Citation: Lambe v. Workers Comp. Bd. (P.E.I.) Date: PESCAD 6 Docket: AD-0880 Registry: Charlottetown

Transcription

1 Citation: Lambe v. Workers Comp. Bd. (P.E.I.) Date: PESCAD 6 Docket: AD-0880 Registry: Charlottetown BETWEEN: PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - APPEAL DIVISION AND: REBY LAMBE WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND APPELLANT RESPONDENT Before: The Honourable Chief Justice G.E. Mitchell The Honourable Mr. Justice J.A. McQuaid The Honourable Madam Justice L.K. Webber Regena K. Russell John K. Mitchell, Q.C. Counsel for the Appellant Counsel for the Respondent Place and Date of Hearing Place and Date of Judgment Charlottetown, Prince Edward Island January 21, 2002 Charlottetown, Prince Edward Island March 15, 2002 Written Reasons by: The Honourable Mr. Justice J.A. McQuaid Concurred in by: The Honourable Chief Justice G.E. Mitchell The Honourable Madam. Justice L.K. Webber

2 Citation: Lambe v. Workers Comp. Bd. (P.E.I.) Date: PESCAD 6 Docket: AD-0880 Registry: Charlottetown REBY LAMBE AND WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND (7 pages) Before: Mitchell, C.J.P.E.I.; McQuaid, and Webber JJ.A. Heard: January 21, 2002 Judgment: March 15, 2002 APPELLANT RESPONDENT WORKERS COMPENSATION - COMPENSATION - Compensable injuries and disabilities The appellant was involved in a workplace accident in 1989 as well as a number of other workplace accidents between 1989 and 1996 for which she received compensation prior to returning to full employment. On January 5, 1996 she was involved in a workplace accident which left her 100% permanently disabled and unable to return to full employment. The Board assessed compensation for the 1996 accident under the provisions of the Workers Compensation Act, R.S.P.E.I Cap. W-7.1. The appellant requested a reconsideration and the Internal Reconsideration Officer of the Board affirmed the assessment. The appellant appealed pursuant to the provisions of Workers Compensation Act, R.S.P.E.I Cap. W-7, repealed. She asserted her assessment should have been made under the latter legislation as the injuries she suffered as the result of the accident in 1996 were an aggravation of those suffered as the result of the accident in HELD: The appeal was dismissed. The appellant s claim for the injuries resulting from the 1996 were properly assessed under the provisions of the Workers Compensation Act, R.S.P.E.I Cap. W-7.1. CASES CONSIDERED: Stretch v. Workers Compensation Board (1991), 96 Nfld. & P.E.I.R. 254 (P.E.I.S.C.A.D.); Canada (Director of Investigation and Research) v. Southam Inc. (1997), 144 D.L.R. (4 th ) 1 (S.C.C.); Whitlock v. Prince Edward Island (Workers Compensation Board) (2000), 196 Nfld. & P.E.I.R. 113, 2000 PESCAD 25; Blanchard v. Prince Edward Island (Workers Compensation Board) (1995), 135 Nfld. & P.E.I.R. 150 (P.E.I.S.C.A.D.) STATUTES CONSIDERED: Workers Compensation Act, R.S.P.E.I Cap. W-7, repealed, s.32, s- ss.32(1) and (2); Workers Compensation Act, R.S.P.E.I Cap. W-7.1, s-s.42(1), s-s.50(1), s-ss.56(1) and (6); Interpretation Act, R.S.P.E.I Cap. I-8, s-s.32(c) and (e); Regena K. Russell, for the appellant John K. Mitchell, Q.C., for the respondent

