2012 NBCA 28, 2012 NBCA 28

COURT OF APPEAL OF NEW BRUNSWICK 90-11-CA JAN VAN Putten APPELLANT JAN VAN PUTTEN APPELANT - and - - et - WORKPLACE HEALTH, SAFETY AND COMPENSATION COMMISSION OF NEW BRUNSWICK RESPONDENT LA COMMISSION DE LA SANTÉ, DE LA SÉCURITÉ ET DE L’INDEMNISATION DES ACCIDENTS AU TRAVAIL DU NOUVEAU- BRUNSWICK INTIMÉE Van Putten v. Workplace Health, Safety and Compensation Commission, 2012 NBCA 28 Van Putten c.

Commission de la santé, de la sécurité et de l’indemnisation des accidents au travail, 2012 NBCA 28 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Richard The Honourable Justice Green CORAM : L’honorable juge en chef Drapeau L’honorable juge Richard L’honorable juge Green Appeals Tribunal established under the Workplace Health, Safety and Compensation Commission Act : March 7, 2011 Tribunal d’appel constitué en vertu de la

Loi sur la Commission de la santé, de la sécurité et de l’indemnisation des accidents au travail : Le 7 mars 2011 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o. Appeal heard: September 27, 2011 and January 24, 2012 Appel entendu : Le 27 septembre 2011 et le 24 janvier 2012

Judgment rendered: March 22, 2012 Jugement rendu : Le 22 mars 2012 Counsel at hearing: For the appellant: James C. Crocco For the respondent: Matthew R. Letson Avocats à l’audience : Pour l’appelant : James C. Crocco Pour l’intimée : Matthew R. Letson THE COURT The appeal is dismissed without costs. LA COUR L’appel est rejeté sans dépens. The following is the judgment delivered by THE COURT [ 1 ] In a decision rendered February 19, 2007, the Appeals Tribunal established under the Workplace Health, Safety and Compensation Commission Act , S.N.B. 1994, c.

W-14 (the “ WHSCC Act ”), upheld a decision of the Commission to the effect that the appellant had not established a causal connection between his fibromyalgia, the basis advanced at that time for his ongoing disability claim, and any work-related “accident” (see s. 1 of the Workers’ Compensation Act , R.S.N.B. 1973, c. W-13). On March 7, 2011, a three-member panel of the Appeals Tribunal dismissed the appellant’s application for reconsideration of that decision.

The panel did so because, in its view, the appellant had offered no “new evidence […] substantially affecting the matter” of causation (see s. 22(1) of the WHSCC Act ) and “no proof was brought forward at the hearing to link the appellant’s fibromyalgia with his work or with the injuries sustained at work”. The present appeal, which is concerned solely with the sustainability of the latter decision, raises an issue of general importance, namely the authority of the Appeals Tribunal to engage in a s. 22(1) reconsideration of its own decisions, orders or rulings.

For the reasons that follow, we conclude the Appeals Tribunal has the requisite authority and that reversal is not justified by any error the appellant attributes to its decision-making. I. The Jurisdictional Issue [ 2 ] Under s. 22(1), the Commission is empowered, in specified circumstances, to reconsider a matter it previously decided and to rescind, alter or amend any of its prior decisions, orders or rulings. As ss. 22(2) and (3) make inarguable, those Commission decisions, orders and rulings include decisions, orders and rulings of the Appeals Tribunal.

The preliminary issue under consideration here is whether the Commission lacks jurisdiction to delegate to the Appeals Tribunal its power to reconsider a matter previously decided by the Appeals Tribunal, as well as its power to rescind, alter or modify a prior decision, order or ruling of the Appeals Tribunal.

Section 22 provides as follows:

22(1) Where it is made to appear to theCommission that, if a matter previouslydecided by it is reconsidered, new evidencewill be adduced substantially affecting thematter, nothing shall prevent the Commissionfrom reconsidering the matter previouslydealt with by it, or from rescinding, alteringor amending any decision, order or rulingpreviously made, all of which theCommission shall have authority to do. 22(2) Any decision, order or ruling undersubsection (1) made as a result of thereconsideration of any decision, order orruling of the Appeals Tribunal shall be final,subject only to an appeal to the Court ofAppeal involving any question as tojurisdiction or any question of law andsection 23 applies with the necessarymodifications. 22(3) Subsection 21(1) applies respecting anydecision, order or ruling under subsection (1)made as a result of the reconsideration of anydecision, order or ruling other than a decision,order or ruling of the Appeals Tribunal. 22(1) Lorsqu’il est démontré à laCommission que, si une question sur laquelleelle a préalablement statué est considérée denouveau, il sera produit une nouvelle preuveaffectant notablement la question, aucunedisposition n’empêche la Commission deconsidérer de nouveau la question surlaquelle elle a préalablement statué, oud’annuler, changer ou modifier toute décisionrendue antérieurement, choses que laCommission a le pouvoir de faire. 22(2) Toute décision rendue en vertu duparagraphe (1) par suite de la reconsidérationde toute décision du Tribunal d’appel estdéfinitive, sujet seulement à un appel devantla Cour d’appel concernant toute question decompétence ou de droit et l’article 23 y estapplicable avec les modifications nécessaires. 22(3) Le paragraphe 21(1) s’appliquerelativement à toute décision rendue en vertudu paragraphe (1) par suite de lareconsidération de toute décision autre qu’unedécision du Tribunal d’appel. [3] It is now settled that the Commission may lawfully delegate to the Chairperson of the Appeals Tribunal its“gate keeper” role under s. 22(1) with respect to matters previously decided by the Appeals Tribunal (see Bernier v.

