2012 NBCA 52, 2012 NBCA 52

COURT OF APPEAL OF NEW BRUNSWICK 134-11-CA LUCYANNA LEBRETON APPELLANT LUCYANNA LEBRETON APPELANTE - and - - et - WORKPLACE HEALTH, SAFETY AND COMPENSATION COMMISSION RESPONDENT COMMISSION DE LA SANTÉ, DE LA SÉCURITIÉ ET DE L’INDEMNISATION DES ACCIDENTS AU TRAVAIL INTIMÉE LeBreton v. Workplace Health, Safety and Compensation Commission, 2012 NBCA 52 LeBreton c.

Commission de la santé, de la sécurité et de l’indemnisation des accidents au travail, 2012 NBCA 52 CORAM: The Honourable Justice Bell The Honourable Justice Quigg The Honourable Justice Green CORAM : L’honorable juge Bell L’honorable juge Quigg L’honorable juge Green Appeal from a decision of the Appeals Tribunal of the Workplace Health, Safety and Compensation Commission: April 20, 2011 Appel d’une décision du Tribunal d’appel de la Commission de la santé, de la sécurité et de l’indemnisation des accidents au travail : Le 20 avril 2011 History of case: Decision under appeal: April 20, 2011 – (Decision No. 20115975) Preliminary or incidental proceedings: N/A Historique de la cause : Décision frappée d’appel : Le 20 avril 2011 – (Décision n o 20115975) Procédures préliminaires ou accessoires : S.O.

Appeal heard: January 31, 2012 Appel entendu : Le 31 janvier 2012

Judgment rendered: June 14, 2012 Jugement rendu : Le 14 juin 2012 Reasons for judgment by: The Honourable Justice Bell Motifs de jugement : L’honorable juge Bell Concurred in by: The Honourable Justice Quigg The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Quigg L’honorable juge Green Counsel at hearing: For the appellant: Lucyanna LeBreton appeared in person For the respondent: Matthew R. Letson Avocats à l’audience : Pour l’appelante : Lucyanna LeBreton a comparu en personne Pour l’intimée : Matthew R. Letson THE COURT The appeal is dismissed without costs.

LA COUR Rejette l’appel sans condamnation aux dépens. The judgment of the Court was delivered by BELL J.A. I. Introduction [ 1 ] On March 10, 1989, Lucyanna LeBreton, a nurse’s aide, suffered a serious back injury as a result of a workplace accident. Ms. LeBreton returned to work on March 27, 1989. Unfortunately, the seriousness of the injury went undetected in the initial months and years following the accident. Due to ongoing complications and pain symptoms, Ms. LeBreton stopped work on November 1, 1989.

The Workers’ Compensation Board (as it then was), rejected her application for loss of earnings benefits. [ 2 ] The severity of Ms. LeBreton’s injury and the challenges she faced in returning to work are reflected in the reports of medical practitioners who treated her in the months following her workplace accident. In a report dated August 27, 1990, Dr. E.D. Crawshaw, Orthopaedic Surgeon, expressed surprise that “this lady is not at present being covered by compensation” and attributed that to the fact she went back to work at an early date even though she continued to suffer discomfort. On April 30, 1991, Dr.

E.P. Abraham opined that her back problems “rendered her completely unable to work during the period November 1, 1989, to October 15, 1990”. [ 3 ] Ms. LeBreton appealed the refusal of the Commission to pay loss of earnings benefits to the Workers’ Compensation Appeals Board (as it then was). On August 27, 1991, Lucie A. LaVigne, Chairperson of the Appeals Board (as she then was), allowed Ms. LeBreton’s appeal.

[ 4 ] On December 15, 1992, Ms. LeBreton underwent spinal surgery. In his operative report, Dr. E.P. Abraham predicted six weeks to three months total healing time before she could return to work. During this time, Ms. LeBreton continued to receive loss of earnings benefits. Following her surgery, Ms. LeBreton made several attempts to return to work, the last of which was March 7, 1994. In a report dated March 22, 1994, Vocational Rehabilitation Worker Laurette Charron described Ms. LeBreton’s final attempt to return to work : […] Ms. LeBreton did work the night shift as scheduled on March 7.

