Fournier v. Workplace Health, Safety and Compensation Commission (N.B.), 2015 NBCA 9

• Judge: Larlee, Deschênes and Richard, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: February 12, 2015
• Jurisdiction: New Brunswick
• Citations: 2015 NBCA 9;(2015), 433 N.B.R.(2d) 362 (CA)

Fournier v. WHSCC (2015), 433 N.B.R.(2d) 362 (CA);

    433 R.N.-B.(2e) 362; 1130 A.P.R. 362

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: [2015] N.B.R.(2d) TBEd. FE.017

Renvoi temp.: [2015] N.B.R.(2d) TBEd. FE.017

Jean-Guy Fournier (appellant) v. Workplace Health, Safety and Compensation Commission of New Brunswick (respondent)

(108-14-CA; 2015 NBCA 9)

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

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

New Brunswick Court of Appeal

Larlee, Deschênes and Richard, JJ.A.

February 12, 2015.

Summary:

Résumé:

Fournier received workers' compensation benefits since a 1984 workplace accident. In 1989, benefits were reduced by what Fournier could have earned at the minimum wage rate, as he was not totally disabled. In 2010, the Workplace Health, Safety and Compensation Commission was asked to reconsider. The Commission confirmed the decision on the basis that no new information justified a change. Fournier appealed to the Commission's Appeals Tribunal. In 2012, the Appeals Tribunal concluded that, on the whole of the evidence, Fournier was totally disabled. The Appeals Tribunal ordered benefits recalculated retroactive to the Commission's 2010 decision. Fournier, although believing that increased benefits should have been retroactive to 1989 (when he was initially deemed capable of holding a minimum wage job), failed to appeal the Appeals Tribunal's decision within the prescribed time limits. Instead, in 2012 Fournier requested that the Appeals Tribunal reconsider its decision. In 2014, the Appeals Tribunal confirmed its 2012 decision after finding that there was no new evidence substantially affecting the matter. Fournier appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Workers' Compensation - Topic 5607

Compensation - Compensable injuries and disabilities - Retroactivity of benefits - Fournier received workers' compensation benefits since a 1984 workplace accident - In 1989, benefits were reduced by what Fournier could have earned at the minimum wage rate, as he was not totally disabled - In 2010, the Workplace Health, Safety and Compensation Commission was asked to reconsider - The Commission confirmed the decision on the basis that no new information justified a change - Fournier appealed to the Commission's Appeals Tribunal - In 2012, the Appeals Tribunal concluded that, on the whole of the evidence, Fournier was totally disabled - The Appeals Tribunal ordered benefits recalculated retroactive to the Commission's 2010 decision - Fournier, although believing that increased benefits should have been retroactive to 1989 (when he was initially deemed capable of holding a minimum wage job), failed to appeal the Appeals Tribunal's decision within the prescribed time limits - Instead, in 2012 Fournier requested that the Appeals Tribunal reconsider its decision - In 2014, the Appeals Tribunal confirmed its 2012 decision after finding that there was no new evidence substantially affecting the matter - The New Brunswick Court of Appeal dismissed Fournier's appeal - First, there was no "new evidence" adduced - Second, there was nothing incongruous in a finding that Fournier was capable for many years of earning a minimum wage but that, at some later point in time, his health deteriorated such that he became totally disabled - The Appeal Tribunal finding that Fournier was totally disabled as of 2012 did not mean that he was totally disabled in 1989 or some other date after 1989 but prior to 2012 - A further argument that the Appeals Tribunal erred in failing to follow a particular Court of Appeal decision should have been raised by way of an appeal from the 2012 decision, not an appeal from the subsequent reconsideration decision based on new evidence - In any event, the court would have distinguished the decision sought to be followed.

Workers' Compensation - Topic 7005

Practice - Appeals - Review of board's decision by an appeal board or by the courts - Scope of review - [See Workers' Compensation - Topic 5607 ].

Accidents du travail - Cote 5607

Indemnisation - Blessures et incapacités susceptibles d'indemnisation - Rétroactivité des prestations - [Voir Workers' Compensation - Topic 5607 ].

Accidents du travail - Cote 7005

Procédure - Appels - Révision judiciaire des décisions de la Commission par un tribunal d'appel ou les tribunaux - Portée de la révision - [Voir Workers' Compensation - Topic 7005 ].

Cases Noticed:

Page v. Workplace Health, Safety and Compensation Commission (N.B.) (2006), 304 N.B.R.(2d) 128; 788 A.P.R. 128; 2006 NBCA 95, refd to. [para. 6].

Kelley v. Workplace Health, Safety and Compensation Commission (N.B.) (2009), 345 N.B.R.(2d) 35; 889 A.P.R. 35; 2009 NBCA 30, refd to. [para. 7].

Counsel:

Avocats:

Alcide Léger, for the appellant;

Renée Fontaine, for the respondent.

This appeal was heard on January 15, 2015, before Larlee, Deschênes and Richard, JJ.A., of the New Brunswick Court of Appeal.

On February 12, 2015, Richard, J.A., delivered the following judgment in both official languages for the Court.