Commission de lasanté, de la sécurité et de l’indemnisation des accidents au travail (N.-B.) (2000), (NB CA), 223 N.B.R. (2d) 179,[2000] N.B.J. No. 16 (C.A.) (QL), leave to appeal denied [2000] S.C.C.A. No. 508 (QL) and Bujold v. Workplace Health, Safety andCompensation Commission of New Brunswick, 2008 NBCA 38, 330 N.B.R. (2d) 186). In Bujold, the Chairperson, to whom theCommission had delegated its “gate-keeper” function under s. 22(1), sub-delegated that function to the Appeals Tribunal’s Manager ofAppeals Services.

The Manager determined the applicant for reconsideration had not shown he would, if given the opportunity, adducenew evidence substantially affecting the previous decision of the Appeals Tribunal to which he took exception. On appeal, Richard, J.A.,who delivered the Court’s unanimous reasons for decision, rejected the unsuccessful worker’s contention that, having regard to s. 22(1)of the WHSCC Act and s. 46 of the Workers’ Compensation Act, only the Commission could determine that threshold question: Mr.

Bujold acknowledges that the wording of s. 16(1) of the Act allows the Commission to delegate part of its powers, but he argues thatunder s. 46 of the Workers’ Compensation Act, only the Commission may reopen a previous decision. In addition, Mr. Bujold claims thatthe sub-delegation of authority to the Manager of Appeals Services is ultra vires the powers of the Appeals Tribunal. In my respectful opinion, this ground of appeal is without merit.

Although s. 22(1) of the Act and s. 46 of the Workers’ Compensation Actinvest the Commission with the power to reconsider a decision previously made or to reopen, rehear, redetermine, review or readjustsuch a decision, as the case may be, s. 16(1) of the Act expressly allows the Commission to delegate any of the powers conferred upon itby the Act or the Workers’ Compensation Act.

Pursuant to this provision, the Commission delegated to the Chairperson of the AppealsTribunal the power to make decisions regarding applications for reconsideration and invested him with the power to sub-delegate someof his powers in this regard. For his part, the Chairperson of the Appeals Tribunal delegated to the Manager of Appeals Services [Ms.McCaie] the authority to determine if the evidence adduced on an application for a reconsideration of a decision of the Appeals Tribunalis “new and sufficient”.

This sub-delegation power is based on s. 16(2) of the Act, which provides that “[a] person may sub-delegate anypowers, authority, duty or discretion which has been delegated to the person under subsection (1), if permitted to do so by the terms andconditions of the delegation.” The jurisdiction of the Commission to delegate its power to the Chairperson of the Appeals Tribunal as well as the jurisdiction of theChairperson of the Appeals Tribunal to sub-delegate to the Manager of Appeals Services were considered by this Court in Bernier v.Commission de la santé, de la sécurité et de l’indemnisation des accidents au travail (N.-B.) (2000), (NB CA), 223N.B.R. (2d) 179 (C.A.), [2000] N.B.J.

No. 16 (QL), leave to appeal denied [2000] S.C.C.A. No. 508. In that case, the Court held as

follows, at paras. 4-6: [TRANSLATION]

Section 22 of the Workplace Health, Safety and Compensation Commission Act, S.N.B. 1994, c. W-14, empowers the Commission toreconsider any matter that it has previously decided where it is made to appear to the Commission that new evidence will be adducedsubstantially affecting the matter. Moreover, s. 16 of the above-mentioned Act provides for the delegation of the Commission and theAppeals Tribunal’s powers, duties, authority or discretion under the Act.

It specifically authorizes the Commission or the Chairperson ofthe Appeals Tribunal to delegate any of their powers to one or more persons in such a manner and subject to such terms and conditions asthe Commission or the Chairperson of the Appeals Tribunal considers appropriate. In addition, these provisions provide for the sub-delegation of these same powers and that a decision of a person to whom a delegation or a sub-delegation of powers has been made shallbe deemed to be a decision of the Commission.