3 McQUAID J.A.: [1] This is an appeal from a decision of the Workers Compensation Board pursuant to section 32 of the Workers Compensation Act, R.S.P.E.I Cap. W-7, repealed (the old Act ). FACTS [2] On October 5, 1989 the appellant was injured while polishing the floor in the lounge of the car-ferry Abegweit. The cord of the polisher got wrapped up and when she tried to jump clear she fell injuring her neck, the back of her head and her elbow. She was unable to work between the date of the accident and April 2, 1990, when she returned to her employment for a period of ten days. By June 12, 1990 she had developed myofascial pain syndrome or fibromyalgia superimposed on a neck strain. [3] When she returned to work on September 2, 1990 there were no restrictions on the duties she was able to perform. In November 1990 she re-injured her right shoulder while using a plunger to clean a toilet. She resumed her work on a part-time basis in early April 1991 and on a full-time basis by April 27, [4] Ms. Lambe continued to work until October 1991 when she was injured again attempting to open a heavy door at the top of an escalator. She experienced severe pain in her right shoulder. Following this injury she did not return to work until May 31, [5] On June 7, 1993 she suffered another injury when unloading a storage box. The lid of the box blew down striking her on the head. She was not required to be away from work as the result of this injury. [6] On July 17, 1993 she was bending over lifting stores out of the stores bin when she experienced severe stabbing pain in the lower back as well as pain in the neck and the shoulder. On December 26, 1994 she returned to work from this injury on a fulltime basis. [7] On January 5, 1996 she was lifting a scrub bucket into a sink when she strained her right shoulder and neck. She was unable to return to work until October 1, 1996 when she commenced the ease-back program. She was compelled to cease this program on December 9, 1996 due to increased pain. [8] When she returned to work on March 27, 1997 she assumed the duties of an Assistant Steward because she could not do the shifts of a Second Steward or a Chief Steward, which she was doing before the injury which resulted from the most recent accident. Accordingly, she was placed on temporary earnings loss benefits from

4 Page: 2 January 5, 1996 to March 27, She was also paid temporary earnings loss benefits between August 4, 1997 and August 17, The temporary earnings loss was calculated and paid to her under the provisions of the Workers Compensation Act, R.S.P.E.I Cap. W-7.1 (the new Act ). [9] By letter dated October 10, 1997 the Board advised the appellant she was being placed on extended earnings loss benefits based on a 100% disability, effective June 18, 1997 because she was unable to return to work with Marine Atlantic in any capacity after that date. These benefits were also assessed under the new Act. [10] Benefits owing between June 18, 1997 and October 8, 1997, less the amount of temporary earnings loss benefits she was paid for the above ten days in August 1997, were paid to the appellant in a lump sum of $4, She was advised that biweekly payments of $ would commence with the next pay period ending October 22, She was also advised that any collateral benefits she received such as those she might be entitled to under the Canada Pension Plan would be included in the amount fixed as a bi-weekly payment for extended earnings loss. This advice was given in accordance with the provisions of s-s. 42(1) of the new Act. [11] The appellant did not appeal or request the Board to reconsider this decision. It does appear, however, that her employer, Marine Atlantic, did give some consideration to filing an appeal but never did so. The bi-weekly benefits were paid by the Board to the appellant commencing in October On April 23, 1999 the Board advised the appellant it had been informed she applied for Canada Pension Plan Disability Benefits. The Board reminded the appellant (as they had advised her in the letter of October 10, 1997) that if she did receive Canada Pension Plan Disability Benefits, they would be considered a collateral benefit under the provisions of the new Act and thus an overpayment of her claim. The Board requested that she complete a form which would allow the amount of any Canada Pension Plan benefit to be paid directly to the Workers Compensation Board. [12] The appellant asked for an explanation from the Board as to why this was being done and as to why her claim arising from the accident of January 5, 1996 was treated as a new claim for compensation purposes. By letter dated May 31, 1999 the Board explained why it treated the claim as a new claim and not one which arose from the accidents prior to January 5, The Board confirmed the claim was assessed and paid under the new Act. [13] On June 9, 1999 the Worker Advisor, acting on behalf of the appellant, requested a reconsideration of the decision of the Board dated May 31, Section 56(1) of the new Act provides for a reconsideration by the Board of any matter that has been dealt with by it. As a result the matter of the appellant s claim for