However, on March 8, when she was rescheduled to do another night shift, she called in sick and complained of back pain. She was off on March 9 and again called in sick with back pain on March 10. On March 11, the Director of Nursing called her as she was again scheduled to come in on the night shift and Ms. LeBreton indicated that she had seen her family doctor who had put her off work completely. Mrs. Jackie Stewart, Director of Nursing, reports that Ms.

LeBreton indicated that her doctor was putting her off work completely and unable to do any type of work because of back problems. […] RECOMMENDATION Based on the Occupational Therapist’s report, my consultation with Jackie Stewart, Director of Nursing and Dr. P.J. Thompson’s report, the discharge

summary at the Workers’ Rehabilitation Centre, I do believe Lucyanna was offered suitable employment in two options: 1) night shift with no lifting and less strenuous duties, or 2) the 4 hour per day bedside bathing and centry tub bathing where again she would not be required to do heavy lifting as mechanical lifts and Mediman Lifts are available to her. [Statement of Facts – pp. 262-263] [ 5 ] The Commission terminated Ms. LeBreton’s benefits effective March 14, 1994 due to her failure to accept one of the accommodated employment options presented to her.

She did not immediately appeal that decision. [ 6 ] On November 25, 2008, Dr. Abraham examined Ms. LeBreton and reported as follows: This 49-year-old lady has had chronic low back pain, all of which seemed to start with a work related injury in 1989. I think that she ended up having a disc operation by myself in 1992. I cannot recall all of the details of how she has been over the years but she feels that she did initially have a good result from surgery in terms of leg pain relief. She has always had grumbling low back pain since the injury and since the surgery.

She has tried to work at different types of jobs but really has had a bad time of it over the years. More recently she has developed recurrent left sided leg pain with walking. About four years [ago] she had an MRI which demonstrated spinal stenosis involving the left leg. She also has a very degenerate L-5 S-1 disc. This would be in keeping with both her previous herniation and surgery. […] [ 7 ] On June 24, 2009, more than 15 years after the termination of her benefits, armed with Dr. Abraham’s report, Ms.

LeBreton informed the Commission that she possessed new information which “needs to be reviewed” and requested that her claim be “reactivated”. On December 17, 2009, the Commission responded that the findings and treatment plan of Dr. Abraham would be “accepted as a recurrence of your original injury”. However, the Commission determined that while the recurrence entitled Ms. LeBreton to continued treatment, she was not entitled to any loss of earnings benefit because she was not earning income at the time of the recurrence, nor had she earned any income in the 36 months prior thereto. [ 8 ] Ms.

LeBreton unsuccessfully appealed to the Appeals Tribunal from two decisions of the Commission: that of March 30, 1994, which terminated her loss of earnings benefits, and that of December 17, 2009, which concluded no loss of earnings benefits were payable upon the recurrence of the injury. II. Issues on Appeal

[ 9 ] Ms. LeBreton contends the Appeals Tribunal erred in concluding she was not entitled to loss of earnings benefits from 1994 onward. In advancing this position she says she was incapable, by reason of her injury, from performing the accommodated positions offered to her and that her disability continued from 1994 to the present. She says the “recurrence” of her injury in 2008 was not actually a recurrence; rather, Dr. Abraham’s 2008 report merely describes the on-going nature of her disability.

In the alternative, she claims that, in the event she is not entitled to benefits from 1994 to the present, she is entitled to loss of earnings benefits from November 25, 2008, the date of the recurrence of the injury. III. Standard of Review [ 10 ] Ms. LeBreton appeals via a statutory right of appeal set out in the Worplace Health, Safety and Compensation Commission Act , S.N.B. 1994, c. W-14 , which provides as follows: 21

(12) Any decision, order or ruling of the Appeals Tribunal 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. 21

(12) Toute décision du Tribunal d’appel est définitive, sujet seulement à un appel devant la Cour d’appel concernant toute question de compétence ou de droit. [ 11 ] The issues raised by Ms. LeBreton’s appeal are either questions of fact or questions of mixed fact and law. She raises no pure question of law. The Appeals Tribunal made findings of fact when it concluded: (

i) Ms. LeBreton failed to return to work in an accommodated position in 1994; and (ii) her total disability was not of a continuing nature from 1994 to the present. It decided a question of mixed fact and law when it concluded Ms. LeBreton was not entitled to loss of earnings benefits following the recurrence of the injury. The factual findings are reviewable on a standard of palpable and overriding error while that involving a question of mixed fact and law is subject to review on the reasonableness standard.