At the hearing of this appeal, the court received in evidence, as further evidence, three documents (exhibits "A", "B" and "C") submittedby the Commission establishing that the powers of the Commission with respect to the reconsideration of new evidence sufficient tojustify a reconsideration had been effectively delegated to the chairperson of the Appeals Tribunal and that these same powers andauthority had been sub-delegated by the Chairperson of the Appeals Tribunal to Mrs. Louise M. Godbout.

In our opinion, this evidence clearly establishes that the delegation and sub-delegation of the authority of the Commission to determine ifthe evidence adduced on an application for a reconsideration of a decision of the Appeals Tribunal is new and sufficient was made inaccordance with the Act and that Mrs. Louise M. Godbout had the necessary authority to decide the issue that Mr. Bernier submitted tothe Appeals Tribunal in this matter. The documents adduced in evidence in Bernier are, for the most part, identical to those adduced in evidence in this case.

Thesedocuments establish the delegation of the powers of the Commission to the Chairperson of the Appeals Tribunal and the sub-delegationby the latter to the Manager of Appeals Services. In my opinion, the decision in Bernier constitutes a full and complete answer to the first ground of appeal. For the reasons given inBernier, I find that Ms. McCaie was fully authorized to determine the issue that Mr.

Bujold submitted to the Appeals Tribunal. [paras. 5-9] [4] In a letter dated April 22, 2010, the Manager of Appeals Services advised the appellant of her determinationthat a reconsideration of the Appeals Tribunal’s February 19, 2007 decision was justified. As she explained, that determination was madeafter a review of the additional information submitted in support of the application for reconsideration, the documents added to the filesince the February 19, 2007 decision and the information then available to the Appeals Panel.

The jurisdiction of the Manager ofAppeals Services to perform this gate-keeping role is undoubted on the authority of Bernier and Bujold. [5] However, at the outset of the hearing of the present appeal on September 27, 2011, the Court raised adifferent issue, namely the jurisdiction of the Appeals Tribunal itself to engage in a reconsideration of a matter it had previously decidedand to rescind, alter or modify one of its prior decisions, orders or rulings pursuant to s. 22(1) of the WHSCC Act. That question wasraised, but left unanswered, in Mattina v.

Workplace Health, Safety and Compensation Commission, 2005 NBCA 8, 279 N.B.R. (2d) 104and Page v. Workplace Health, Safety and Compensation Commission of New Brunswick, 2006 NBCA 95, 304 N.B.R. (2d) 128 at paras.65-68. Following that first hearing, which focused exclusively on the issue of jurisdiction, and at the Court’s behest, the respondent fileda comprehensive submission, seeking to draw support for the Appeals Tribunal’s jurisdiction from Gray v. Workplace Health, Safety andCompensation Commission (N.B.) (1996), (NB CA), 181 N.B.R. (2d) 25, [1996] N.B.J. No. 324 (C.A.) (QL); Phillipsv.

Workplace Health, Safety and Compensation Commission (N.B.) (1997), (NB CA), 184 N.B.R. (2d) 308, [1997]N.B.J. No. 21 (C.A.) (QL); Bernier; Ross v. New Brunswick (Workplace Health, Safety and Compensation Commission), [1999] N.B.J.No. 157 (C.A.) (QL); Moyer v. Workplace Health, Safety and Compensation Commission, 2008 NBCA 41, 331 N.B.R. (2d) 122 andLosier v. Workplace Health, Safety and Compensation Commission, 2008 NBCA 43, 331 N.B.R. (2d) 237.

The respondent supplementedits submission with documentary evidence, which it offered for the purpose of shedding light on the pertinent legislative context and theCommission’s related policies and practices. The Court did not require the appellant file a written submission on point, and he did not. [6] Upon resumption of the hearing on January 24, 2012, the Court received the evidence mentioned above. It didso in the exercise of the discretion conferred by Rule 62.21(2) of the Rules of Court.

We now turn to that evidence. [7] Prior to its amendment in 1997, which will be more fully discussed later in these reasons, s. 22 of the WHSCCAct read:

22(1) Notwithstanding any decision, order or ruling of the Appeals Tribunal, where it is made to appear to the board of directors that if a decision, order or ruling previously made by the Appeals Tribunal is reconsidered, new evidence will be adduced substantially affecting the matter, the board of directors has the authority to reconsider the matter previously dealt with by the Appeals Tribunal and to rescind, alter or amend any such decision, order or ruling previously made by the Appeals Tribunal. 22(2) Any decision, order or ruling of a board of directors under subsection (1) shall be final, subject only to an appeal to the Court of Appeal involving any question as to its jurisdiction or any question of law and

section 23 applies with such changes as are necessary. [Emphasis added.] [ 8 ] On February 15, 1995, the board of directors approved a recommendation that its powers under s. 22(1) be delegated to the Chairperson of the Appeals Tribunal with authority to sub-delegate. [ 9 ] On September 5, 1996, the board of directors approved a Governance Statement, which provided as follows: 2.7 Appeals Tribunal The Commission is responsible to establish an Appeals Tribunal, and to nominate and/or appoint such members as deemed necessary to carry out the appeal responsibilities, excluding the Chairperson and Vice-Chairpersons of the Appeals Tribunal, who are appointed by the Lieutenant-Governor in Council.