5 Page: 3 compensation proceeded to an Internal Reconsideration Officer (IRO) of the Board and a hearing was held on December 13, The IRO s decision was delivered on February 21, [14] In her decision, the IRO found the Board was correct in treating each accident as a new claim and in paying the appellant extended earnings loss benefits based on 100% disability under the provisions of the new Act which had come into force on January 1, However, the IRO noted that as a result of the injury the appellant suffered in 1989 the Board s medical staff had determined at the time she was permanently partially disabled. The IRO found the appellant s claim should have been revisited in The IRO found that if it had been revisited, the appellant s permanent partial disability should have been fixed at 18%. Accordingly, the IRO found she was entitled, under the provisions of the old Act, to a permanent partial disability pension of 18% of her gross earnings as of Accordingly, the IRO ordered the pension be put in place for the appellant Ms. Lambe as of the date of her decision and that the extended earnings loss continued to be paid under the provisions of the new Act. [15] On March 15, 2000 the IRO issued an Addendum to replace the decision of February 21, In the addendum the IRO explains how she arrived at the conclusion the appellant was entitled to the 18% permanent partial disability pension retroactive to 1992 under the provisions of the old Act. She confirms that the appellant is entitled to the pension and ordered it be paid retroactively from for each period of time she was not in receipt of Total or Partial Wage Loss during each claim she had after 1989, that is 1991, two in 1993 and [16] She also confirms that the appellant s claims of 1989, 1991, the two claims in 1993 and the final claim in 1996 were properly adjudicated by the Board as independent accident claims. She indicates that pursuant to the provisions of s-s. 50(1) of the new Act the appellant is entitled to receive the pension and qualify for extended earnings loss benefits as the result of the accident in Finally, she confirms the extended earnings loss benefit is subject to the deduction of collateral benefits and is payable until the appellant attains the age of 65. THE APPEAL AND THE ISSUE [17] The appellant takes the position her claim for compensation resulting from the 1996 accident should have been assessed under the old Act and therefore she appeals to this court from this decision pursuant to s-s. 32(1) the old Act. Under the provisions of s-s. 56(6) of the new Act, however, the appellant s right of appeal would be to the Appeal Tribunal.

6 Page: 4 [18] The issue in this appeal is whether the compensation to which the appellant is entitled should be assessed under the old Act or the new Act. DISPOSITION [19] I would dismiss the appeal. STANDARD OF REVIEW [20] Applying the pragmatic and functional approach to determining a standard of review to the discretionary decision of the IRO and in this respect, having regard to the Board s relative expertise in matters of workers compensation, its central role in administering the legislation, the full privative clause in s-s. 32(1) of the old Act with respect to questions of fact and the provision of a statutory right of appeal on questions of law or jurisdiction, I am of the view the decision of the IRO should be reviewed on the standard of reasonableness. That is, unless it is demonstrated the IRO made a palpable and overriding error in concluding the appellant should be compensated under the provisions of the new Act, this court should not intervene. See: Canada (Director of Investigation and Research) v. Southam Inc. (1997), 144 D.L.R. (4 th ) 1 (S.C.C.) and Whitlock v. Prince Edward Island (Workers Compensation Board) (2000), 196 Nfld. & P.E.I.R. 113, 2000 PESCAD 25, paras. 7 to 9. ANALYSIS [21] Under the old Act and prior to the decision in Stretch v. Workers Compensation Board (1991), 96 Nfld. & P.E.I.R. 254 (P.E.I.S.C.A.D.) benefits were calculated on the degree of impairment as assessed by a medical doctor and then paid this percentage based on 75% of the workers gross salary. The worker could receive, in addition, any Canada Pension Plan Benefits to which he or she may be entitled. For example, if a worker was found to be 100% permanently disabled she or he would receive a pension, payable for life, calculated on the basis of 75% of her gross salary at the time of the accident which caused the disability. In addition, she would be able to retain, without deduction from this pension, any collateral benefits such as the Canada Pension Plan Disability. [22] On the other hand and under the provisions of s. 40 of the new Act a worker who is 100% permanently disabled is paid 80-85% of his or her net earnings at the time of the disability, less any collateral benefits to which the worker may be entitled such as Canada Pension Plan Disability. This extended earnings loss would be paid until the worker attains the age of 65 or until the worker is able to resume employment. [23] According to the Board s calculation of extended earnings loss dated February

