Focus On

WORKERS’ COMPENSATION - Claims - Claims procedure - Notice of injury or accident - Time for

Wednesday, November 22, 2017 @ 8:26 AM  

Lexis Advance® Quicklaw®
Stated case from the Workers’ Compensation Appeals Tribunal (WCAT) to determine whether the five-year audiogram rule in Board Policy 1.2.5AR1 (Policy), which addressed entitlement to benefits for occupational hearing loss, was inconsistent with the Workers’ Compensation Act (Act). The appellant retired in 2007 after being employed as a shipwright for 50-55 years. In 2015, he had his hearing tested and was diagnosed with sensorineural hearing loss bilaterally for which binaural amplification was recommended. The appellant filed a claim for occupational noise-induced hearing loss with the Board in 2016. A Hearing Loss Adjudicator (Adjudicator) denied the appellant’s claim because he did not meet the criteria of the Policy which required a worker to have an audiogram within five years of leaving the workplace where it was alleged exposure to excessive noise occurred in order to be considered for entitlement to compensation. A Hearing Officer upheld the Adjudicator’s decision, confirming the finding that the claim was barred by the operation of the five-year audiogram rule in the Policy. Upon appeal of the Hearing Officer’s decision to the WCAT, the Appeal Commissioner found that in all other respects, the appellant was entitled to be adjudicated for occupational hearing loss, but that the five-year audiogram rule precluded such an adjudication.

HELD: The five-year audiogram rule was inconsistent with the Act. The requirement, by Policy, to have an audiogram within five years of the worker leaving employment did not accord with the scheme of the Act. It imposed a limitation on the entitlement to compensation for noise-induced hearing loss which was contrary to the express provisions of the Act. The Policy not only imposed an additional limitation period not contemplated by the Act, it removed any discretion from the Board to extend the time for filing a claim. It changed the limitation period in the Act from one which was based on when a worker learned of the occupational disease to one which was rigid and non-discretionary. Its effect was extraneous to its statutory authority.

Surette v. Nova Scotia (Workers' Compensation Board), [2017] N.S.J. No. 422, Nova Scotia Court of Appeal, J.E. Fichaud, D.P.S. Farrar and C.A. Bourgeois JJ.A., November 3, 2017. Digest No. TLD-November202017006