Enterprise Cape Breton Corporation (formerly Cape Breton Development Corporation) Appellant v. Michael Southwell, the Nova Scotia Workers’ Compensation Appeals Tribunal, Workers’ Compensation Board, v. the Attorney General of Nova Scotia, 2012 NSCA 23

NOVA SCOTIA COURT OF APPEAL Citation: Enterprise Cape Breton Corporation (Cape Breton Development Corporation) v. Southwell , 2012 NSCA 23 Date: 20120301 Docket: CA 338845 Registry: Halifax Between: Enterprise Cape Breton Corporation (formerly Cape Breton Development Corporation) Appellant v. Michael Southwell, the Nova Scotia Workers’ Compensation Appeals Tribunal, Workers’ Compensation Board, and the Attorney General of Nova Scotia Respondent Judge: The Honourable David P.S. Farrar Appeal Heard: November 21, 2011 Subject: Workers’ Compensation. Board Policy 8.1.7R1. Test for Introduction of New Evidence. Evidence Necessary to Find a Worker Suffers from an Occupational Disease.

Summary: The respondent, a former under underground mine worker, was exposed to “shotcrete”, a cement based product sprayed on the walls of the mine, for a period of approximately 8 months in 1995. He developed nasal polyps and sinusitis and filed a claim for workers’ compensation benefits in May, 1995, claiming that his sinus condition was as a result of an exposure in the mines. Originally, the inquiry focused on the appellant’s exposure to coal and limestone dust. His claim was denied by a decision dated November 8, 1995. In 2005 Mr.

Southwell sought to have his claim reconsidered based on new medical evidence and the acknowledgement by the appellant that he had been exposed to shotcrete. Over the next five years there are a number of reconsiderations and consideration of new evidence all resulting in Mr. Southwell’s claim being denied. On October 4, 2010, WCAT determined that there was new evidence warranting a reconsideration of the Board’s original November 8, 1995 decision and on that reconsideration it found that the respondent was entitled to compensation for an industrial disease.

Issues: Did WCAT err in its determination that: (

i) the evidence submitted by the worker was new evidence for the purposes of reconsideration; (ii) Mr. Southwell suffered from an “occupational disease”; (iii) in treating the new claim as a reconsideration of a final decision of the Board rather than a new claim? Result: Appeal dismissed. The new information submitted by the respondent in support of his claim met the new evidence criteria for reconsideration under Policy 8.1.7R1 and the evidence was sufficient to reconsider the Board’s original decision denying Mr. Southwell’s claim. The decision of WCAT is affirmed.

This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 24 pages. NOVA SCOTIA COURT OF APPEAL Citation: Enterprise Cape Breton Corporation (Cape Breton Development Corporation) v. Southwell , 2012 NSCA 23 Date: 20120301 Docket: CA 338845 Registry: Halifax Between: Enterprise Cape Breton Corporation (formerly Cape Breton Development Corporation) Appellant

v. Michael Southwell, the Nova Scotia Workers’ Compensation Appeals Tribunal, Workers’ Compensation Board, and the Attorney General of Nova Scotia Respondent Judges: Fichaud, Farrar and Bryson, JJ.A. Appeal Heard: November 21, 2011 in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Farrar, J.A.; Fichaud and Bryson, JJ.A. concurring.

Counsel: Nancy Barteaux and Isabelle French, for the appellant Danielle Morrison-MacNeil, for the respondent Michael Southwell Alexander MacIntosh, for the respondent Nova Scotia Workers’ Compensation Appeals Tribunal Paula Arab, for the respondent Nova Scotia Workers’ Compensation Board Reasons for judgment : Overview [ 1 ] On May 30, 1995, the respondent, Michael Southwell, filed an Industrial Accident Claim form claiming that he suffered from nasal polyps and sinusitis due to exposure to coal and stone dust during his employment as a mechanic in the appellant’s, Enterprise Cape Breton Corporation (ECB) mines. [ 2 ] On November 8, 1995, the Workers’ Compensation Board (the Board) found the worker’s condition was not work related and, therefore, non-compensable.

In 2005, Mr. Southwell sought to have his claim reconsidered and supplied new information to the Board about exposure to “shotcrete”, a cement-based product sprayed on the walls of the mine. The Board decided that the new information was new evidence warranting a reconsideration of his claim. However, it found that the new evidence was insufficient to alter the original decision of November 8, 1995. Mr. Southwell appealed this decision to a hearing officer. His appeal was denied on September 24, 2007. [ 3 ] Mr. Southwell appealed the Hearing Officer’s decision to the Workers’ Compensation Appeals Tribunal (WCAT).

WCAT referred the matter back to the Board for reconsideration of additional evidence that came to light during the hearing before WCAT. [ 4 ] On November 27, 2008, the Board again decided that the information was new evidence, but that it was insufficient to alter the previous final decision. [ 5 ] Mr. Southwell once again appealed the decision to a hearing officer who denied the appeal on April 16, 2009.

[ 6 ] Mr. Southwell appealed the Hearing Officer’s decision to WCAT. [ 7 ] By decision dated October 4, 2010, WCAT found that there was new evidence which warranted reconsideration of the final decision and that Mr. Southwell’s nasal polyps and sinus problems was an occupational disease caused by his exposure to shotcrete. [ 8 ] ECB appeals alleging that WCAT erred in its consideration of the new evidence and finding that Mr. Southwell suffered from an occupational disease. For the reasons that I will develop, I would dismiss the appeal and affirm WCAT’s decision. Background [ 9 ] Mr.

