In the case of Guitard v. Workplace Health and Safety Compensation Commission, the Court of Appeal of New Brunswick dismissed an appeal from the Workers’ Compensation Appeals Tribunal (Appeals Tribunal), finding that absent a palpable and overriding error, the Appeals Tribunal’s decision must be given deference.
Background and Initial Disability Award
In May 2012, Guitard sustained a lower back injury at work and diagnosed with a soft tissue lumbar strain, leading to a one-week work leave. The Workplace Health, Safety and Compensation Commission (Commission) accepted his claim for this lumbar strain. In June 2012, Guitard experienced another work absence due to a recurrence of his lumbar strain, which the Commission also accepted. Guitard returned to work and continued working until February 25, 2013, when he was released from employment. In May of 2015, Guitard contacted the Commission and advised that he was experiencing back pain and had not worked since 2013. A physician’s report in March 2016 indicated moderate stenosis with spinal compression and the need for physiotherapy. The Commission sought medical opinions and was advised Guitard’s complaints were not attributable to his previous lumbar strain injury. Based on the evidence submitted, the Commission determined that the claim would not be reopened. Guitard appealed this decision. In June of 2021, the Appeals Tribunal concluded Guitard had suffered a recurrence of his injury and directed the Commission to provide the benefits to which Guitard was entitled retroactive to March 18, 2016.
Subsequent Commission Decision
Following the June 2021 Appeal Tribunal decision, the Commission examined Guitard’s earnings from 2011 to 2019 and found that Guitard had earned no income from employment since February of 2013. In December of 2021, the Commission advised Guitard that he did not meet the criteria for loss of employment benefits. Guitard requested a review of the Commissions December 2021 decision. The Commission’s Decision Review Office confirmed the decision and advised Guitard that he did not meet the criteria for employment benefits. In January of 2022, Guitard appealed the Commission’s decision to the Appeal Tribunal.
Appeal Tribunal Decision
During the appeal hearing, Guitard asserted that his symptoms stemming from his initial injury had persisted since the accident’s occurrence. The Appeals Tribunal addressed Guitard’s efforts to revaluate whether his injury was a recurrence or a continuation. The Appeals Tribunal pointed out that the recurrence issue had already been decided by the previous Tribunal, and if he had any objections to how the injury was classified, he should have appealed that decision. The Appeals Tribunal clarified that the current appeal’s purpose was to examine the Commission’s decision regarding his entitlements to loss of earnings benefits. In September 2022, the Appeals Tribunal denied the appeal, reasoning that Guitard had not earned any income from employment for three years leading up to the recurrence date, and as such, no loss of earnings could be attributed to the recurrence.
Court of Appeal of New Brunswick, Standard of Review
Guitard argued that the Appeals Tribunal did not conduct a purposive analysis of ss. 38.1(1) and 38.11(2) of the Workers’ Compensation Act. Consequently, they failed to accurately interpret and apply these sections, especially in terms of assessing the impact on his earnings beyond the day of the injury. Further, Guitard argued that the best evidence of his earning was the salary he earned while with his former employer. The Commission argued that the essence of this appeal concerns a finding of fact with respect to Guitard’s average earnings at the time of the recurrence of his injury on March 18, 2016.
The Court of Appeal, following the Longphee principles, applied the palpable and overriding standard of review to assess the appeal. The Court relied on the principle that decisions involving factual matters or mixed questions of law and fact, where no distinct legal issue is evident, would be evaluated using the palpable and overriding standard to determine whether the decision was made on the merits of the case. The Court concluded that the finding of fact was correctly made according to the relevant laws and policies. Consequently, absent a palpable and overriding error, the Appeals Tribunal’s determination must be given deference.
The Court found that Guitard essentially sought to alter the recurrence date to expand his claim. It stated that statutory mechanisms exist to facilitate a reconsideration of the Appeals Tribunal Decision made on June 25, 2021, along with the related factual findings concerning Guitard’s recurrence. However, Guitard did not utilize these mechanisms, and as a result, that decision determined both the fact and the date of his injury recurrence.
The Court found that the Workplace Health, Safety and Compensation Commission and Workers’ Compensation Appeals Tribunal Act does not give it the power to reconsider prior decisions, that power is granted to the Commissions and the Appeals Tribunal in respect to their own decisions. With that, the Appeals Tribunal was bound by the finding that Guitard’s suffered a recurrence of a compensable injury on March 18, 2016, and entitlements to benefits from the same date.
The Court found that the Appeals Tribunal correctly applied the three-stage test embodied in the Workers’ Compensation Act to determine loss of earnings entitlement. It also determined that when the recurrence occurred approximately three years after Guitard left his employment, there was no income loss for the Commission to calculate because he had not earned any income since February 2013. The Court agreed with the Commission’s argument that revisiting the continuity of the original injury could not be the basis for allowing this appeal, as it could only be accomplished through a request for reconsideration of the June 2021 Appeals Tribunal decision, which Guitard did not pursue.
The key takeaway from this case is that unless there is a palpable and overriding error, decisions made by administrative bodies like the Workers’ Compensation Appeals Tribunal must be given deference. Emphasizing the importance of utilizing statutory mechanisms for reconsideration of decisions rather than seeking to alter decisions through appeals.
This article was written by Alisa Mirkovic and was originally published in Law 360 Canada on September 7, 2023. Alisa is licensed by the Law Society of Ontario and is an Employment Lawyer at Monkhouse Law.
Monkhouse Law is an employment law firm located in Toronto focusing on workers’ issues. Give us a call at 416-907-9249 or fill out this quick form. We offer a free 30-minute phone consultation.
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