Geldart v. Workers' Compensation Board (N.S.), (1996) 155 N.S.R.(2d) 51 (CA)

• Judge: Freeman, Roscoe and Bateman, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: October 07, 1996
• Jurisdiction: Nova Scotia
• Citations: (1996), 155 N.S.R.(2d) 51 (CA)

Geldart v. WCB (1996), 155 N.S.R.(2d) 51 (CA);

    457 A.P.R. 51

MLB headnote and full text

Willa Geldart (appellant) v. The Workers' Compensation Board of Nova Scotia (respondent)

(C.A. No. 126571)

Indexed As: Geldart v. Workers' Compensation Board (N.S.)

Nova Scotia Court of Appeal

Freeman, Roscoe and Bateman, JJ.A.

October 31, 1996.

Summary:

Geldart, a cleaner, injured her back carry­ing large pails of water. She applied for worker's compensation benefits. She received temporary total disability benefits until June 1992. She successfully applied for an exten­sion of benefits. In September 1993, a medi­cal assessment confirmed that she suffered from chronic pain syndrome. In March 1995, she was denied a permanent partial disability award. An appeal to a Review Officer, Workers' Compensation Board, was dis­missed. A further appeal concluded that she was not entitled to permanent medical im­pairment benefits. She appealed. The Work­ers' Compensation Board applied to quash the appeal, because, inter alia, Geldart failed to apply for leave and the appeal was moot. The Board also argued that Charter issues raised by Geldart were not properly before the Board.

The Nova Scotia Court of Appeal granted leave to appeal, ordered trial of the issues raised in the first ground of appeal and struck out the Charter issues raised by Gel­dart.

Administrative Law - Topic 6126

Judicial review - Statutory appeal - Leave to appeal - When available - The appli­cant sought to appeal a negative decision of the Workers' Compensation Board - The Board submitted that the applicant was required to apply for leave to appeal - The Nova Scotia Court of Appeal stated that "[t]he test that should be applied on an application for leave is well established to be whether the applicant has shown that a substantial question of law or jurisdiction exists that established that there is a rea­sonably arguable case for success on the appeal" - See paragraph 9.

Workers' Compensation - Topic 5605

Compensation - Compensable injuries and disabilities - Permanent total or partial disability - Geldart, a cleaner, injured her back carrying large pails of water - A medical assessment confirmed that she suffered from chronic pain syndrome - A hearing officer applied the Workers' Com­pensation Board Guidelines and denied her permanent partial disability benefits - She appealed under s. 183 on the ground that the Guidelines were ultra vires the Work­ers' Compensation Act because they required objective findings of abnormal­ities which precluded a person with chro­nic pain syndrome from receiving a per­manent partial disability award - The Nova Scotia Court of Appeal found that there was an arguable issue that should be determined at trial - See paragraphs 10 to 16.

Workers' Compensation - Topic 7002

Practice - Appeals - Review of board's decision by an appeal board or by the courts - Jurisdiction - Geldart, a cleaner, injured her back carrying large pails of water - A medical assessment confirmed that she suffered from chronic pain syn­drome - A hearing officer applied the Workers' Compensation Board Guidelines and denied her permanent partial disability benefits - Geldart appealed on the grounds that (1) under s. 183, the policy guidelines were ultra vires the Workers' Compensa­tion Act, and (2) the Board discriminated against Geldart contrary to the Charter, s. 15 - The Nova Scotia Court of Appeal found an arguable issue and granted leave to appeal on the first ground - The court struck the Charter appeal, because Geldart had not exhausted all avenues of appeal under the Act (i.e., an appeal to the Appeals Tribunal lay under s. 243 of the Act which was broad enough to include the Charter issues).

Workers' Compensation - Topic 7122

Practice - Judicial review - Grounds - [See Workers' Compensation - Topic 7002 ].

Cases Noticed:

Morishita v. Richmond (Township) (1990), 67 D.L.R.(4th) 609 (B.C.C.A.), refd to. [para. 7].

Société des Acadiens du Nouveau-Bruns­wick Inc. and Associ­ation des conseillers scolaires francophones du Nouveau-Brunswick v. Minority Language School Board No. 50 and Association of Parents for Fairness in Education, Grand Falls District 50 Branch (1987), 82 N.B.R.(2d) 360; 208 A.P.R. 360 40 D.L.R. 704 (C.A.), refd to. [para. 7].

Association of Parents for Fairness in Education v. Minority Language School Board et al. - see Société des Acadiens du Nouveau-Brunswick Inc. and Associ­ation des conseillers scolaires francophones du Nouveau-Brunswick v. Minority Language School Board No. 50 and Association of Parents for Fairness in Education, Grand Falls District 50 Branch.

Wilson Fuel Co. v. Board of Commis­sioners of Public Utilities (N.S.) (1990), 95 N.S.R.(2d) 298; 251 A.P.R. 298 (C.A.), refd to. [para. 9].

Doward, Re, Decision No. 96-010D (N.S. Workers Comp. App. Trib.), refd to. [para. 14].

Statutes Noticed:

Functional Restoration (Multi-Faceted Pain Services) Program Regula­tions - see Workers' Compensation Act Regula­tions (N.S.).

Workers' Compensation Act, S.N.S. 1994-95, c. 10, sect. 183(7) [para. 5]; sect. 183(8) [para. 4]; sect. 183(9) [para. 5]; sect. 243(7)(d), sect. 243(7)(e) [para. 18]; sect. 256(3) [para. 8].

Workers' Compensation Act Regula­tions (N.S.), Functional Restoration (Multi-Faceted Pain Services) Program Regula­tions, sect. 6 [para. 16].

Authors and Works Noticed:

Nova Scotia, Workers' Compensation Board, Guideline for Assessment of Permanent Medical Impairment, gen­erally [para. 11].

Counsel:

Thomas W. Jarmyn, for the appellant;

David P.S. Farrar, for the respondent.

This appeal was heard on October 7, 1996, before Freeman, Roscoe and Bateman, JJ.A., of the Nova Scotia Court of Appeal. On October 31, 1996, Roscoe, J.A., delivered the following judgment for the court.