The tribunal continues to see claims for medical conditions that, although
not directly caused by the compensable injury, are alleged to be causally connected
to the injury.
In Decision 2007-945-AD (August 27, 2008, NSWCAT), the worker claimed
that her sleep apnea was a result of her compensable environmental illness
syndrome, which had resulted in chronic pain syndrome and a variety of
psychological and psychiatric conditions. The board found that the worker’s
sleep apnea was due to the worker’s obesity. The tribunal found that the
worker’s obesity, the chronic nasal congestion caused by her environmental
sensitivities, and her use of sedative medications contributed to the development
of her sleep apnea. The worker’s weight gain was accepted as compensable
as it was found to be largely related to medication used to treat her
psychiatric conditions.
Recognition that the condition of multiple sclerosis was related to exposure
to toxins in the workplace was denied in Decision 2007-1003-AD
(November 20, 2008). The worker developed multiple sclerosis eight years
after leaving the workplace. There was no specific evidence of an association
between the worker’s exposures and multiple sclerosis, and only speculation
that toxins may be a factor.
The tribunal, in Decision 2008-666-AD (March 26, 2009), recognized
bruxism (the clenching and grinding of teeth) as being causally related to a
compensable back injury. The tribunal accepted the evidence of the worker’s
family doctor that associated his teeth grinding to the back pain and stress
resulting from his chronic back condition.
In Decision 2007-566-AD (June 3, 2008), the tribunal determined that medical
aid in the form of a replacement van was “necessary” within the meaning
of s. 102 of the Workers’ Compensation Act, [the “act”]. The worker was
confined to a wheelchair. The board had provided him with a van, modified
to accommodate his wheelchair, and which enabled him to drive. The van
was in need of costly maintenance and repair that the worker could not afford.
The worker lived in a rural area, where his extended family and support
system also resided. The van was considered a necessity because he could not
leave home without his power wheelchair. The purchase of a new van was
considered more practical than maintaining the old one.
Medical aid in the form of a recumbent bicycle was awarded in Decision
2008-227-AD (September 19, 2008). The worker broke his hip and was awarded
a permanent medical impairment award, which compensated partially for
muscle atrophy in the affected leg. The recumbent bicycle was aimed at providing
home exercise to improve, stabilize, and slow the rate of decline in that area.
In Decision 2008-298-AD (January 30, 2009), the tribunal denied recognition
of a claim by an itinerant home care worker who, while leaving on her regularly
scheduled shift at the start of a work day, had slipped in her driveway
and suffered a back injury. Recognition was denied primarily on the basis
that the worker had not started her workday, and her slip and fall, therefore,
did not occur in the course of her employment.
A similar fact situation was before the tribunal in Decision 2008-487-AD
(February 9, 2009). The worker travelled to clients’ homes to provide nursing
services. She slipped in her driveway, in the evening, when she went out to get
some paperwork from her car. The tribunal denied the appeal on the basis
that the work had been neither requested nor required by the employer, the
worker was neither at her employer’s premises nor at a client’s premises, the
risk to which she was exposed was not exclusive to her employment, and the
accident did not occur during work hours. This decision is currently on appeal
to the Nova Scotia Court of Appeal.
The tribunal, in Decision 2008-153-TPA (October 21, 2008), was faced with
the question within the context of a s. 29 application, of who constituted
an “Employer engaged in an industry subject to mandatory coverage under
the Act”, pursuant to the Workers’ Compensation General Regulations. The
tribunal found that the applicant was engaged in fishing, an industry subject
to mandatory coverage; however, the applicant was excluded from coverage
as he did not have three workers “at the same time employed” pursuant
to s. 15 of the General Regulations. The applicant himself was the employer
and excluded from the definition of “worker” as per s. 17 of the Regulations.
Although his son was included in the definition of “worker” in the act, the
applicant’s wife was excluded. The tribunal found that there were never three
workers fishing on the vessel at the same time and that the applicant was not
an “employer” under the act.