Southwell was a miner employed by Enterprise Cape Breton Corporation (formerly Cape Breton Development Corporation) from 1978 to 1994. In September of 1985, he was called in from a lay-off to work as part of a crew of five men who were to apply shotcrete. The product was sprayed on the walls of the mine to seal up air leakage and improve air flow. One individual sprayed with a hose and the others shovelled the product into a hopper.

The cement would travel through a hose approximately 50-60 feet in length to the man on the hose, known as the nozzleman, who would spray the shotcrete on to the walls. [ 10 ] For the first couple of weeks, the crew took turns spraying. However, after about a five week period, Mr. Southwell was the nozzleman exclusively. [ 11 ] There was some dispute about the duration of the job. Mr. Southwell’s employment records show that he was recalled to work on September 9, 1985 and laid off again on April 19, 1986.

It is noted in his employment record that he was working on shotcrete in the Lingan Mine for this duration of time. ECB argued the duration of the job was less than the eight months noted in the records. The Appeal Commissioner found that there were two, consecutive, four month periods when the work was being done. [ 12 ] During the actual spraying, visibility was poor and it was virtually impossible to see the person doing the spraying. There was a fog or mist that continued to worsen during the spraying which only improved after spraying ceased. [ 13 ] While spraying, Mr.

Southwell wore a rain suit, goggles and a simple paper mask of the type that was in general use in the mine. The paper mask would become saturated within a couple of minutes of spraying and would worsen to a point where Mr. Southwell could not breathe through it. When the spraying was complete he would have to be hosed off. [ 14 ] The spraying would take 20-30 minutes per box and there were three boxes each day. [ 15 ] During the spraying Mr. Southwell experienced some facial redness from exposure to the product.

He attempted to prevent this by applying Vaseline. [ 16 ] He also began experiencing some sinus symptoms including post nasal drip, which were treated with antihistamines and antibiotics. This information was received by WCAT primarily from Mr. Southwell's testimony before WCAT, together with MSI billing records and some chart notes. [ 17 ] The family doctor records for the period from the conclusion of work in 1986 to approximately 1990 are missing. In 1990 Dr. Mike Irvine, who was seeing Mr.

Southwell for unrelated problems, reported that the Worker has "a long history of nasal congestion and post nasal drip due to sinusitis." [ 18 ] By September of 1990 Mr. Southwell had been referred to Dr. R.G. Choski, an otolaryngologist for recurrent issues relating to his nose and sinuses. At that time no polyps were noted. Dr. Choski examined him again one year later and at that time Mr. Southwell had developed nasal polyps and a deviated septum. This was the time of Mr. Southwell's first surgery for removal of polyps.

[ 19 ] In 1993 Mr. Southwell was seen by Dr. Philip Curry, an ear, nose and throat specialist. By this time he had lost his sense of smell and a second surgery was performed to remove polyps. From this point forward Mr. Southwell underwent repeated surgeries for removal of polyps. He was eventually referred to Dr. David A. Kirkpatrick, head of the Division of Otolaryngology at Capital Health, and continued with the same course of treatment up to the hearing before WCAT. [ 20 ] In September of 1994, Mr. Southwell ceased work as a result of his sinus condition.

He applied for, and received CPP disability benefits. [ 21 ] As noted earlier, on May 30, 1995, Mr. Southwell filed an Industrial Disease Claim form with the Board, attributing his nasal polyps and sinusitis condition to exposure to coal and stone dust.

The finding of the Board in November of 1995 was that his condition did not arise out of and in the course of employment, having considered his work history and medical information it determined that there was no evidence that coal dust could cause nasal polyps with associated severe sinusitis. [ 22 ] In the course of making this determination in 1995, the Board requested information from ECB about substances the worker may have been exposed to in the workplace. ECB did not advise the Board that Mr. Southwell had been exposed to shotcrete.

It replied he had only been exposed to coal and limestone dust in the course of his employment as a belt mechanic. [ 23 ] In February, 1996, Mr. Southwell contacted Health Services at ECB looking for information on shotcrete. On February 20, 1996, his counsel received a letter from ECB informing him that no product called "shockcrete" had been used underground at Lingan mine. [ 24 ] The case languished until 2005, when the current application for reconsideration was commenced . In May, 2005, the Board requested information from ECB regarding any potential shotcrete exposure by Mr. Southwell.

By correspondence dated May 26, 2005, ECB confirmed Mr. Southwell had been exposed to shotcrete in 1995 but said the exposure was only for four months. [ 25 ] Also in 2005, Mr. Southwell provided the Board with medical reports from Dr. M. Virick from 2005, as well as medical reports from 1991, 1992, and 1994 regarding his condition. [ 26 ] By decision of January 26, 2006, the Occupational Disease Adjudicator determined that the information provided was new evidence, however, it did not change the final decision of the Board because the new evidence did not “support a connection between Mr.

