- 1 - Scotia in The Legislation put in place a form of social insurance to. compensate workers injured at the workplace.

Transcription

1 - 1 - INTRODUCTION Workers' Compensation Legislation was first enacted in Nova Scotia in The Legislation put in place a form of social insurance to compensate workers injured at the workplace. In exchange for this insurance, workers lost their common law rights of action against employers. Workers' Compensation benefits are payable regardless of fault. Under the common law, a worker injured at work is entitled to compensation if the injuries were caused by the negligence of his employer. The Workers' Compensation Act, R.S.N.S. 1989, c.508, makes the absence or presence of fault irrelevant; benefits are payable to workers for injuries arising out of and in the course of employment. The. Workers' Compensation Board ("Board") determines whether a worker is entitled to benefits and the amount of benefits payable. Board decisions, in some cases may be applied to the Workers' Compensation Appeal Board. This paper will examine the operation these two administrative tribunals and in particular will consider principles upon which compensation is payable, the manner and method of administration by the Board and Appeal Board and practice before these two administrative tribunals. PRINCIPLES OF COMPENSATION Whether compensation is payable for an injury at work is determined by Section 9 of the Act. In Subsection 9(1) the test for eligibility is that the personal injury must "arise out of and in the course of

2 - 2 - employment". To receive compensation for lost income, the injury must have disabled the worker for a period of at least three days from earning full wages at the work at which he was employed. Generally, an injury "arises out of the employment" if it is caused by a work-related activity. For example, an injury, which occurs in the process of doing something for the employer or results from a risk to which the worker is exposed, arises out of the employment. An injury occurs "in the course of employment" if it occurs at work, during work hours while the worker is under the employer's direction. Subsection 9(1 )(a) further requires that the worker be disabled ''from earning full wages at the work at which he was employed". In MacDonald rt'j.) v. Workers' Compensation Board (N.S.) (1989), 92 N.S.A. (2d) 209 (S.C.), the Court considered the phrase "the work at which he was employed". In that case, a worker sustained a personal injury by accident arising out of and in the course of employment. Although the worker's injuries prevented him from doing the work he performed prior to the injury, the employer offered him work with modified duties. The Court held at p.213: "Commissioner Vaughan appears to have assumed that 'duties assigned' is the equivalent to 'the work at which he was employed'. This Court has not heard any submission that would warrant such an assumption. This is an error in interpreting the words of s.[9(1)] of the Act and that, in turn, constitutes an error of law and of jurisdiction. The words 'the work at which he was employed' are susceptible of a general meaning and a particular meaning. In my opinion, their context indicates that they are intended to refer to

3 - 3 - the particular work that was being performed by the worker immediately pefore he was injured. H It follows, that if the worker is disabled from performing the particular work she performed immediately before the injury, the worker is disabled within the meaning of Subsection 9(1)(a) of the Act. The availability of modified work duties does not effect the worker's entitlement to benefits under the Act. There are cases where a worker has suffered a work-related injury and is in need of treatment, but has not been disabled from earning full wages for a period of at least three days. Section 71 (1) of the Act provides that a worker suffering an injury who would have been entitled to benefits had he or she been disabled for three days, is entitled to medical aid (for example, physiotherapy). Finally, Workers' Compensation benefits are payable for workrelated injuries "caused by the employment" which diminish the earning capacity of the worker. Compensation is paid only for that portion of the disability or diminishment in earning capacity attributable to the compensable injury (Hawker Siddeley Canada Umited v...6oo:y (1977), 21 N.S.A. (2d) 41 (S.C.A.D.). Subsection 9(2) of the Act provides: "Where the personal injury by accident results in injury or disease due in part to the employment and in part due to causes other than to the employment or where the personal injury aggravates, activates or accelerates a disability existing prior to the injury, compensation shall be payable for such proportion of the disability and disablement as may reasonably be attributed to the personal injury sustained." (Emphasis added)

