Creighton v. Workplace Health, Safety and Compensation Commission (N.B.), 2009 NBCA 73

• Judge: Larlee, Robertson and Bell, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: May 20, 2009
• Jurisdiction: New Brunswick
• Citations: 2009 NBCA 73;(2009), 350 N.B.R.(2d) 352 (CA)

Creighton v. WHSCC (2009), 350 N.B.R.(2d) 352 (CA);

    350 R.N.-B.(2e) 352; 903 A.P.R. 352

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2009] N.B.R.(2d) TBEd. NO.010

Renvoi temp.: [2009] N.B.R.(2d) TBEd. NO.010

Nancy Creighton (appellant) v. Workplace Health, Safety and Compensation Commission (respondent)

(17-09-CA; 2009 NBCA 73)

Indexed As: Creighton v. Workplace Health, Safety and Compensation Commission (N.B.)

Répertorié: Creighton v. Workplace Health, Safety and Compensation Commission (N.B.)

New Brunswick Court of Appeal

Larlee, Robertson and Bell, JJ.A.

November 5, 2009.

Summary:

Résumé:

Creighton, a worker entitled to workers' compensation because of a multiple chemical sensitivity, appealed against a decision of the Appeals Tribunals established under the Workplace Health, Safety and Compensation Commission Act (N.B.), which denied her appeal from a refusal by the Commission to compensate her for treatments, products and expenses which she believed were "necessary".

The New Brunswick Court of Appeal dismissed the appeal.

Workers' Compensation - Topic 5512

Compensation - General - Medical aid or treatment or other health related expenses - Creighton was on long term disability for multiple chemical sensitivity - Creighton's doctor told the Workplace Health, Safety and Compensation Commission (N.B.) that she suffered from fibromyalgia, chemical sensitivities, neurocognitive dysfunction, chronic fatigue syndrom, asthma, irritable bowel syndrome and environmental hypersensitivities - The doctor recommended injections of dietary supplements, massage therapy, acupuncture, chiropractic therapy, physical therapy, "comprehensive food, inhalant, allergy testing with self injectable serum" and a list of "natural substances" - The Commission denied these treatments - The Appeals Tribunal affirmed the decision, concluding that it was given no objective proof that the treatments and modalities would be an effective treatment or cure for her condition - At issue was whether the Appeals Tribunal made a reasonable decision that the above recommended treatments were not "medical aid as is necessary as a result of the accident" pursuant to s. 41(1) of the Workers' Compensation Act - The New Brunswick Court of Appeal held that the Appeals Tribunal's decision was reasonable - The onus was on the claimant to meet a basic threshold of whether each treatment was necessary - As a preliminary matter the claimant had to establish a causal connection between the necessity of the treatment and the work related injury - The claimant also had to establish a relation between the treatment or remedy and the condition - In this case there was nothing to explain why each treatment was necessary - The letters from the physicians did not clarify which treatments maintained or improved Creighton's condition and whether the various aspects of her condition resulted from the work related injury - See paragraphs 1 to 41.

Accidents du travail - Cote 5512

Indemnisation - Généralités - Assistance médicale ou traitement ou autres frais de santé - [Voir Workers' Compensation - Topic 5512 ].

Cases Noticed:

20085149, Re, 2008 CanLII 63963 (N.B.W.H.S.C.C.), consd. [para. 9].

Saint John (City) v. Workplace Health, Safety and Compensation Commission (N.B.) et al. (2008), 338 N.B.R.(2d) 213; 866 A.P.R. 213; 2008 NBCA 83, consd. [para. 13].

Fundy Linen Service Inc. v. Workplace Health, Safety and Compensation Commission (N.B.) (2009), 341 N.B.R.(2d) 286; 876 A.P.R. 286; 2009 NBCA 13, consd. [para. 13].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, consd. [para. 15].

MacKenzie v. Davis (2008), 338 N.B.R.(2d) 232; 866 A.P.R. 232; 2008 NBCA 85, refd to. [para. 15].

MacKay v. Russell et al. (2007), 318 N.B.R.(2d) 345; 821 A.P.R. 345; 2007 NBCA 55, refd to. [para. 15].

LeBlanc v. Bulmer et al. (2007), 313 N.B.R.(2d) 384; 809 A.P.R. 384; 2007 NBCA 35, refd to. [para. 15].

20053928, Re, 2005 CanLII 63371 (N.B.W.H.S.C.C.), consd. [para. 19].

20074534, Re, 2007 CanLII 70234 (N.B.W.H.S.C.C.), consd. [para. 19].

20074644, Re, 2007 CanLII 70323 (N.B.W.H.S.C.C.), consd. [para. 20].

20095251, Re, 2009 CanLII 12745 (N.B.W.H.S.C.C.), consd. [para. 21].

20095235, Re, 2009 CanLII 12728 (N.B.W.H.S.C.C.), consd. [para. 22].

Thompson v. Workers' Compensation Board (N.S.) et al. (1996), 147 N.S.R.(2d) 378; 426 A.P.R. 378 (S.C.), refd to. [para. 23].

20095237, Re, 2009 CanLII 12729 (N.B.W.H.S.C.C.), refd to. [para. 43].

Statutes Noticed:

Workers' Compensation Act, R.S.N.B. 1973, c. W-13, sect. 41(1) [para. 12].

Authors and Works Noticed:

New Brunswick, Workplace Health, Safety and Compensation Commission, Medical Aid - Principles Policy, Policy 25-001 [para. 16].

Counsel:

Avocats:

Lindsay E. Brown, for the appellant;

Charles A. LeBlond, Q.C., for the respondent.

This appeal was heard on May 20, 2009, by Larlee, Robertson and Bell, JJ.A., of the New Brunswick Court of Appeal. The following decision of the Court of Appeal was delivered in both official languages on November 5, 2009, by Larlee, J.A.