Southwell’s nasal condition to an exposure to shotcrete for a 4 month period in 1986". [ 27 ] The January 26, 2006 decision was appealed to a hearing officer. However, the matter was referred back to an Occupational Disease Adjudicator to review additional evidence submitted in support of the appeal to determine if it was new evidence which warranted a change in the original decision. [ 28 ] By decision dated September 5, 2006, the Occupational Disease Adjudicator, again, determined that the information provided was new evidence. However, it did “not alter the November 8, 1995 final decision”.

She found that the symptoms between 1988 and 1990 pointed toward an infective process being present, but, considering all the medical information, she did not associate the disease with shotcrete exposure in 1986. [ 29 ] The decision of the Occupational Disease Adjudicator was again appealed to a hearing officer on October 5, 2006 and, once again, as a result of the issues raised on the appeal, the file was returned to the Occupational Disease Adjudicator for further review. The file was also sent to be reviewed by an independent medical specialist, Dr.

Janigan, a surgical and medical pathologist with a sub- specialty in occupational and environmental diseases. [ 30 ] The Occupational Disease Adjudicator then reviewed the claim to determine if the new information contained in Dr. Janigan’s review dated April 19, 2007, an emergency room report of Dr. Virick dated April 11, 2007, and a letter from ECB dated January 23, 2007, was new evidence and whether it would change the original decision.

[ 31 ] In a decision dated May 22, 2007, she accepted that there was new evidence and adopted the findings of Dr. Janigan. Dr. Janigan found that based upon the available medical documentation and the composition of shotcrete he could not find objective evidence to connect an allergic pathogenisis of Mr. Southwell's illness with exposure to shotcrete.

His support for this finding was that the wet particles as present in the sprayed product were too large to reach the nasal passages and cause the damage attributed to them. [ 32 ] The decision was appealed to the Hearing Officer on June 22, 2007 on the basis that the assessment that the particles were too large to reach the affected area was unsubstantiated. [ 33 ] The Hearing Officer’s decision dated September 24, 2007, upheld the decision of the Occupational Disease Adjudicator. [ 34 ] Continuing on with this saga, the Hearing Officer’s decision was appealed to WCAT and the matter proceeded to a hearing before the Tribunal on June 25, 2008.

After some evidence was heard, WCAT determined the matter should be referred back to the hearing officer as documentary evidence was discovered which Mr. Southwell’s counsel believed had been provided to the hearing officer by his previous counsel, but apparently it had not.

The parties consented to have the matter referred back to the Hearing Officer to assess the claim in light of the new information. [ 35 ] On August 11, 2008, the Hearing Officer, in turn, referred the matter back to the Occupational Disease Adjudicator. [ 36 ] The Occupational Disease Adjudicator received additional reports from Helen Mersereau, an Occupational Hygienist on behalf of Mr. Southwell, a report of Dr. Mike Irvine’s dated November 20, 1990 and a series of Mr. Southwell’s chart notes from November 26, 1990 to September 27, 1991.

In a decision dated November 27, 2008, the adjudicator accepted the evidence as new evidence but found it did not warrant a change in the original decision. [ 37 ] Not surprisingly, considering the history of this matter, the November 27, 2008 decision was appealed to a hearing officer.

By decision dated April 16, 2009, the Hearing Officer found the information provided on numerous occasions since the original decision was new evidence, however, the lack of immediate acute symptoms in the nasal passages or lungs in 1986 was taken to be determinative that the injury was not caused by the exposure to shotcrete. [ 38 ] The Hearing Officer’s decision was appealed. In a decision dated October 4, 2010, WCAT found that the new information submitted by Mr. Southwell in support of his claim was new evidence and the new evidence was sufficient to warrant a change of the original decision.

In the final result, Mr. Southwell, more than 15 years after his original application for benefits, and more than 25 years after his exposure to shotcrete, was found to be entitled to benefits for an occupational disease. [ 39 ] ECB sought leave to appeal WCAT’s decision and, by Order of this Court, dated June 16, 2011 was granted leave. Issues [ 40 ] ECB lists seven grounds of appeal as follows:

(1) Did WCAT err in its

interpretation of "occupational disease" as defined in s. 2 of the Act ?

(2) Did WCAT err in its determination of what evidence ought to be required to satisfy the definition of occupational disease?

(3) Did WCAT err in failing to apply the proper standard and burden of proof to its assessment of the evidence?

(4) Did WCAT err in:

i) finding that the Worker suffered from an occupational disease as defined in s. 2(v)(ii) rather than s. 2 (v)(

i) of the Act , which latter provision formed the basis of the worker's claim before the tribunal; or ii) failing to provide reasons explaining why it applied s. 2(v)(ii)?

(5) Did WCAT err in failing to apply the proper test for the reception and consideration of "new evidence" when conducting a reconsideration under s. 185(2) of the Act and Board Policy 8.7.1R1?

(6) Did WCAT err in deciding the evidence submitted by the worker satisfied the criteria for "new evidence"?

(7) Did WCAT err in treating the claim as a reconsideration of a final decision of the Board rather than a new claim? [ 41 ] ECB submits that six of the seven grounds of appeal should be reviewed on a standard of correctness either because they involve a determination of the proper legal test or a jurisdictional issue. It says only the sixth ground (whether the evidence submitted by the worker is “new evidence”) should be reviewed on a reasonableness standard. [ 42 ] Mr.