The Chairperson of the Appeals Tribunal is responsible to the board of directors for the operations of the Appeals Tribunal, within the guidelines established by the board of directors. The board of directors may delegate any of its powers, duties, authorities and discretion under the Acts to the Chairperson of the Appeals Tribunal .

The entitlement to an appeal before the Appeals Tribunal is prescribed in the WHSCC Act . […] 6.1 President and Chief Executive Officer The board of directors delegates to the President and Chief Executive Officer all decision making authority within the Workplace Health, Safety and Compensation Commission Act , the Workers’ Compensation Act and the Occupational Health and Safety Act , with the exception of: (

d) reconsideration of Appeals Tribunal decisions, s. 22 WHSCC Act ; […] 6.2 Chairperson of the Appeals Tribunal The role and responsibilities of the Chairperson of the Appeals Tribunal derives from specific authorities and responsibilities legislated respecting the Appeals Tribunal.

In addition, the board of directors delegates to the Chairperson of the Appeals Tribunal, all decision- making authority with respect to : - administration of the Appeals Tribunal system including the budget operation; s. 20(1) WHSCC Act ; - recruiting, assigning, and disciplining staff within the constraints of any collective agreement in force and according to the human resource policies of the Commission; s. 18 , 20(1) , WHSCC Act ; - ensure members and employees of the Appeals Tribunal take an oath of secrecy, s. 12 WHSCC Act ;

- administering reconsideration of previous appeals when there is new substantial evidence, with monitoring by the Appeals Committee; s. 22 WHSCC Act . Notwithstanding the above, the policies of the Commission apply to the Appeals Tribunal. The Chairperson of the Appeals Tribunal is responsible for the day-to-day operations of the Appeals Tribunal and shall ensure that the Tribunal functions in a business-like fashion and within governing legislation, regulation, by-laws and policies.

The Chairperson of the Appeals Tribunal may delegate his/her authorities as he/she sees fit . [Emphasis added.] [ 10 ] In Phillips v. Workplace Health, Safety and Compensation Commission (N.B.) , a researcher for the Appeals Tribunal ruled that “a reconsideration of the Appeals Panel decision [was] not justified”, thereby denying the applicant access to the Appeals Tribunal for a reconsideration.

On appeal from that ruling, the Court held the board of directors did not have jurisdiction to delegate any of its powers under s. 22(1) to the Chairperson of the Appeals Tribunal and, in turn, the Chairperson could not sub-delegate a strand of those powers to the researcher. The Court came to that conclusion because the board of directors was not one of the bodies invested with the power to delegate under s. 16(1) of the WHSCC Act : The issue before us is whether the board of directors has the power to delegate its authority to reconsider. The delegation of powers is contained in s. 16 of the Act .

Among the bodies and office holders permitted to delegate are the Commission, the President and Chief Executive Officer and the Chairperson of the Appeals Tribunal. There is no mention of the board of directors having a similar power.

Subsections 16(1) and 16(2) are as follows: 16(1) The Commission, the President and Chief Executive Officer and the Chairperson of the Appeals Tribunal may delegate any of their powers, duties, authority or discretion under this Act, the Workers’ Compensation Act or the Occupational Health and Safety Act, to one or more persons in such a manner and subject to such terms and conditions as the Commission, the President and Chief Executive Officer or the Chairperson of the Appeals Tribunal considers appropriate, as the case may be. 16(2) A person may sub-delegate any powers, authority, duty or discretion which has been delegated to the person under subsection (1), if permitted to do so by the terms and conditions of the delegation. […] In the result, the reconsideration of July 19, 1996 purporting to have been made under the authority of a subdelegation by the Chairperson of the Appeals Tribunal, who in turn purported to have been delegated by the board of directors on February 15, 1995, is set aside as having been made without jurisdiction.