The circumstances in which factual errors may constitute errors of law contemplated by s. 21(12) were summarized by Drapeau, C.J.N.B. in VSL Canada Ltd. v. Workplace Health, Safety and Compensation Commission and Duguay et al. , 2011 NBCA 76 , [2011] N.B.J. No. 281 : Needless to say, findings of fact that played no significant role in shaping the outcome of the proceedings before the Appeals Tribunal cannot give rise to appealable questions of law or jurisdiction.

For an error of fact to be a reviewable and reversible error under s. 21(12), it must be: (1) the result of a palpable and overriding error in the assessment of the information in the record […]; (2) reflective of a failure to consider material information or material admissions; or (3) the by-product of an

interpretation of the record that no reasonable person could adopt […]. [para. 29] [Underlining in original.] [ 12 ] Robertson J.A., writing for a unanimous Court in Canada Post Corporation v. Carroll and Workplace Health, Safety and Compensation of New Brunswick , 2012 NBCA 18 , [2012] N.B.J. No. 50 (QL) , summarized the post- Dunsmuir 2008 SCC 9 , [2008] S.C.J. No. 9 landscape in New Brunswick as it applies to statutory appeals under the WHSCC Act .

He said: As would be expected, the New Brunswick jurisprudence recognizes that tribunal decisions involving a question of mixed law and fact […] must be accorded deference on the standard of reasonableness, as articulated in Dunsmuir . Questions of fact are reviewable on the standard of palpable and overriding error.

The review of factual determinations is consistent with the notion that a palpable and overriding error of fact qualifies as an error of law and also with s. 21(9) of the WHSCC Act […]. [Emphasis is mine.] [ 13 ] Justice Robertson cites, among others, VSL Canada Ltd . in support of the notion that in applying the WHSCC Act there remains three standards of review: (1) correctness for pure questions of law, (2) reasonableness for questions of mixed fact and law and (3) palpable and overriding error for questions of fact ( see also Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235 ; Canada Post Corporation v.

Carroll and Workplace Health, Safety and Compensation Commission of New Brunswick , para. 3 ; The City of Saint John v. The Workplace Health, Safety and Compensation Commission of New Brunswick and Rowe , 2008 NBCA 83 , 338 N.B.R. (2d) 213 , at para. 4 ; Fundy Linen Service Inc. v. Workplace Health, Safety and Compensation Commission , 2009 NBCA 13 , 341 N.B.R. (2d) 286 , at para. 12 ).

IV. Analysis A. Failure to Return to Work in March 1994 / Continuing Effects of the Injury [ 14 ] With respect to Ms. LeBreton’s failure to return to one of the accommodated positions offered to her, the Appeals Tribunal considered the report by Ms. Charron, the employer’s offers of accommodation and Ms. LeBreton’s unwillingness to attempt either of the accommodated positions. Given the record before it, I am not satisfied the Appeals Tribunal made any error, let alone a palpable and overriding one, when it concluded Ms.

LeBreton’s injury did not prevent her from attempting to work at one of the accommodated positions. [ 15 ] Similarly, I cannot find any palpable and overriding error in the Appeals Tribunal’s decision that Ms. LeBreton’s total disability did not continue from 1994 to the present. In this regard, I would note Dr. Abraham’s observations in his 2008 report that Ms. LeBreton had “tried to work at different types of jobs”, and that it was only recently that she “developed recurrent left-sided leg pain with walking”. Also, reports prepared in 2004 and 2005 by Ms. LeBreton’s family physician, Dr.

Hudson, concluded she was capable of working in a sedentary capacity. Those reports describe “sedentary capacity” as being capable of lifting up to 10 lbs. with occasional lifting, carrying, and walking. They constitute additional evidence upon which the Appeals Tribunal was entitled to rely to conclude the periods of total disability were not of a continuing nature. B. Date of Recurrence [ 16 ] When the Appeals Tribunal fixed the date of the recurrence of the injury as November 25, 2008, it relied upon Dr.