Southwell agrees with the appellant with the exception of the seventh ground of appeal (treating the claim as a reconsideration) which the appellant says raises a jurisdictional argument. Mr. Southwell argues that this is a determination which turns on the facts of the case and, therefore, should be reviewed on a reasonableness standard. [ 43 ] With respect, I disagree with both the appellant and the respondent where they say that any of these grounds of appeal should be reviewed on the correctness standard. [ 44 ] All of the grounds of appeal involve the

interpretation and/or application of the Workers’ Compensation Act , S.N.S. 1994-95, c. 10 (the Act ) and/or policies adopted by the Board pursuant to the Act . While they may involve questions of law, characterizing the issue as a question of law does not automatically attract the correctness standard. Recently, in Smith v. Alliance Pipeline Ltd. , 2011 SCC 7 , the Supreme Court of Canada held: [37] Characterizing the issue before the reviewing judge as a question of law is of no greater assistance to Alliance, since a tribunal’s

interpretation of its home statute, the issue here, normally attracts the standard of reasonableness ( Dunsmuir , at para. 54), except where the question raised is constitutional, of central importance to the legal system, or where it demarcates the tribunal’s authority from that of another specialized tribunal — which in this instance was clearly not the case. See also, Canada (Human Rights Commission) v. Canada (Attorney General) , 2011 SCC 53 at paras. 25-27 ; Halifax (Regional Municipality) v. Hoelke , 2011 NSCA 96 and Drake v.

Nova Scotia (Workers’ Compensation Appeals Tribunal) , 2012 NSCA 6 . [ 45 ] The determination of what evidence is necessary to show an individual suffers from an “occupational disease”, the articulation and application of the test for “new evidence”, whether the information provided constitutes new evidence, and whether the claim was properly a reconsideration of a final decision can hardly be said to be questions of central importance for the Canadian legal system nor can they be seen as outside the specialized expertise of the adjudicator. [ 46 ] The appropriate standard of review for all of the issues raised on this appeal is reasonableness.

[ 47 ] I would summarize and restate the grounds of appeal and address them in the following order: 1. Did WCAT err in determining that the evidence submitted by the worker was “new evidence” for the purposes of a reconsideration pursuant to s. 185(2) of the Act and Board Policy 8.7.1R1? 2. Did WCAT err in its determination that Mr. Southwell suffered from an “occupational disease” as defined in s. 2 of the Act ? 3. Did WCAT err in treating the claim as a reconsideration of a final decision of the Board rather than a new claim? 1.

Did WCAT err in determining that the evidence submitted by the worker was “new evidence” for the purposes of a reconsideration pursuant to s. 185(2) of the Act and Board Policy 8.7.1R1? [ 48 ] ECB says that the only question to be answered for the new evidence criteria is “whether the new evidence presented to the Board is sufficient to persuade it to alter the final decision”. With respect, this runs contrary to this Court’s decisions in Cherubini Metal Works Ltd. v.

Nova Scotia (Workers’ Compensation Appeals Tribunal) , 2001 NSCA 81 and Drake, supra . [ 49 ] In Drake , supra , this Court reviewed the test for the introduction of new evidence warranting a reconsideration under s. 185(2) of the Act and Board Policy 8.7.1R1 and summarized it as follows: [36] The test for the introduction of new evidence may be summarized as follows: 1. The evidence submitted must be new evidence in the sense of not being a reiteration of old evidence, and not available at the time of the original decision and must be capable of impacting on the original decision.

By this, the new information must be looked at to see if it has sufficient probative value in the fact-finding process to be capable of impacting the final fact-finding mission of the Board. It is not necessary at this stage of the analysis, to determine whether it would change the result. 2. If the new information fulfills the criteria in the first step, it then must be scrutinized, along with the evidence already on file, to determine whether the totality of the evidence justifies altering the original decision. [ 50 ] In his decision, the Appeal Commissioner set out the test as follows:

Section 185 of the Act allows the Board to reconsider any previous decision and confirm, vary or reverse that decision. Board Policy 8.1.7R1 structures this discretion and provides a two-step procedure. The first step is to determine whether “new evidence” has been received. In order to be “new evidence”, the information cannot be a reiteration of previous information on file, nor can it be a new argument based on the evidence previously on file. Also, the information must not have been available at the time of the previous decision.

Lastly, the information must be capable of impacting on the outcome of the final decision. If the information is “new evidence”, the Board reconsiders the previous final decision in light of all of the evidence. This is the second step . (Emphasis added) [ 51 ] The Appeal Commissioner’s articulation of the test for the introduction of new evidence is correct and follows this Court’s decisions in Cherubini and Drake .

The question, therefore, becomes whether his application of the test is reasonable in the circumstances of this case? [ 52 ] ECB takes particular exception to the statement of the Appeal Commissioner at p. 6 of his decision when he says:

In order to reconsider a previous decision, all that is required is that one piece of evidence meet the new evidence criteria. Once that is met, all the evidence available and on file is considered. It is not the case that each and every new piece of information meet the new evidence criteria in order to be further considered . I agree that the new evidence criteria was met in this case, .... (Emphasis added) [ 53 ] ECB says that this statement by the Appeal Commissioner means that: ... so long as one piece of evidence meets the “new evidence criteria” set out in Board Policy 8.1.7R1, all available evidence including (

i) materials already in the Board file; (ii) materials meeting the “new evidence” criteria, and (iii) other documentation not previously in the file that does not meet the “new evidence” criteria can be weighed during a reconsideration. ... I do not read the Appeal Commissioner’s decision as broadly as ECB.

