – Statutory provisions – Judicial review – Evidence – Compliance with legislation

Enterprise Cape Breton Corp. v. Anderson, [2014] N.S.J. No. 286, 2014 NSCA 59, Nova Scotia Court of Appeal, June 10, 2014, M. MacDonald C.J.N.S., L.L. Oland and D.P.S. Farrar JJ.A.

The Respondent, Roy Anderson, an underground coal miner, was diagnosed with pneumoconiosis and awarded a 30% PMI effective February 16, 2012, by WCB. The Respondent appealed this decision to Workers’ Compensation Appeals Tribunal, arguing that the effective date of his award should be back dated to a period of time before February 16, 2012. WCAT allowed the appeal and awarded the Respondent a PMI of 10% on October 1, 2004 and an increase to that PMI to 20% on October 1, 2009. WCAT also confirmed the 30% PMI effective February 16, 2012.

The Appellant employer, Enterprise Cape Breton Corp., appealed WCAT’s decision, arguing that the Appeal Commissioner failed to properly apply WCB Policy 3.3.4R (the “Policy”). The Respondent conceded, and the Court confirmed, that WCAT is bound to follow WCB policy and a failure to follow an applicable policy would be unreasonable and constitute a reversible error.

The Court reviewed the statutory framework for determining the existence and degree of a permanent impairment for an industrial disease such as pneumoconiosis. The Court held that the Policy was appropriate for determining the degree of the Respondent’s permanent impairment and that the Policy mandates that a PMI be determined by: (a) a review of all pertinent information on the worker’s file; (b) the result of a physical examination; and (c) the criteria in the AMA Guide, which stipulates that the existence or degree of a PMI are determined by medical means and are based solely on a demonstrable loss of bodily function.

The Court held that WCAT’s conclusion could not, on any reasonable reading of the conclusion, be as a result of the application of the Policy, as WCAT based its decision on “nothing more than conjecture and speculation” as to what the Respondent’s PMI may have been on October 1, 2004, and October 1, 2009. The Court found that between 2000 and 2011 there was no medical evidence on the Respondent’s file relating to pneumoconiosis and that he did not undergo a physical exam. Based on this, the Court held that the PMIs for October 1, 2004, and October 1, 2009, were not determined by the criteria set out in the AMA Guide. The Court then stated that failure to apply the Policy was unreasonable and the decision could not stand.

The Court allowed the appeal and set aside the 10% PMI awarded by WCAT effective October 1, 2004, and the 20% PMI awarded on October 1, 2009. The Court affirmed the Hearing Officer’s decision that the Respondent was entitled to a 30% PMI effective February 16, 2012.

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