The matter is remitted to the board of directors for determination by it under s. 22 of the Act . [paras. 5, 6, 10] [ 11 ] By memorandum dated January 29, 1997, the Chairperson of the Commission proposed to the Executive Council amendments to s. 22 of the WHSCC Act , all of which were designed to make plain the Commission was entitled to delegate its powers under s. 22(1) in relation to decisions of the Appeals Tribunal. The memorandum read as follows: A. SUBJECT: An amendment to

Section 22 of the Workplace Health, Safety and Compensation Commission Act . B. RECOMMENDED ACTION:

The Lieutenant-Governor in Council approves an amendment to

Section 22 of the Workplace Health, Safety and Compensation Commission Act as presented in Appendix “A”. C. BACKGROUND:

Section 22 of the Workplace Health, Safety and Compensation Commission Act states that the Board of Directors has the authority to reconsider a matter previously dealt with by the Appeals Tribunal. The Board of Directors has the authority to rescind, alter or amend a Decision of the Appeals Tribunal should there be “new evidence substantially affecting the matter”. On February 15, 1995, the Board of Directors delegated this power to the Appeals Tribunal under subsection 16(1) of the Workplace Health, Safety and Compensation Commission Act .

It was the Board of Directors’ understanding that Section 16(1) provided the authority for the Board of Directors to delegate the Reconsideration power of Section 22(1). On January 17, 1997, the New Brunswick Court of Appeal, in the case of Elaine Phillips v Workplace Health, Safety and Compensation Commission of New Brunswick , ruled that the Board of Directors sitting as a Board, is the body empowered to reconsider an Appeals Tribunal Decision. The Court of Appeal further ruled that this authority and responsibility could not be sub-delegated.

Prior to the enactment of the Workplace Health, Safety and Compensation Commission Act , the Workers’ Compensation Board reconsidered matters respecting Appeals Board decisions under the provisions of Section 34(3) of the Workers’ Compensation Act . The Workers’ Compensation Board had delegated this responsibility to the Appeals Board. With the enactment of

Section 22 of the WHSCC Act , the reconsideration authority under Section 34(3) of the Workers’ Compensation Act has been interpreted as providing reconsideration authority respecting decisions made at the administrative adjudicative level of the Commission.

Section 22 of the Workplace Health, Safety and Compensation Commission Act provides reconsideration authority respecting decisions made at the Appeals Tribunal level. With the introduction of the WHSCC Act , it was the intent of the Board of Directors to continue the previous practice of delegating reconsideration authority to the Appeals Tribunal for decisions at that level . Thus the delegation respecting

Section 22 of the WHSCC occurred on February 15, 1995. In 1996, 88 applications for Reconsideration were considered by the Appeals Tribunal. Given the number of applications for Reconsideration to the Commission each year, it is not practical nor efficient that the Board of Directors be convened as a Board to consider each Reconsideration matter. To maintain the previous effective practice, the Board of Directors recommends that

Section 22 of the Workplace Health, Safety and Compensation Commission Act be amended in a manner which will allow the Commission to delegate reconsiderations. [Emphasis added.] [ 12 ] We are given to understand, on the basis of the documentary evidence put before us, that the following explanatory note accompanied the memorandum to the Executive Council: The New Brunswick Court of Appeal Decision in the Elaine Phillips v. WHSCC determined that Reconsiderations of the Appeals Tribunal Decisions must be conducted by the Board of Directors sitting as a Board.

Prior to 1995 Reconsiderations of Appeals Board Decisions were processed by virtue of Section 34(3) of the Workers’ Compensation Act . Since 1995 such Reconsiderations have been processed pursuant to

Section 22 of the Workplace Health, Safety and Compensation Commission Act . Reconsiderations of Appeals Tribunal Decisions prior to and since 1995 have been allowed when an appellant (worker or employer)

submits new evidence which may substantially affect a matter that was previously decided. Prior to and since 1995, the Board of Directors of the WCB and WHSCC delegated to the Appeals Board/Tribunal the responsibility to reconsider decisions previously made at the Appeals level.

Given the number of applications received each year for Reconsideration of Appeals Tribunal Decisions, it is neither practical nor efficient that the Board of Directors be convened as a Board to reconsider each Reconsideration request . [Emphasis added.] [ 13 ] During first reading in the Legislative Assembly, the Minister of Advanced Education and Labour described as follows the purpose of the amendments to s. 22 proposed by the Commission through its Chairperson: The purpose of this bill is to provide authority to the commission to delegate matters of reconsideration.

The commission has for many years delegated matters of reconsideration to the Appeals Tribunal. However, in a recent case presented to the New Brunswick Court of Appeal, the court decided that reconsiderations under

section 22 of the Workplace Health, Safety and Compensation Commission Act could not be delegated. Given the number of applications received each year for reconsideration, it is neither practical nor efficient that the board of directors be convened as a board to consider each reconsideration request. [New Brunswick, Legislative Assembly, Hansard , No. 36, (21 February, 1997) at 20 (The Hon. Roly MacIntyre)]. L’objet du projet de loi est d’habiliter la commission à déléguer les affaires de reconsidération. La commission délègue au Tribunal d’appel les affaires de reconsidération depuis de nombreuses années.