In my view, the Appeal Commissioner was simply borrowing from the words of Freeman, J.A. in Cherubini, supra, when he found: [61] The Claims Adjudicator must determine pursuant to s. 1.2 of Policy 8.1.7R1 whether the evidence is truly new, capable of justifying alteration of the decision, and unavailable at the time of the impugned decision.

If it meets these criteria, the claim is reconsidered by determining whether the new evidence, combined with the old, justifies altering the decision .... (Emphasis added) [ 54 ] Read in context, I do not believe that the Appeal Commissioner intended that one piece of new evidence would open the door to consider any other evidence. I say this because in the sentence preceding his use of those words he makes reference to “all the evidence available and on file”. He also uses the evidence being “further considered” which suggests that the evidence was previously considered.

In my view, all the Appeal Commissioner intended to do was to reiterate the test from Cherubini, supra to say that once the new evidence criteria is met it will be considered with the other evidence on file to see if it justifies an alteration of the original decision. [ 55 ] If the Appeal Commissioner’s words can be read to suggest that only one piece of new evidence would allow him to consider documentation not previously on file and which does not meet the new evidence criteria, I would agree this is too broad an application of the test.

However, nothing turns on his statement in this particular case for a number of reasons: i. Despite this statement, he goes on to find that most, if not all, of the medical/legal reports meet the standard; ii. Originally, the employer denied Mr. Southwell had any exposure to shotcrete. After it was acknowledged that Mr. Southwell had been exposed to shotcrete, ECB provided a great deal more information about the exposure to shotcrete; and iii. The original decision by the Board was premised on an exposure to coal and stone dust.

Once it became known that the exposure was to shotcrete, the medical evidence, although previously available, had to be considered in light of the exposure being to shotcrete and not coal or limestone dust. The medical and other evidence took on new significance once it was known Mr. Southwell was exposed to shotcrete. [ 56 ] The exposure being considered commencing in 2005 is something completely different than what was being considered when the original decision was made in 1995 which required that all of the medical and other evidence be considered in assessing Mr. Southwell’s claim.

[ 57 ] I am satisfied that WCAT’s articulation of the test and its acceptance of the new information submitted by Mr. Southwell as “new evidence” was reasonable in these circumstances. I would dismiss all of the appellant’s grounds of appeal dealing with the new evidence issues. 2. Did WCAT err in its determination that Mr. Southwell suffered from an “occupational disease” as defined in s. 2 of the Act ? [ 58 ] ECB is a federally regulated enterprise and, therefore, the Government Employees Compensation Act , R.S.C 1985, c. G-5 ( GECA ) applies.

Under GECA a worker is entitled to compensation when he is disabled due to “an industrial disease”. [ 59 ] “Industrial disease” is defined as follows: “industrial disease” means any disease in respect of which compensation is payable under the law of the province where the employee is usually employed respecting compensation for workmen and the dependants of deceased workmen. [ 60 ] To be entitled to benefits, Mr. Southwell had to establish that he suffers from an “occupational disease” as that term is defined in s. 2 (

v) of the Act : 2. In this Act ... (v) "occupational disease" means a disease arising out of and in the course of employment and resulting from causes or conditions (

i) peculiar to or characteristic of a particular trade or occupation, or (ii) peculiar to the particular employment, and includes silicosis and pneumonoconiosis [pneumoconiosis]; [ 61 ] ECB raises a number of issues with WCAT’s determination that Mr. Southwell suffered from an occupational disease. I will address each of the issues raised separately. (

a) WCAT erred in finding that Mr. Southwell suffered from an occupational disease as defined in s. 2 (v)(ii) rather than 2(v)(

i) of the Act [ 62 ] ECB argues that WCAT erred in finding that Mr. Southwell suffered from an occupational disease under s. 2 (v)(ii) of the Act when he argued his claim under s. 2(v)(

i) of the Act . With respect, this argument is without merit. [ 63 ] There are no pleadings as such, in the workers’ compensation context, therefore it is necessary to look at the decisions leading up to the WCAT decision to determine what was in issue before WCAT. The decision under appeal to WCAT was from the decision of a hearing officer dated April 16, 2009. In that decision, the hearing officer concludes:

... I find that although the additional material submitted at the time of the oral hearing before the Appeal Commissioner represents new evidence in that it is simply not a reiteration of evidence already on file and before decision-makers at the time of the November 8, 1995 final decision, I find that it is insufficient to alter that final decision. This is primarily based on Dr. Janigan’s

interpretation that this evidence does not support a causal and effect relationship between the Worker’s sinus problems and his exposure to Shotcrete in the workplace. Although Shotcrete contains an alkaline agent that can affect the skin on contact, there is no compelling evidence that the Worker developed acute sinus or bronchial symptoms immediately following the exposure which, as confirmed by Dr. Janigan, would be the toxic pathology if such an agent could reasonably cause the sinus and bronchial symptoms claimed by the Worker.

There were two issues before the Hearing Officer: new evidence and causation. [ 64 ] The decision of the Hearing Officer found that there was new evidence but it was insufficient to show causation. As a result, there was no finding that Mr. Southwell suffered from an occupational disease under either of the subsections. [ 65 ] The notice of appeal filed by Mr.