In Decision 2007-577-AD (July 25, 2008), the question was whether the
worker, a roofer, was a “worker” as defined in the act, thereby entitling him to
consideration for benefits under the act. This case involved the construction
of a home for which the employer had entered into a contract for roofing.
The employer was a covered employer under the act. The worker did not
have coverage under the act, and was injured. The tribunal found that the
employer was not merely acting as a friendly conduit for the homeowner, but
that the employer had obtained the services of the roofer, in keeping with
his overall contract of obtaining quotes for work on all aspects of the home’s
construction. Neither the homeowner nor the principal contractor supervised
the roofer’s work. The roofer was found to be a “worker” as defined in s. 2(ae)
of the act.
In Decision 2007-1020 RTH (July 7, 2008), the tribunal found that a municipality
who had hired an independent contractor to clean some municipal
buildings was properly assessed by the board as the “employer.” An injury
had been sustained during the cleaning. The independent contractor did not
have coverage as it did not have three workers. The tribunal found that under
the legislation, and board policy 9.1.3, the independent contractor could be a
deemed worker of the principal, the appellant municipality. This was found
to be the approach that best furthered the aims of the act. This ensured
that the independent contractor had coverage for her workplace injury and
allowed the principal an opportunity to recover assessments paid from the
contractor. The alternative was to provide no coverage for an otherwise acceptable
workplace injury.
In Decision 2008-142-AD (October 20, 2008), the tribunal interpreted s. 15
of the General Regulations regarding the scope of coverage under the act. It
held that the phrase “at the same time employed” did not mean that a firm
became subject to coverage only when it employed three or more workers
with the same hours of work. It included those businesses who employed
three or more workers who may work different shifts within a 24 hour cycle,
but who are, nevertheless regularly employed within the same pay period.
Section 28 of the act reflects the historic trade-off in which, generally speaking,
workers gave up their right to sue their employers in exchange for rights
under a no-fault insurance scheme. Section 29 gives the tribunal the exclusive
jurisdiction to determine whether a worker’s right of action is barred pursuant
to s. 28. In Decision 2008-373-PAD (January 12, 2009), the tribunal considered
its jurisdiction to make that determination in a case involving a fatal motor
vehicle accident that had occurred in Newfoundland. The estate of one of the
victims had elected not to claim compensation from the Newfoundland and
Labrador Workplace Health and Safety Compensation Commission and commenced
an action in the Supreme Court of Nova Scotia.
The tribunal found that the fact that the plaintiffs elected not to claim
compensation did not negate the tribunal’s jurisdiction. Nor was the fact
that compensation was no longer payable under Part 1 of the act necessarily
determinative.
In Decision 2008-494-TPA (February 2, 2009), the tribunal assumed jurisdiction
to make the ruling on whether or not the action of one worker against
another was barred under s. 12 of GECA. It found that although GECA
did not incorporate s. 28 of the act, as there was a corresponding provision
in s. 12 of GECA, it did incorporate s. 29 respecting actions started in the
Supreme Court of Nova Scotia.
In Decision 2008-108-AD (July 17, 2008), the tribunal found that s. 2 of Board
Policy 10.3.5 did not require an employer to have filed an internal appeal of a
decision, or submitted written argument or oral evidence, in order to be considered
a “participant” in an appeal before a hearing officer. Section 3 of the
policy did not prohibit release of information from a worker’s claim file to an
employer that did not outline its specific concerns as suggested by the policy.
The employer was a “participant” as stipulated by s. 197(4)(a) of the act at the
time the worker’s file was released. The information released to the employer
was relevant to the appeal.
In Decision 2008-462-AD (December 11, 2008), the tribunal considered a claim
for survivor benefits from the spouse of a worker who had been killed in
a motor vehicle accident on his “earned day off.” The tribunal found that,
even though the worker’s job may have required him to be accessible to his
employer on his day off, his death had occurred while driving to a purely personal
event, was unconnected to the workplace, and was non-compensable.