Cependant, dans une affaire récemment entendue par la Cour d’appel du Nouveau-Brunswick, celle-ci a statué que les reconsidérations prévues à l’

article 22 de la Loi sur la Commission de la sant é, de la sécurité et de l’indemnisation des accidents au travail ne pouvaient être déléguées.

Étant donné le nombre de demandes de reconsidération reçues chaque année, il n’est ni pratique ni efficient de convoquer le conseil d’administration pour étudier chacune de ces demandes. [Nouveau-Brunswick, Assemblée législative, Hansard , n o 36 (21 février 1997), p. 20 (L’honorable Roly MacIntyre)] [ 14 ] On March 13, 1997, the board of directors reaffirmed, by resolution, the September 5, 1996 Governance Statement “as it relates to reconsiderations under the WHSCC Act, subsection 22(1) ”.

Recall that under that Governance Statement, the board of directors delegated to the Chairperson of the Appeals Tribunal all decision-making authority with respect to “administering reconsideration of previous appeals when there is new substantial evidence, with monitoring by the Appeals Committee; s. 22 WHSCC Act ”.

The Governance Statement also authorized the Chairperson to delegate “his/her authorities as he/she sees fit”. [ 15 ] On October 2, 1997, the board of directors approved the following amended version of its previously adopted Reconsideration Procedures: Upon new evidence being identified, a Reconsideration Hearing respecting the Appeals Tribunal Decision, Order or Ruling will: 1. be referred to the same Appeals Panel, where possible, which rendered the Appeals Panel decision under reconsideration ; [Emphasis added.] [ 16 ] On May 26, 2005, the board of directors adopted guidelines for the Appeals Tribunal, which state: Reconsideration

28. A mater previously decided by means of a Hearing may be reconsidered when new evidence is submitted which is judged to be sufficiently substantial that it may affect a previously reached Decision.

i) A request for reconsideration of an Appeals Tribunal decision shall be reviewed only upon the expiry of the 30-day time limit to request a statement of facts. ii) If a party has requested a statement of facts and is proceeding to the Court of Appeal of New Brunswick, a request for reconsideration shall not be reviewed until such time as the Court of Appeal has rendered its decision on the matter or that the Appeals Tribunal has received notification in writing by the party appealing that the appeal before the Court has been discontinued. iii) A request for reconsideration shall not be reviewed if any party, who is affected by a decision of the Court of Appeal of New Brunswick, has indicated an intention to appeal to the Supreme Court of Canada.

As in subsection ii) the request for reconsideration will only be reviewed upon notification in writing that the appeal has been discontinued or the appeal has run its course and the decision rendered. 29. The Chairperson of the Appeals Tribunal or designate will decide whether the new evidence is sufficiently substantial to warrant a reconsideration of a previous Decision. The parties involved will be informed of the decision respecting the new evidence and if applicable, the ensuing process to be followed. 30.

Where reconsideration is warranted, the matter will be referred to a Hearing consistent with the option through which the Decision being reconsidered was initially reached. [Emphasis added.] [ 17 ] Having carefully considered the pertinent statutory provisions, the respondent’s supplementary submission and the cases cited therein, as well as the documentary evidence referenced above, we are satisfied the Commission is entitled at law to delegate to the Appeals Tribunal its power to reconsider a matter previously decided by the Appeals Tribunal and to rescind, alter or modify its prior decisions, orders or rulings.

In our view, such delegation is authorized by s. 16(1) of the WHSCC Act ¸ which reads as follows: 16(1) The Commission , the President and Chief Executive Officer and the Chairperson of the Appeals Tribunal may delegate any of their powers, duties, authority or discretion under this Act , the Workers’ Compensation Act , the Firefighters’ Compensation Act or the Occupational Health and Safety Act , to one or more persons in such a manner and subject to such terms and conditions as the Commission, the President and Chief Executive Officer or the Chairperson of the Appeals Tribunal considers appropriate, as the case may be. [Emphasis added.] 16(1) La Commission , le président et administrateur en chef, et le président du Tribunal d’appel peuvent déléguer une

partie de leurs pouvoirs, de leurs fonctions, de leur autorité ou de leur discrétion en vertu de la présente loi , de la

Loi sur les accidents du travail , de la

Loi sur l’indemnisation des pompiers ou de la

Loi sur l’hygiène et la sécurité au travail , à une ou plusieurs personnes de la manière et sous réserve des conditions et modalities que la Commission, le président et administrateur en chef ou le président du Tribunal d’appel estiment appropriées, dépendant du cas. [Je souligne.] [ 18 ] The 1997 amendments to s. 22(1) were not adopted in a vacuum; s. 16(1) was then in place and, significantly, it did not provide any exception to or restriction on the Commission’s delegation powers.