Southwell raised a number of issues including: The Hearing officer failed in, on the facts as presented by the worker, his co-workers, and uncontested by the employer, refusing to accept dangerous exposure to caustic particulates and the causal relationship between the exposure to those caustic particulates and the worker’s sinusitis, rhinitis and Nasal Polyps. [ 66 ] The notice of appeal does not particularize the basis upon which Mr. Southwell is seeking compensation. It focuses on causation. [ 67 ] Section 246(1) of the Act gives WCAT a broad discretion when considering an appeal from a hearing officer.

It provides: 246 The Appeals Tribunal shall decide an appeal according to the provisions of the Act , the regulations and policies of the Board and, (

a) documentary evidence previously submitted to or collected by the Board; (

b) subject to s. 251, any additional evidence the participants presents; (

c) the decision under appeal (

d) the submissions of the participants ; and (

e) any other evidence the appeals tribunal may request or obtain. (Emphasis added) [ 68 ] There was no suggestion in the submissions of either of the parties that the Appeal Commissioner should not consider s. 2 (v)(ii) in determining Mr. Southwell’s right to compensation. ECB in its post-trial brief to WCAT specifically references and highlights ss. 2 (v)(

i) and 2 (v)(ii) and submits: Therefore, in order to be an occupational disease, it is not sufficient to show that the Worker’s condition can be linked to the workplace. The Worker must also show that its condition is “peculiar to or characteristic of a particular trade or occupation” or “peculiar to the particular employment”.

[ 69 ] ECB concludes its argument on this point as follows: Given the Worker has not shown that his condition is “peculiar to or characteristic of a particular trade or occupation” or “peculiar to the particular employment”, it is not necessary to consider the other issues. ... [ 70 ] ECB does not argue that the Appeal Commissioner could not determine the issue on s. 2 (v)(ii) of the Act . To the contrary, ECB submitted that it was incumbent upon Mr. Southwell to satisfy the definition of “occupational disease” in s. 2 (v)(

i) or 2 (v)(ii). It submitted Mr. Southwell had done neither. [ 71 ] To now suggest that the Appeal Commissioner erred in taking into consideration that which he was mandated to do by the Act and addressed in ECB’s submissions to him is entirely without merit. (

b) WCAT erred in failing to provide reasons why he applied s. 2 (v)(ii): [ 72 ] ECB’s argument that the Appeal Commissioner erred in failing to explain why he applied s. 2 (v)(ii) also fails. There was no need to explain why he chose one over the other when he was required to consider both. Even if it were, the Appeal Commissioner’s reasons adequately explain why he found for Mr. Southwell under s. 2 (v)(ii). At pp. 7 of the decision he says: As for the cases cited by the Employer, I do not consider them on point with the present.

Decision 2006-311 was focussed on post traumatic stress disorder and whether it resulted from causes or conditions “peculiar to or characteristic of a particular trade or occupation ...”. The decision did not address whether the PTSD satisfied the second branch of the occupational disease definition, i.e., whether it resulted from causes or conditions “peculiar to the particular employment.” ... In my view, Employer’s counsel would require a standard of evidence that exceeds what is required under the Act for establishing the presence of an occupational disease.

I agree with Employer counsel that the first part of the occupational disease definition requires evidence, usually scientific, statistical and/or epidemiological in nature, that a condition is particular to or characteristic of a particular trade or occupation. ...

The second part to the occupational disease definition requires that a worker demonstrate that the disease arises out of and in the course of employment and result from causes or conditions “peculiar to the particular employment”. ... [ 73 ] The Appeal Commissioner explains, quite clearly, why he used the definition in s. 2 (v)(ii) rather than 2(v)(i). He looked at the authorities cited to him, the evidence presented and found that Mr. Southwell’s case fell within the definition of occupational disease in s. 2 (v)(ii). I would dismiss this ground of appeal. (

c) WCAT erred in its

interpretation of “occupational disease” as defined in s. 2 of the Act : [ 74 ] Although ECB characterizes this as an

interpretation issue, their argument really focuses on the evidence required to establish that an occupational disease exists. In its factum, it puts the issue thusly: 32. The WCAT wrongly found that s. 2 (v)(

i) requires “evidence, usually scientific, statistical and/or epidemiological in nature, that a condition is peculiar to or characteristic of a particular trade or occupation” whereas s. 2 (v)(ii) is to be determined “according to the same information that generally supports cause and effect relationships between symptoms and workplace factors.” [ 75 ] The appellant’s argument boils down to this: in order for WCAT to determine that Mr.

Southwell suffered from an occupational disease, he would have to show through scientific or epidemiological studies that there was a higher incidence of the disease in his employment. Since he did not present any such scientific epidemiological evidence, his claim must fail. The Appeal Commissioner considered ECB arguments and concludes at p. 8:

In my view, Employer’s counsel would require a standard of evidence that exceeds what is required under the Act for establishing the presence of an occupational disease. I agree with Employer counsel that the first part of the occupational disease definition requires evidence, usually scientific, statistical and/or epidemiological in nature, that a condition is peculiar to or characteristic of a particular trade of occupation. ...

The second part to the occupational disease definition requires that a worker demonstrate that the disease arises out of and in the course of employment and result from causes or conditions “peculiar to the particular employment”. The focus of this inquiry is much narrower, and does not, in my view, require evidence showing a higher prevalence of the disease in the trade or occupation.

