2013 NBCA 75, 2013 NBCA 75

COURT OF APPEAL OF NEW BRUNSWICK 30-13-CA DARCY MUNN APPELLANT DARCY MUNN APPELANT - and - - et - WORKPLACE HEALTH, SAFETY AND COMPENSATION COMMISSION OF NEW BRUNSWICK RESPONDENT COMMISSION DE LA SANTÉ, DE LA SÉCURITÉ ET DE L'INDEMNISATION DES ACCIDENTS AU TRAVAIL DU NOUVEAU-BRUNSWICK INTIMÉE Munn v.

Workplace Health, Safety and Compensation Commission of New Brunswick, 2013 NBCA 75 Munn c. la Commission de la santé, de la sécurité et de l'indemnisation des accidents au travail du Nouveau-Brunswick, 2013 NBCA 75 CORAM: The Honourable Justice Robertson The Honourable Justice Bell The Honourable Justice Green CORAM : l'honorable juge Robertson l'honorable juge Bell l'honorable juge Green Appeal from a decision of the Appeals Tribunal: January 7, 2013 Appel d'une décision du Tribunal d’appel : le 7 janvier 2013 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Appeal heard: November 21, 2013 Appel entendu : le 21 novembre 2013 Judgment rendered: December 19, 2013 Jugement rendu : le 19 décembre 2013

Counsel at hearing: For the appellant: Julian C. Williams For the respondent: Charles A. LeBlond, Q.C. Avocats à l'audience : Pour l’appelant : Julian C. Williams Pour l’intimée : Charles A. LeBlond, c. r. THE COURT The appeal is dismissed. The following is the judgment delivered by THE COURT [ 1 ] The appellant is an injured worker who was in receipt of compensation benefits paid pursuant to the Workers’ Compensation Act , R.S.N.B. 1973, c. W-13 (the Act ).

Although the Workplace Health, Safety and Compensation Commission (the Commission) initially assessed the appellant’s loss of earnings at $404.45 per week, this amount was, after investigation by the Commission into the appellant’s average earnings for the 52 weeks immediately prior to the accident, reduced to $82.52 per week.

The appellant appealed the reduction in benefits to the WHSCC Appeals Tribunal. [ 2 ] In a unanimous decision, the Appeals Tribunal concluded the appellant was a “contract employee […] and there was no expectation that this position was permanent, long term employment but rather a limited term project with the employment ending when the task is completed” (p. 6). Based upon that factual conclusion, the Appeals Tribunal concluded the appellant’s employment did not result in a “permanent change in his employment pattern” as that term is employed in WHSCC Policy 21-210, s. 7.2.

In the result, the Appeals Tribunal concluded the Commission properly averaged the appellant’s income over 52 weeks.

That averaging included periods when the appellant earned no income. [ 3 ] The appellant advances two grounds of appeal: namely, that the Appeals Tribunal “ignored evidence by drawing the wrong factual conclusions around the permanency or contract nature of the Appellant’s employment” and that the Tribunal breached its duty of fairness toward the appellant. [ 4 ] This court may only interfere with factual conclusions of the Appeals Tribunal if they are tainted by palpable and overriding error (see 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 ). The Appeals Tribunal considered all of the evidence, including evidence relied upon by the appellant, that the employer had, at one point, described the employment as “permanent”. The Appeals Tribunal, as it was entitled to do, did not find that evidence of “permanency” determinative of whether there had been a permanent change in the appellant’s employment pattern. We can find no error that would justify our interference.

[ 5 ] In addition, we draw attention to the observations of this Court in Gauthier v. Workplace Health, Safety and Compensation Commission, 2003 NBCA 25 , 259 N.B.R. (2d) 176 wherein, given the language of the Act , the Commission is permitted to take into consideration periods of “no employment” when determining average earnings for purposes of calculating compensation benefits. [ 6 ] We find there is no merit to the contention that the Appeals Tribunal violated its duty of fairness toward the appellant. [ 7 ] In the circumstances, we dismiss the appeal without costs. __________________________________ J.T.

ROBERTSON, J.A. _________________________________ B. RICHARD BELL, J.A. __________________________________ BRADLEY V. GREEN, J.A.