Indeed, s. 16(1) provided, and continues to provide, the Commission may delegate “any of [its] powers, duties, authority or discretion” under the WHSCC Act and the Workers’ Compensation Act . This state of affairs no doubt explains why the Commission and the Legislature were confident the Board/Commission’s longstanding delegation practices, some of which Phillips had ruled out, would be authorized by the 1997 legislative amendments.

[19] Although it is true s. 16(1) allows delegation to “one or more persons”, the Appeals Tribunal’s adjudicativework is performed by panels, which consist of either a “person” or “persons” (s. 21(6)). It follows, from a textual analysis of s. 16(1),that the Commission was entitled to delegate to a panel of the Appeals Tribunal its power to reconsider the February 19, 2007 decision ofthe Appeals Tribunal rejecting a causal connection between the appellant’s fibromyalgia and any work-related “accident”. Moreover,nothing in the context or the overall statutory scheme contradicts that textual message.

Indeed, the evidence suggests rather strongly thatthe 1997 amendments to s. 22 were intended to restore to a state of legitimacy the Board/Commission practice of delegatingreconsideration of the Appeals Tribunal’s decisions, orders or rulings to the Appeals Tribunal. As an aside, we also note this well-established practice of delegation to the Appeals Tribunal makes practical sense.

Indeed, there are obvious advantages in entrusting tothe Appeals Tribunal the task of reconsidering its decisions on the basis of “new evidence” (e.g. practical experience with the appealprocedures and processes, including the hearing, deliberative and decisional processes).

Obviously, other advantages would be expectedto follow where one or more members of the original Appeals Panel are engaged in the reconsideration (e.g. superior acquaintance withthe evidential record, keen understanding of the issues previously debated, familiarity with the thought processes that led to thearticulation of the reasons for the earlier decision). [20] Finally, we would re-emphasize, perhaps unnecessarily, that the current statutory regime is significantlydifferent from the one that led to this Court’s decision in Phillips.

Indeed, the legislation under consideration in that case did notauthorize the delegation upon which rested the jurisdiction of the tribunal whose decision was challenged on appeal. It follows thatPhillips is distinguishable on that basis alone and does not provide a precedential answer to the jurisdictional conundrum underconsideration. That is likewise the case for Bosco v. Workers’ Compensation Board (N.B.) (1992), (NB CA), 130N.B.R. (2d) 116, [1992] N.B.J.

No. 584 (C.A.) (QL), where the issue was whether, having regard to s. 25.11(3) of the workers’compensation statute then in effect, the Appeals Board had jurisdiction to reverse a previous decision by which the claimant was found tobe entitled to compensation, “particularly when the same facts are involved” (para. 1) (emphasis added). The Court ruled the Boardcould not reverse its earlier determination in those circumstances.

The ratio decidendi of Bosco does not extend further; to be clear, itdoes not preclude delegation to the Appeals Tribunal of the Commission’s statutory power to reconsider a previous decision of theAppeals Tribunal, once it is demonstrated that a hearing is warranted on the basis of “new evidence”. That said, it remains the law that,in the absence of such evidence, reconsideration cannot take place, in which event reversal may be achieved only through this Court’sintervention on appeal. II. The Merits [21] After sustaining injuries at work, the appellant applied for compensation benefits.

On December 8, 2004, theCommission denied his claim. [22] On appeal, the Appeals Tribunal reversed. In a decision dated October 4, 2005, it determined degenerativechanges at the C-5, C-6 and L-4 levels of the appellant’s spine were work-related and caused disabling pain, which entitled the appellantto receive compensation benefits. The Appeals Tribunal went on to direct the Commission to consider the impact of other conditions,such as fibromyalgia, on the appellant’s entitlement to benefits. [23] In April of 2006, the Commission ceased paying benefits.

It did so after receiving an updated medical opinionwhich confirmed, at least in its view, that the degenerative changes to the appellant’s spine were minimal and unlikely to generatedisabling pain. The decision to terminate benefits was appealed, unsuccessfully, to the Appeals Tribunal. In its February 19, 2007decision dismissing the appeal, the Appeals Tribunal found “there is no causal connection established between a work-related event orevents and the fibromyalgia”.

The Appeals Tribunal’s decision was not appealed to our Court, and its sustainability is not in issue here. [24] However, and as mentioned, by letter dated April 22, 2010, the Manager of Appeals Services responded to theappellant’s submission of additional documents by directing a reconsideration of the Appeals Tribunal’s February 19, 2007 decision. Sheinformed the appellant and the Office of the Workers’ Advocate that “an appeals panel will have the opportunity to reconsider the matterand it may rescind, alter or amend the previous decision if the new evidence substantially affects the matter”.