Rather, that question can be resolved according to the same information that generally supports cause and effect relationships between symptoms and workplace factors. [ 76 ] The Appeal Commissioner draws a distinction between occupational diseases that are peculiar to or characteristic of a particular trade or occupation and those that are peculiar to a particular employment.

In order to establish that the occupational disease satisfied the first part of the definition, it would normally require that the nature of the work process in a particular trade or occupation significantly increased the likelihood of causing a particular disease in workers who work in that trade or occupation. [ 77 ] With respect to the second part of the definition, peculiar to a particular employment, it would be necessary to identify factors in the workplace that are known to cause a disease or present evidence that a workplace is the cause of, or significantly increased, the risk of disease or a substance can be identified in the workplace as being the cause of the disease.

The first part of the definition focuses on the trade or occupation. However, the second part of the definition focuses on the workplace and the factors which may be present in that workplace which may cause the disease. [ 78 ] Although scientific or epidemiological evidence may be presented in order to establish that the particular workplace significantly increased the risk of the disease, it is not always necessary. [ 79 ] ECB suggests that the Appeal Commissioner’s decision on this issue is inconsistent with the Board’s written policy and statements of its approach to occupational disease claims.

It references the paper Workers’ Compensation Board of Nova Scotia “General Entitlement – Occupational Disease Recognition: Final Program Policy Decision and Supporting Rationale” . ECB cites from page 10 of the paper as follows: The “peculiar to” analysis involves recognition that an exposure causes a disease. This is a medical conclusion/inference based on medical and scientific literature .

In the same way that the medical and scientific community recognizes that smoking is a common cause of lung cancer, the medical and scientific community recognizes that specific exposures which cause specific diseases may be particular to certain types of employment. “This general conclusion or inference is different than “arising out of and in the course of employment” . [Emphasis in ECB’s factum] [ 80 ] ECB’s suggestion is that, despite what the medical literature may say, if there is no scientific epidemiological study showing a higher prevalence of the disease in a particular employment then there can be no finding of occupational disease. [ 81 ] The paper referred to was prepared in contemplation of the issuance of a new policy adjudicating occupational disease claims.

The authors say at p. 6: The legislation requires the WCB to determine whether the occupational disease is arising out of or in the course of employment. To make this determination, the WCB must gather information about exposure(

s) including type, nature, duration and level. The mechanisms resulting in the development of disease are numerous and complex. Exposures may be of short term, intermediate or long term duration. If toxological evidence indicates that long term exposure to a substance is a necessary precondition to disease then evidence respecting duration must be considered. If the worker was exposed to a dose of a substance well below that which is necessary to cause an adverse or harmful effect then this evidence is relevant to the determination of arising out of and in the course of employment.

Since an adjudicator may consider medical evidence respecting the duration and level of exposure, the WCB has not made any changes to the language of the policy.

[ 82 ] As can be seen by this excerpt, it is not being suggested that the type of evidence that may be considered for the determination of whether an individual suffers from an occupational disease should be restricted. As the authors note, the mechanism for the development of occupational diseases are numerous and complex and have many variables. The evidence to be considered will vary having regard to the length and level of exposure. [ 83 ] I pause here to comment that ECB does not take issue that Mr. Southwell’s condition is as a result of his exposure to shotcrete.

But rather, the evidence submitted does not bring it within the category of an occupational disease. ECB’s position is difficult to reconcile in light of the evidence on file. That is, Mr. Southwell was exposed to shotcrete for a significant period of time, the shotcrete can cause the type of condition which he has, and his condition progressed over time to a point where he could no longer continue to work. [ 84 ] Finally, reference is made by ECB to the Workers’ Compensation Board Policy No. 1.2.14 which came into force on February 11, 2010.

Although ECB notes that it is not specifically applicable to claims pre-dating February 11, 2010, it says it is instructive for the purposes of determining the evidence the Board looks for in determining whether an individual has an occupational disease.

In para. 35 of its factum, ECB says: ...the Policy again states that the Board “evaluates medical and scientific literature to determine if the disease is resulting from causes or conditions peculiar to or characteristic of a particular trade or occupation; or peculiar to the particular employment…” However, a closer review of the policy does not restrict the Board’s consideration of evidence as suggested by ECB. In particular, s. 3(

a) of the policy provides: 3. Occupational disease claim adjudication process To accept a claim for compensation the WCB must determine whether the disease is an occupational disease that is arising out of and in the course of employment. To determine eligibility the WCB: (

a) Evaluates medical and scientific literature to determine if the disease is resulting from causes or conditions peculiar to or characteristic of a particular trade or occupation; or peculiar to the particular employment; and (

b) Gathers evidence specific to the claim to determine if the disease is arising out of and in the course of employment. (

a) Evaluating medical and scientific literature to determine if the disease is resulting from causes or conditions peculiar to or characteristic of a particular trade or occupation; or peculiar to the particular employment The WCB considers medical and scientific literature to determine whether there is a causal connection between an exposure and a disease.

The WCB may consider, among other things, the following questions: ☐ Is there a biologically plausible relationship between the reported exposure and the condition? ☐ Did the condition occur after a reasonable duration of exposure and latency based on current medical/scientific knowledge? ☐ Is the condition linked to a specific type of exposure as opposed to multiple exposures? ☐ Is there consistency across the literature on the relationship between the reported exposure and the condition?