The tribunal, in Decision 2007-118-AD (July 29, 2008), found that a worker
involved in a workplace incident that eventually led to his dismissal for cause
was not entitled to an extended earnings replacement benefit [“EERB”]. The
tribunal determined that the worker’s continued earnings loss was not related
to his workplace injury and found that, had he not been fired, he would have
been able to return to work. Consequently, his earnings loss was the result of
non-compensable factors.
The facts in Decision 2008-163-AD (January 29, 2009) raised a similar
issue. The worker had been dismissed from a modified position after his return
to work, for reasons unrelated to his workplace injury. When his attempt
to run his own business following the dismissal failed, he sought an EERB.
The tribunal accepted that, in general, no earnings replacement benefit would
be payable where a loss of earnings was due to a labour relations issue. It
accepted that there could be circumstances where the general rule did not
apply, but that this case did not present such circumstances. This decision is
under appeal to the Nova Scotia Court of Appeal.
In Decision 2008-302-AD (September 8, 2008), the worker passed away
before the board assessed whether he was entitled to compensation under
the Chronic Pain Regulations. The tribunal interpreted s. 79 of the act as
clearly giving the board a discretion to pay compensation to a dependant or
caregiver where a worker dies. However, where that discretion is not exercised
by the board, the benefits which should have been properly paid to a worker
during their lifetime can be pursued by the worker’s estate.
The tribunal, in Decision 2008-488-AD (January 23, 2009), denied a request
to retroactively commute a correction in a worker’s permanent impairment
benefit. The tribunal determined that the right to commutation ended
with a worker’s death.
While many of the key issues regarding the interpretation and effect of the
Chronic Pain Regulations have been resolved since their enactment, the tribunal
continues to decide questions arising from their practical application.
In Decision 2008-465-AD (January 27, 2008), the tribunal apportioned a
pain-related impairment for a worker who had chronic pain that pre-existed
his injury. The tribunal found that the proper method of apportioning a
permanent impairment benefit (including a pain related impairment) was
through sections 4.3.1 and 4.3.2 of the board’s apportionment policy. The
tribunal considered the evidence and the Pain Assessment Tool found in
the American Medical Association’s Guides to the Evaluation of Permanent
Impairment Fifth Edition (“AMA Guides”), and found that the worker’s preexisting
impairment should have been rated at 3 per cent, and his post-injury
impairment at 6 per cent.
In Decision 2007-1009-AD (June 23, 2008), the tribunal held that the
Pain Assessment Tool in the AMA Guides should be applied in as objective
a manner as possible, with a focus on how, and to what degree, a worker’s
pain related impairment is manifesting itself. When assessing the impact of
a worker’s pain on his activities of daily living, it was stated to be incorrect
to consider the character of the individual worker and attempt to measure
stoicism or lack thereof.
The tribunal confirmed in Decision 2008-425-AD (October 28, 2008) that the
Chronic Pain Regulations do not allow an EERB for those workers injured
prior to March 23, 1990. Although the worker in this case argued that he had
cashed in his pension from the employer and pursued vocational rehabilitation,
causing him to lose out on an early pension provided to other employees,
the tribunal found that the loss of a pension and lost opportunities were
not compensable under the general scheme of the act or s. 3 of the Chronic
Pain Regulations.
In a similar vein, the tribunal in Decision 2007-681-AD (February 10, 2009)
rejected the worker’s claim for benefits to cover a period of employment
insurance benefits because he lost the opportunity to qualify for employment
insurance (E.I.) as a result of his injury. The tribunal found that the loss of
earnings was not due to the injury, but due to economic and personal circumstances
and stated that, although E.I. benefits are considered earnings for
certain purposes within the scheme of the act, there is no authority to include
“lost opportunity” as part of loss of earnings.
