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Workplace Health, Safety & Compensation Law - WORKERS’ COMPENSATION - Benefits - Entitlement to benefits - Appeals and judicial review

Thursday, March 02, 2017 @ 7:00 PM  

Separate appeals by Messom and the Workers’ Compensation Board of Nova Scotia from a ruling by the Workers’ Compensation Appeals Tribunal. In 1988, Messom was injured in a workplace accident. He was awarded a ten per cent permanent medical impairment rating and returned to work. In February 2010, Messom’s symptoms worsened, causing him to cease work. In July 2011, Messom received a 15 per cent permanent impairment rating and was provided with vocational rehabilitation services. He received temporary earnings-replacement benefits (TERBs) until September 2011, when the Board determined his entitlement had ended, as his condition could no longer be regarded as temporary and he had the capacity to earn income. The Board also determined Messom was not entitled to assessment for extended earnings-replacement benefits (EERBs) based on the date of his injury. In 2015, the Appeals Tribunal ruled Messom was not entitled to TERBs beyond September 2011, but was entitled to assessment for EERBs. Messom appealed the refusal of the continuation of his TERBs. The Board appealed the Tribunal’s determination Messom was entitled to assessment for EERBs.

HELD: Messom’s appeal dismissed and Board’s appeal allowed. The proper issue before the Tribunal was not Messom’s entitlement to TERBs, but rather whether he was entitled to be assessed for EERBs on the basis of reaching maximum medical recovery. Messom accepted he had reached maximum medical recovery by February 2010 and had completed vocational rehabilitation. The Tribunal’s conclusion that Messom was entitled to TERBs until September 2011 was therefore correct, but not for the reason given of Messom having capacity to earn income. The Tribunal’s conclusion Messom was entitled to assessment for EERBs was inconsistent with a proper interpretation of s. 227 of the Workers’ Compensation Act and the Court of Appeal’s ruling in Ellsworth. EERBs were a wage loss entitlement not statutorily available to workers injured prior to March 1990 who received compensation for a permanent disability in February 1996. Messom was fit for both criteria. Worsening of an earlier compensable injury did not equate to a new injury entitling Messom to assessment for EERBs. The Board’s conclusion to the contrary was unreasonable.