4 - 4 - In Workers' Compensation Appeal Board (N.S.) v. Penny (1980), 38 N.S.A. (2d) 623 (S.C.A.D.), the Court held that the employment activity must have been a contributing factor to the injury. An injured worker who in all likelihood would not have suffered an injury at work but for his or her weakened condition, is nonetheless entitled to compensation. It is not relevant that a hardier individual would have withstood the impact without injury. In the Penny case, the Court referred to Hughes v. Clover. Clayton & Co. [1910] A.C In that case a worker was suffering from an aneurysm so advanced that it could have burst at any time. While tightening a nut with a spanner, the otherwise ordinary strain caused the aneurysm to rupture and the worker died. The death occurred at the workplace. The Court held that the injury was caused by the employment activity and was therefore a compensable injury. In the Hawker Siddeley Canada Ltd. v. ~ case, supra, the Court set out a number of general principles for determining causation: 1. A distinction must be made between a temporary disability and permanent disability. In practice, temporary disabilities are those from which the worker is expected to have some recovery. If the disability is expected to last indefinitely without prospect of diminishment, it is classified as permanent. 2. In cases of temporary disability, although a worker may have a pre-existing condition, if but for the work-related injury, the worker would

5 - 5 - not have been disabled from work, then the work-related injury is the sole cause of the temporary disability. 3. For a permanent disability, if a pre-existing condition is a cause or contributing factor to the disability, the Board must assess what part of the disability is due to the work injury and what part is due to the preexisting condition. STATUTORY BAR TO CIVIL ACTIONS If an injury is compensable under the Act, it may bar the worker from bringing an action for compensation for her disability. Section 20 of the Act states that the provisions of the Act are in lieu of all rights of action, statutory or otherwise, which a worker or his dependents are entitled to against the employer by reason of the injury. This statutory bar is also for the benefit of the employers' servants and agents. Sections of the Act, extend the statutory bar to all other employees covered by the Act. These sections have been interpreted in Gagnon v. Richmond District School Board (1986) 75 N.S.A. (2d) 213 (S.C.A.D.). Subsection 17(1) provides that if a worker suffers a compensable injury and is entitled to bring an action against some person, other than his employer, the worker may elect to bring the action.q[ to claim compensation under the Act. According to Section 18, if that other person is an employer covered by the Act, the worker is not entitled to sue. This exception in Section 18 is subject to the further exception in Section 19 that

6 - 6 - if the accident happens to the worker as a result of operating a motor vehicle, even though the person causing the injury may be an employer, its servants or agents, the worker is not barred from bringing an action against the employer. ADMINISTRATION OF THE ACT - THE WORKERS' COMPENSATION BOARD AND THE WORKERS' COMPENSATION APPEAL BOARD Subsection 138(1) of the Act provides that it shall be administered by the Workers' Compensation Board. The Board is given jurisdiction to inquire into, hear and determine all matters and questions of fact and law to assess a worker's entitlement to benefits (Section 148). The Board has broad powers. Subsection 47(1) gives the Board the same authority the Supreme Court has to compel the attendance of witnesses for examination under oath and to compel the production of books, papers, and documents. Section 156 empowers the Board to take affidavits and administer oaths. The Board may also hold an inquiry whenever it deems necessary, pursuant to Section 165. It is not Board's usual practice to hold hearings in adjudicating workers' claims. After a consideration of statements provided by the employer, the worker and treating physician(s) the Board will usually decide whether the injury is compensable. Normally, the Board will hold a hearing only in cases where the claim is doubtful or suspicious. The Board may, however, be forced to hold an inquiry. Section 25(1) of the Act provides that any person may object to a claim by

7 - 7 - notifying the Board in writing, within ten days of the date the objector first had notice of the claim. Section 25 requires the Board to hold an inquiry. Section 150 of the Act states that, except as provided in Sections 169, 182 and 183, the decisions and findings of the Board upon all questions of law and fact shall be final and conclusive. Section 150 also deems a number of decisions to be questions of fact. For instance whether an injury has arisen out of or in the course of employment is deemed to be a question of fact. The existence and degree of disability, its permanence and the extent of diminution of earning capacity arising therefrom are all deemed questions of fact. Hearings held by the Board are adversarial in nature. Employers are permitted to participate and adduce evidence against the claim. Cross-examination of witnesses is often permitted. Decisions of the Board may be appealed to the Appeal Board under Section 173 of the Act. The grounds of appeal are limited. An aggrieved person may appeal on the grounds that: (1) the medical opinion upon which the compensation was given or refused was erroneous or incomplete; (2) a greater functional disability exists than that found by the Board; or (3) continuance of compensation beyond the period allowed by the Board is required.