The board is responsible for administering the Government Employees
Compensation Act, or “GECA,” on behalf of the federal government. The
tribunal is often challenged with reconciling GECA with the act in its determination
of compensation matters involving federal employees.
In Decision 2008–349-AD (December 12, 2008), the tribunal found that s. 83
of the act, which bars claims that have not met certain notice provisions, applied
to GECA claims. The board found that the worker’s claim, filed 50 years
after the accident, was barred by s. 83. The tribunal found that the requirements
for notice in s. 83 were sufficiently linked or connected to a “condition”
of compensation, to be properly incorporated by reference into GECA.
In Decision 2007-396-AD (June 30, 2008), the tribunal applied the four-part
test in policy 1.3.6, which applies to stress claims under GECA. The worker
in this case was an investigator of aircraft accidents, and sometimes saw
mutilated remains, etc., at crash sites. The tribunal found the worker’s gradual
onset stress was compensable pursuant to the four-part test, one part of
which requires that the work-related events or stressors involved be “unusual
or excessive” compared to those experienced by an average worker in the
same or similar occupation. The tribunal found that the stressors the worker
experienced in a local office were unusual and excessive compared to those of
an average investigator in another one of the employer’s offices.
In Decision 2008-64-AD (July 16, 2008), the tribunal found that Policy
1.3.6, the GECA stress claim policy, did not apply to a recurrence of a stressrelated
injury. The tribunal found that the issue was to be decided using the
general rules of causation.
In Decision 2007-578-AD (October 30, 2008), the tribunal applied Policy
1.3.6, and found that the worker did not meet the criteria for recognition for
either a gradual onset stress claim or a stress claim based on a traumatic event.
The criteria for recognition of a gradual onset stress claim were not met because
the events or stressors the worker experienced were not unusual or excessive.
She was complaining about occasional exposure to perfumes or scents. This did
not constitute an excessive or unusual event because the worker continued to
experience this in the community and would have experienced this in any work
environment. The worker’s exposures to scents did not constitute a traumatic
event. If these exposures were truly traumatic, in the sense contemplated by the
policy (life threatening), she would not have, at any point, placed herself in a
situation where she might experience an exposure.
In the past year, the board has commissioned evidence-based research papers
on the clinical efficacy of both IV Lidocaine and specialized bedding systems.
In Decision 2008-739-AD (March 9, 2009), the board’s paper on the longterm
use of IV Lidocaine was persuasive in the tribunal’s decision to deny
the request for such treatment, on the basis that it is experimental and not
consistent with healthcare standards in Canada.
In Decision 2008-484-AD (March 2, 2009), the board’s paper on the clinical
efficacy of specialized beds was considered. It suggested that such beds were
acceptable treatment in cases where an individual was bedridden, but stated
there was no objective evidence that they would be acceptable treatment in
chronic pain cases. The tribunal found that there was no requirement for
objective evidence that the bed be “necessary or expedient” within the wording
of s. 102 of the act, and a bed was awarded on the basis of the medical
evidence on file.
In Decision 2008-101-AD (August 26, 2008), the tribunal considered a claim
for travel expenses, for travel to treatment provided by the Nova Scotia
Environmental Health Centre. The claim had been denied by the board on
the basis that the treatment was not provided by a “WCB approved service
provider” within the wording of board policy 2.3.1R. The tribunal stated
that, according to the board’s website, all doctors licensed to practice in the
province are approved service providers to the board. The doctor at the Nova
Scotia Environmental Health Centre was determined by the tribunal to be an
approved service provider and travel expenses to obtain his treatment were
payable.
Massage therapy provided by a non-board approved service provider
was allowed by the tribunal, in Decision 2008-14-AD (August 18, 2008,
NSWCAT). The tribunal held that the board’s requirement that treatment be
provided by a board approved service provider was met by the fact that the
treatments were capable of being supervised and monitored by the worker’s
family doctor, a board approved service provider. The board was able to monitor
the worker’s treatment through communication with his doctor and his
massage therapist.
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