☐ What is the incidence of the condition under study between those exposed and those not exposed? ☐ Does the employment expose the worker to a greater risk of this type of disease than the normal risk/incidence to the public at large? ☐ Is there an abnormal prevalence of the disease in people carrying out the same employment? [ 85 ] As can be seen by the use of the word “may” the policy is simply providing a guideline for the type of evidence that the Board may consider in determining whether a condition is an occupational disease. [ 86 ] In this particular case, the Appeal Commissioner found that Mr.

Southwell’s condition was linked to a specific type of exposure in the workplace, i.e., shotcrete. The medical and other evidence before him was sufficient for him to conclude that Mr. Southwell’s condition was peculiar to his particular workplace. [ 87 ] His determination of what evidence was necessary in order to establish an occupational disease follows an intelligible line of reasoning to a conclusion. That conclusion occupies a range of possible, acceptable outcomes ( Dunsmuir v.

New Brunswick , 2008 SCC 9 at para. 47 ). [ 88 ] Before leaving this area, I want to comment on ECB’s submission that the previous decisions of WCAT settled the applicable legal test and the decision in this case is inconsistent with those decisions. In particular, it cites WCAT decision No. 2006-311-AD at p. 4 as follows: Typically, an occupational disease is one where causation can be inferred merely by the extent of occupational exposure and a diagnosis. For example, lung cancer or mesothelioma in asbestos workers can be inferred to be work-related with ten years of, occupational exposure.

For other occupational diseases, such as coal miners pneumonoconiosis, the diagnosis alone is sufficient to give rise to a rebuttable assumption that it arose from employment. If not set by Board policy or by legislation, typically, this tribunal has relied on expert

interpretation of epidemiological studies in determining whether a disease is an occupational disease (for example, Decision 2006-988-AD, June 4, 2007) . [Emphasis in appellant’s factum] [ 89 ] ECB’s submission ignores WCAT’s suggestion that while “typically” the tribunal has relied on expert

interpretation of epidemiological studies, it in no way limited the evidence which could be relied upon by WCAT in determining the existence of an occupational disease.

Further, in my view, this case was properly distinguished by the Appeal Commissioner at paras. 7 and 8 of his decision where he found that it focussed on the first part of the test relating to trade or occupation and not the particular employment. [ 90 ] Similarly, WCAT Decision 2006-988-AD was distinguishable in that it also focussed on the first part of the test and the matter was returned to the Board for determination of whether the condition resulted from causes or conditions peculiar to the individual’s particular employment. [ 91 ] For all of these reasons, I am satisfied that the Appeal Commissioner, in determining the type of evidence necessary to establish an occupational disease, did not commit any reversible error and, therefore, we cannot interfere. [ 92 ] I would dismiss this ground of appeal. 3.

Did WCAT err in treating the claim as a reconsideration of a final decision of the Board rather than a new claim?

[ 93 ] ECB argues that the worker’s claim has been altered so significantly as to amount to an altogether new claim which ought not to be considered under a reconsideration but rather as a new claim. In its factum, ECB states as follows: 80. ...Specifically, the final decision which the Worker sought to have reconsidered is that of November 8, 1995. At that time, the Worker alleged he suffered from “industrial sinusitis and nasal polyposis” due to exposure to coal and stone dust between 1978 and September 15, 1994.

Before the WCAT, the Worker's counsel argued that the Worker's disease was “inflammation of the respiratory tract” and not “nasal polyps” and that the condition had been caused by spraying shotcrete for an eight month period between September 1985 and April 1986. [ 94 ] For the reasons which I have already given under the introduction of new evidence, I agree that the basis of Mr. Southwell’s claim has changed since it was confirmed that he had been exposed to shotcrete, however, the condition for which he sought compensation has not changed.

Had it been known that he had been exposed to shotcrete earlier, the claim would have taken on a different complexion and different considerations would have applied. ECB’s position that because it is shotcrete that is the alleged exposure makes it a new claim cannot succeed. It was ECB’s error that caused the claim to be considered solely as an exposure to coal and limestone dust. It was only some time later in 2005 that it was disclosed that Mr. Southwell had been exposed to shotcrete.

At this point the claim was being considered based on a different exposure. [ 95 ] At the outset of this decision, I outlined in considerable detail the proceedings and evidence that has been presented on Mr. Southwell’s claim since it was first filed in 1995. My reason for doing so was two-fold: first, to provide background to the issues that eventually came forward to WCAT; and secondly, to show that despite the number of appeals and the new information being provided the reconsideration, at all times, related back to Mr. Southwell’s condition for which he originally sought compensation in 1995.

Although the characterization of the medical condition may have changed over time, the evidence, and the decisions have always been considering Mr. Southwell’s condition at the time of the original decision of the Board to deny him compensation in 1995. The issue for determination has not changed in the almost 17 years since Mr. Southwell first filed his claim for compensation. [ 96 ] I am satisfied that the Appeal Commissioner reasonably found this was a proper case for reconsideration. [ 97 ] I would dismiss this ground of appeal. Conclusion [ 98 ] The appeal is dismissed, the decision of WCAT is affirmed.

Farrar, J.A. Concurred in: Fichaud, J.A. Bryson, J.A.