The Manager went on toidentify the matter in question, namely “the Appeals Panel decision that there is no link established in the Appeal Record between Mr.Van Putten’s fibromyalgia and his work”. The Manager cautioned the Office of the Workers’ Advocate and the appellant that if this wasnot “the issue you wish reconsidered by the Panel, it is important that you contact me immediately to clarify”.

No objection was taken tothe issue as framed and, in the opening paragraph of its reasons for decision, the Appeals Tribunal describes the sought-after remedy as a“reconsideration of the Appeals Panel decision that there is no link established in the Appeal Record between [his] fibromyalgia and hiswork”. The present appeal is from the Appeals Tribunal’s reconsideration and confirmation of that decision. [25] As mentioned, reconsideration is permissible under s. 22(1) where it appears that if a matter previouslydecided is reconsidered “new evidence will be adduced substantially affecting the matter”.

Absent evidence of that nature, the AppealsTribunal is not entitled to rescind, alter or modify its prior decisions, orders or rulings (see, for example, Bosco v. Workers’

Compensation Board (N.B.) and Page v. Workplace Health, Safety and Compensation Commission of New Brunswick , per Robertson J.A.). In the decision under appeal, the Appeals Tribunal addressed that prerequisite: The Appeals Panel understands that the appellant was diagnosed with fibromyalgia and applied for compensation benefits saying that the fibromyalgia was caused by his work on the farm and the injuries he suffered at work.

The appellant’s request to link the fibromyalgia condition with his work was denied by the Appeals Tribunal in its decision of February 19, 2007, specifying that “[f]rom the medical evidence available and previously noted, there is no causal connection established between a work-related event or events and the fibromyalgia”. The appellant is now asking for reconsideration of that decision. The Appeals Panel determines that there is no new information in the Appeal Record that shows any association between the appellant’s fibromyalgia problem and his work.

The only medical reports added since the previous decision are Dr. Pascual’s report dated July 10, 2009 and Dr. Stocek’s report of June 26, 2008. The Appeals Panel notes that it is evident that Dr. Pascual based her impression on reports from the appellant since she specifies that “ [h]e claims that all the musculoskeletal symptoms started since he had an injury sustained while he was at work in the farm ”.

Following that, she also mentions that: It is difficult to attribute all the symptoms from the multiple injuries in the past although the temporal relationship is there and this can not be completely ruled out. As you may know, fibromyalgia may occur with or without the accident and given the fact that all the symptoms occurred since he started having multiple injuries while working in the farm, it is likely that the onset of the disease may be related to these past injuries . [Emphasis added.] Dr.

Pascual, specifies clearly that “ [a]s you may know, fibromyalgia may occur with or without the accident ” which again shows that the appellant’s fibromyalgia was not necessarily caused by work, but would appear to be based on the appellant’s subjective evidence in trying to make a link between work and the fibromyalgia. […] The Appeals Panel denies the appellant’s request for reconsideration since it was determined that there was no new evidence in the Appeal Record and no proof was brought forward at the hearing to link the appellant’s fibromyalgia with his work or with the injuries sustained at work. [Emphasis in original.] [ 26 ] The appellant bears the burden of establishing the Appeals Tribunal committed reversible error in coming to the conclusion that he failed to adduce “new evidence” on the matter of the causal link between his fibromyalgia and a work-related “accident” and in making the finding that “no proof was brought forward at the hearing to link [his] fibromyalgia with his work or with the injuries sustained at work”.

In our respectful judgment, he has failed to discharge that burden. [ 27 ] Like the Commission, the Appeals Tribunal must arrive at its reconsideration decisions “upon the real merits of the case” (see s. 21(9) of the WHSCC Act ). While the Appeals Tribunal complies with that fundamental adjudicative obligation by taking a case-specific flexible approach to what constitutes new evidence for s. 22(1) purposes, in the case at hand, the medical opinions offered by the appellant do not contradict the Appeals Tribunal’s prior decision.

Indeed, those opinions are equivocal regarding the existence of the requisite causal link between the appellant’s fibromyalgia and a work-related “accident”. The likelihood that the appellant’s fibromyalgia may be linked to work-related accidents hardly establishes that essential nexus on a balance of probabilities. Accordingly, we are duty bound to uphold the Appeals Tribunal’s decision on the issue of causation and the consequential rejection of the application for reconsideration under s. 22(1) . III. Disposition [ 28 ] For the reasons outlined above, the appeal is dismissed.

Each side will bear its own costs. ____________________________________

J. ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK _____________________________________ J.C. MARC RICHARD, J.A. ______________________________________ BRADLEY V. GREEN, J.A.