8 - 8 - The Appeal Board is not restricted to the record before the Board. The Appeal Board may hear oral testimony and receive additional documents (Section 178(1)). Appeal Board hearings are not adversarial. Oral evidence is given by the worker and her witnesses. Though Appeal Board members may ask questions of witnesses, their questioning is not in the nature of a cross-examination. Additional medical reports are often submitted for the Appeal Board's consideration. The Appeal Board usually does not carry out an independent investigation. In Cape Breton Development Corporation et. al. v. Pennyet. al. (1977), 19 N.S.A. (2d) 474 (S.C.A.D.), the Court held that an employer cannot appeal decisions of the Board to the Appeal Board. Further, an employer is not permitted to participate in hearings before the Appeal Board. In summary, hearings before the Board are adversarial in nature whereas hearings before the Appeal Board are not. The Board may hear from the employer and worker. If the claim is appealed to the Appeal Board, persons other than the worker is excluded from the hearing. The Appeal Board hears only from the injured worker and the worker's counsel. PRACTICE BEFORE THE WORKERS' COMPENSATION BOARD AND THE WORKERS' COMPENSATION APPEAL BOARD Hearings before the Workers' Compensation Board and Workers' Compensation Appeal Board are informal, as are most hearings before administrative tribunals. Both the Board and Appeal Board are

9 - 9 - subject to the principles of natural justice. Though the manner of proceeding is clearly within the discretion of the Board and Appeal Board (subject to statutory requirements) it must be fair. In Workers' Compensation Board (N.S.) v. Cape Breton Development Corporation (1984), 62 N.S.A. (2d) 127 (S.C.A.D.), the Court found a denial of natural justice when the Workers' Compensation Board did not permit cross-examination of witnesses by the employer. Although crossexamination is not necessary in all cases, whether it is permitted must be decided on the particular facts. In cases where cross-examination will assist the Board in reaching its decision, particularly if there are contested facts vital to the claim, cross-examination should be permitted. The Court also held that natural justice required the Board to disclose medical records to the employer. An employer must have an opportunity to review medical evidence in preparing its case. When acting on behalf of the employer or worker in any inquiry before the Board, the first step is to obtain a copy of the worker's file from the Board. The worker's right to obtain this information is set out in Subsection 158(3) of the Act. The employer's right to obtain this information is found in the principles of Workers' Compensation Board (N.S.) v. ~ Breton Development Corporation, supra. Counsel for the injured worker should obtain a full and complete statement of the grounds upon which the claim is disputed and the reasons for the inquiry.

10 In the case MacDonald. (W) v. Workers' Compensation Board (N.S.), supra, the Court held that in notice of objection hearings under Section 25, it is a denial of natural justice if the notice of objection does not fully and completely state the nature and reasons of the objection. The Board further indicated that it is a denial of natural justice to require a worker to respond to objections which have not been disclosed to the worker in advance of the hearing. Employers may wish to take advantage of Section 64 of the Act. That section requires a worker applying for compensation to submit to the examination of a duly qualified and registered medical practitioner chosen and paid for by the employer. The failure to submit may result in a suspension of the worker's right to compensation until the examination has taken place (see Section 64(2». Section 24 is the most important section of the Act for workers in that it gives workers the benefit of the doubt. The onus is not on a worker to adduce conclusive proof of his right to compensation. The Board "shall be entitled to draw and shall draw from all the circumstances of the case, the evidence and medical opinions, all reasonable inferences in favour of' a worker. This section is in accord with the principle that the Act should be construed liberally in favour of all workers. The rules of evidence do not strictly apply. The Board will, however, only consider evidence relevant to the claim. The Board will give parties great latitude in presenting their case. The overriding concern of both Boards is that the parties have an opportunity to be fully heard.

11 CONCLUSION The Legislature has taken from the worker her right of civil action against her employer for work-related injuries and substituted Workers' Compensation benefits. The determination of entitlement and payment of benefits has been delegated to the Workers' Compensation Board. In many cases, benefits are paid without having a hearing. When hearings are held at both levels, the Boards are required to give workers the benefit of the doubt and liberally construe the Act in their favour. P:\RBB\WCB