Court of Appeal Decision of the Week

Worker’s Compensation, Permanent Medical Impairment & Burden of Proof: Court of Appeal Confirms Shift on Appeal; Upholds WCAT Decision

Case: Maritime Paper Products Limited Partnership v. LeBlanc, 2016 NSCA 13 (CanLII)

Keywords: Personal Injury; Employment Context; Workers’ Compensation Board; Standard of Review; Burden of Proof; Standard of Proof; Worker’s Compensation Appeal Tribunal

Synopsis:

Mr. LeBlanc injures his left shoulder while employed with Maritime Paper Products Limited Partnership (“Maritime Paper”). Following his injury, a course of physiotherapy and shoulder surgery, Mr. LeBlanc undergoes a Permanent Medical Impairment (“PMI”) assessment.

PMI assessment is conducted by the Workers’ Compensation Board Medical Advisor, who concludes Mr. LeBlanc has a “whole person impairment” of 14%. Mr. LeBlanc is subsequently awarded a 14% PMI by the Board.

Maritime Paper appeals the Board’s PMI rating to a Hearing Officer; argues the PMI rating was inflated, and offends the Board’s policies respecting the determination of permanent impairment (by rating Mr. LeBlanc’s lack of range of motion and the presence of crepitus which, for Maritime Paper, amounts to rating the same impairment twice).

In response, the Board seeks a follow-up opinion from its Medical Advisor. The Hearing Officer accepts the opinion of the Board Medical Advisor, who is of the view Mr. LeBlanc has an unusual shoulder injury (two impairing conditions: one in relation to a labral tear; and the other, a tendon injury) and, as such, there is no duplication in the determination of permanent medical impairment.

Maritime Paper appeals the Hearing Officer’s decision to the Worker’s Compensation Appeal Tribunal (“WCAT”). The decision is upheld.

Maritime Paper is subsequently granted leave to appeal the WCAT decision to the Court of Appeal on the following grounds:

Did the WCAT err in law by:

  1. not properly applying the burden of proof as prescribed by s. 187 of the Workers Compensation Act, S.N.S. 1990, c. 10; or
  2. not properly interpreting or applying Board Policy 3.3.4R, 1.4.3, or 3.9.11R1?

The Court of Appeal dismisses Maritime Paper’s appeal; finds WCAT properly considered and applied the burden of proof, and properly considered and applied Board policies in assessing Mr. LeBlanc’s PMI.

Importance:

Citing Enterprise Cape Breton Corporation (Cape Breton Development Corporation) v. Southwell, 2012 NSCA 23 (CanLII), at para. 44, the Court of Appeal stated that the standard of review to be applied for WCAT decisions is reasonableness.

In its factum, Maritime Paper argued that WCAT reversed the burden of proof because it stated its conclusions “on the basis that the Employer had not satisfied its burden to prove ‘it is more likely than not’ that the PMI rating is inaccurate or incorrect”.

The Court of Appeal found no such error: “The position of Maritime Paper fails to recognize that the proceeding before WCAT is an appeal. Its position assumes that throughout the appeal process Mr. LeBlanc would have the burden of proof. With respect, that is not the case” [see para. 15, emphasis added].

As a consequence, the question at WCAT proceedings should have been whether the Board and the Hearing Officer erred in making the determination – the burden of proof lies with Maritime Paper to prove, on the civil standard, that “it was more likely than not that Mr. LeBlanc was not entitled to a PMI of 14%” [see para. 26]. Mr. LeBlanc had no burden to prove to WCAT that he was entitled to the 14% PMI rating as that determination had already been made.

Moreover, Section 187 of the Act provides:

Notwithstanding anything contained in this Act, on any application for compensation an applicant is entitled to the benefit of the doubt which means that, where there is doubt on an issue respecting the application and the disputed possibilities are evenly balanced, the issue shall be resolved in the worker’s favour [emphasis added].

The Court of Appeal found the Appeal Commissioner at WCAT had appropriately reviewed the expert medical opinion of Dr. Colin F. Davey (retained by Maritime Paper). Although Dr. Davey called into question the degree of impairment assigned and was of the opinion that some duplication occurred, the Commissioner stated: “I do not find it more likely than not that the Worker’s assessment by the Board Medical Advisor resulted in a PMI that was too high because of rating both crepitus and ROM” [see para. 27, emphasis added].

For the Court of Appeal, this was not an “impermissible application of the burden of proof”. Rather, the Appeal Commissioner at WCAT properly considered the burden on Maritime Paper and the standard to be applied in challenging Mr. LeBlanc’s claim.

With respect to Maritime Paper’s submission WCAT failed to properly apply policy, the tenor of the Court of Appeal’s response was that these generally amounted to “…nothing more than it asking this Court to reweigh the evidence and come to a different conclusion from that of the Appeal Commissioner”. The Court of Appeal was satisfied WCAT considered the appropriate policies and applied them.

Counsel for the Appellant: Bernadine MacAuley (Caravel Law)

Counsel for the Respondent John LeBlanc: Kenneth LeBlanc (Nova Scotia Workers’ Advisers Program, Halifax)

Counsel for the Respondent Workers’ Compensation Appeals Tribunal of Nova Scotia: Alexander MacIntosh (Workers’ Compensation Appeals Tribunal, Halifax)

Counsel for the Respondent Workers’ Compensation Board of Nova Scotia: Paula Arab, Q.C. (Workers’ Compensation Board of Nova Scotia, Halifax)

Posted: Wednesday, March 09, 2016