Abraham’s report in which he said “recently, [the appellant] has developed recurrent left sided leg pain with walking”. Absent any other evidence to fix the date of recurrence, the Appeals Tribunal did not make a palpable and overriding error when it relied upon Dr. Abraham’s report in that regard. C. Loss of Earnings [ 17 ]

Section 38.1(1) of the Workers’ Compensation Act , R.S.N.B. 1973, c. W-13, sets out the basis upon which an injured worker will receive compensation. The

section reads as follows:

38.1

(1) In this

section and in sections 38.11, 38.2, 38.5, 38.51, 38.52, 38.53, 38.6 and 38.8 “average earnings” means the daily, weekly, monthly, or regular remuneration that the worker was receiving at the time of the injury or recurrence of the injury , or receiving previously, or at the time of the loss of earnings, […] “average net earnings” means the average earnings of the worker less any income tax and premiums under the Employment Insurance Act and contributions under the Canada Pension Plan that would be payable by the worker based on those earnings; “loss of earnings” means (

a) average net earnings, less (

b) the earnings the worker is estimated to be capable of earning at a suitable occupation after sustaining the injury, less any income tax and premiums under the Employment Insurance Act and contributions under the Canada Pension Plan that would be payable by the worker based on those earnings; “maximum annual earnings” means the amount set pursuant to subsection (3); “pre-accident earnings” means the daily, weekly, monthly or regular remuneration that the worker was receiving at the time of the injury or recurrence of the injury , as may appear to the Commission best to represent the earnings of the worker; [Emphasis is mine.] 38.1

(1) Dans le présent

article et dans les articles 38.11, 38.2, 38.5, 38.51, 38.52, 38.53, 38.6 et 38.8 « salaire moyen » désigne le salaire quotidien, hebdomadaire, mensuel ou le salaire habituel que le travailleur recevait au moment de la lésion ou de la réapparition de la lésion ou avant ou encore à l’époque de la perte de gains […] « salaire moyen net » désigne le salaire moyen du travailleur moins l’impôt sur le revenu et les cotisations qu’il doit payer conformément à la

Loi sur l’assurance- emploi et au Régime de pensions du Canada du fait de ces gains; « perte de gains » désigne

a) le salaire moyen net, moins

b) les gains que le travailleur devrait être en mesure de tirer d’un emploi convenable après avoir été blessé moins l’impôt sur le revenu et les cotisations qu’il devrait payer conformément à la

Loi sur l’assurance- emploi et au Régime de pensions du Canada du fait de ces gains; « salaire annuel maximum » désigne le montant fixé en vertu du paragraphe (3); « gains avant l’accident » désigne la rémunération quotidienne, hebdomadaire, mensuelle ou régulière que le travailleur recevait au moment de la lésion ou de la réapparition de la lésion qui, d’après la Commission, peut le mieux représenter les gains du travailleur; [C’est moi qui souligne.] [ 18 ] Policy 21-210, established by the WHSCC , provides guidelines which the Commission and the Appeals Tribunal may use to calculate average earnings.

That policy, which is not challenged on this appeal, provides in part, as follows: WorkSafeNB establishes an injured worker’s average earnings by using various types of employment-related income (remuneration) that best represents the loss of earnings. [...]

To determine average earnings, WorkSafeNB uses the worker’s wages at the time of injury, recurrence of injury, or disablement from occupational disease, if those earnings best represent the worker’s loss of earnings. If the earnings immediately prior to the time of injury do not best represent the worker’s loss of earnings, WorkSafeNB may use a period of up to 36 months before the injury to establish a consistent earning pattern that best represents the injured worker’s loss of earnings. [ 19 ] Unfortunately, Ms.

LeBreton was earning no income on the date of the recurrence of the injury, nor had she earned any income during the 36 months prior thereto. The Appeals Tribunal referred to the applicable legislation and policy, applied the law to the facts, and concluded Ms. LeBreton did not suffer a loss of earnings as a result of the recurrence. Its decision on this question of mixed fact and law meets all the hallmarks of reasonableness. IV. Disposition [ 20 ] Although I have focused my analysis on the first part of the test for factual error espoused by Drapeau, C.J.N.B. in VSL Canada Ltd .

I would add there is no evidence the Appeals Tribunal failed to consider material information or that the decision is the by-product of an

interpretation of the record that no reasonable person could adopt. For all of these reasons, I would dismiss the appeal without costs. ____________________________ B. RICHARD BELL, J.A. WE CONCUR: _______________________________ KATHLEEN A. QUIGG, J.A. _______________________________ BRADLEY V. GREEN, J.A.