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WORKERS’ COMPENSATION - Benefits - Entitlement to benefits - Claims - Claims procedure - Compensability of injuries - Permanent total disability - Constitutional issues

Thursday, April 13, 2017 @ 8:14 AM  


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Appeal by a worker from the denial of his claim for an award of permanent physical impairment (PPI) resulting from work-related injuries. The worker was 58 years of age. He worked as a truck driver for 25 years before suffering work-related injuries in January 2004. He attempted to return to work on subsequent occasions, but was unsuccessful. He applied for loss of earning benefits under the Workers’ Compensation Act, but the Commission denied his claims. The Appeals Tribunal reversed the decision. It found that the worker was totally disabled and it ordered the Commission to process the claim for workers’ compensation and to pay his benefits retroactively to the date of the accident. In July 2013 and 2014, the worker applied for a PPI award. The Commission denied the application finding that he was not entitled to a permanent physical impairment assessment, which was a condition precedent to any such award, as there was no evidence of irreversible loss. The worker’s benefits under the Act were reduced by 10 per cent of his CPP disability payments. The worker requested that the Commission offset the legal fees he incurred in processing his application for CPP disability benefits and prosecuting his appeal from the initial denial. The Commission denied the request. The worker appealed to the Tribunal on the grounds that features of the workers’ compensation regime dealing with chronic pain were discriminatory. He also argued that the Commission erred in law in deducting the gross amount of CPP disability payments from his workers’ compensation benefits, as he incurred legal fees to obtain those payments. Shortly before the hearing of the appeal, the Tribunal referred the worker for a PPI assessment on the basis that it was a condition precedent to the sought-after award and therefore, a determination of the constitutional challenge was pre-mature. The worker appealed, arguing that the constitutional issue was ripe for determination and that the Tribunal erred in postponing its determination to a date after the PPI assessment.

HELD: Appeal dismissed. The decision to adjourn the determination of the worker’s constitutional challenge to a date after the PPI assessment fell within the scope of the Appeals Tribunal’s discretionary authority over procedural matters. The worker failed to show the decision was unreasonable or tainted by reversible error of law, fact or mixed fact and law. The fees the worker incurred to successfully prosecute his claim for CPP benefits did not form any part of payment to the worker. As a result, the Commission rightly concluded that the Act did not allow for the offset of the legal fees at issue.

Barton v. Worksafe NB, [2017] N.B.J. No. 40, New Brunswick Court of Appeal, J.E. Drapeau C.J.N.B. and J.C.M. Richard and B.L. Baird JJ.A., March 9, 2017. TLD-Apr102017015