7 Page: 5 27, 1998, the appellant s gross salary per year at the time of the accident in 1996 was $33, Her net salary was $24, Under the old Act she would receive a pension of 75% of $33, or $25, per year which would be subject to any applicable income taxes. She would also be entitled to retain any collateral benefits collected such as the Canada Pension Plan Disability. The pension is payable for life. [24] Under the extended earnings loss assessment pursuant to the provisions of the new Act, the appellant would receive compensation of 85% (80% for the first 39 weeks) of her net salary of $24, or $20, per year, less any collateral benefits, and subject as well to applicable income tax provisions. Compensation calculated in this manner is payable until she attains the age of 65 or until she is able to resume employment. [25] Pursuant to s-ss. 32(1) and (2) of the old Act, all decisions of the Board on issues of fact and law are final and conclusive subject to a right of appeal to this division of the court on questions of law or jurisdiction. Subsection 32(1) deems the determination of certain issues by the Board to be questions of fact from which there is no right of appeal. There is, therefore, with respect to questions of fact, a full privative clause. [26] There is no question or issue in this appeal as to whether the appellant is entitled to compensation on the basis that she is 100% permanently disabled. The question or issue is, however, whether her disability is compensable under the old Act or the new Act. [27] The appellant argues that the disability which renders her incapable of working at the present time is a recurrence of the injury she suffered as the result of the 1989 accident. Therefore, she argues, her claim for compensation based on a permanent disability should be adjudicated and paid under the old Act which was in force before January 1, 1995 and at the time of the accident in The appellant further argues that the support for her position is found in the medical evidence which was before the IRO. [28] In accordance with the principle established by the court in Blanchard v. Prince Edward Island (Workers Compensation Board) (1995), 135 Nfld. & P.E.I.R. 150 (P.E.I.S.C.A.D.) which addressed the issue of a worker s right of appeal, the provisions of the old Act continue to apply, as well, to claims where the worker s entitlement to compensation has vested in the worker under the old Act. Mitchell J.A. writing for the court, relied upon ss. 32 (c) and (e) of the Interpretation Act, R.S.P.E.I Cap. I-8 which provide as follows: 32. Where an enactment is repealed in whole or in part, whether or not another enactment is substituted for it, the repeal does not...

8 Page: (c) affect any right,... acquired, accrued, accruing or incurred under the enactment so repealed;..... (e) subject to clause 33(1)(b), affect any investigation, proceeding or remedy in respect of any such right,..., and subject to section 33(1), an investigation, proceeding or remedy as described in clause (e) may be instituted, continued or enforced... as if the enactment had not been repealed. [29] The appellant s claim is not one of those claims that would survive the repeal of the old Act and the coming into force of the new Act on January 1, 1995 because on this date the appellant did not have an entitlement to workers compensation except for the 18% partial disability pension awarded by IRO. Her entitlement to compensation was not a right she acquired before the old Act was repealed. Despite the fact she had been involved in previous accidents and as a result suffered previous injuries for which she received compensation, at the time of the coming into force of the new Act, she had returned to full employment and was not entitled to workers compensation benefits other than the 18% permanent partial disability pension. She did not become entitled to receive additional benefits until the workplace accident on January 5, 1996 which resulted in a new claim for compensation. At this time the new Act was in force and any benefits to which she would be entitled as the result this accident would be payable under that legislation. [30] It is immaterial to the resolution of the issue in this appeal whether the injury the appellant suffered as the result of the accident on January 5, 1996 is a recurrence of the injury she suffered as a result of the accident in If the injury is not a recurrence, there is no question that the appellant s right to compensation would derive from the new Act. Similarly, however, if the injury which caused her to have a loss of earnings in 1996 is considered a recurrence of the injury resulting from the 1989 accident, her claim would also derive from the new Act because at that time it was the only applicable legislation. Furthermore, I am of the view that ss-s. 41(5) and (6) of the new Act specifically applies to the situation where, as the result of an accident occurring before the new Act came into effect, a worker suffers a loss of earning capacity and then, subsequent to returning to full employment and subsequent to the new Act coming into effect, experiences a recurrence which gives rise to a another loss of

9 Page: 7 earning capacity. Therefore, the IRO did not make a palpable and overriding error when she concluded the appellant s claim for compensation as the result of a loss of earning capacity in 1996, was properly adjudicated and assessed under the new Act. [31] In conclusion, the appeal is dismissed. There will be no order as to costs. The Honourable Mr. Justice J.A. McQuaid I AGREE: The Honourable Chief Justice G.E. Mitchell I AGREE: The Honourable Madam Justice L.K. Webber