Maritime Paper Products Limited Partnership v. LeBlanc et al., (2016) 370 N.S.R.(2d) 245 (CA)

• Judge: Farrar, Bourgeois and Van den Eynden, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: November 16, 2015
• Jurisdiction: Nova Scotia
• Citations: (2016), 370 N.S.R.(2d) 245 (CA);2016 NSCA 13

Maritime Paper v. LeBlanc (2016), 370 N.S.R.(2d) 245 (CA);

    1165 A.P.R. 245

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. FE.056

Maritime Paper Products Limited Partnership (appellant) v. John LeBlanc (Worker), Workers' Compensation Appeals Tribunal (Nova Scotia), Workers' Compensation Board (Nova Scotia), Nova Scotia Attorney General (respondents)

(CA 432343; 2016 NSCA 13)

Indexed As: Maritime Paper Products Limited Partnership v. LeBlanc et al.

Nova Scotia Court of Appeal

Farrar, Bourgeois and Van den Eynden, JJ.A.

February 25, 2016.

Summary:

LeBlanc was employed by Maritime Paper Products Limited Partnership (Maritime Paper) when he injured his shoulder. He underwent a Permanent Medical Impairment (PMI) assessment. The Workers' Compensation Board awarded him a 14% PMI. Maritime Paper appealed on the basis that the Board Medical Advisor had determined the PMI by rating LeBlanc's lack of range of motion as well as the presence of crepitus. Maritime Paper asserted that this constituted rating the same impairment twice which offended the American Medical Association's Guides to the Evaluation of Permanent Impairment. The Board obtained a follow-up opinion from the Medical Advisor to address the issue. The Medical Advisor concluded that there were two impairing conditions and that there was no duplication in the determination of the PMI. The Hearing Officer accepted the Medical Advisor's opinion and upheld the 14% PMI. Maritime Paper appealed. The Workers' Compensation Appeals Tribunal dismissed the appeal. Maritime Paper appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Workers' Compensation - Topic 5605

Compensation - Compensable injuries and disabilities - Permanent total or partial disability - LeBlanc was employed by Maritime Paper Products Limited Partnership (Maritime Paper) when he injured his shoulder - He underwent a Permanent Medical Impairment (PMI) assessment - The Workers' Compensation Board awarded him a 14% PMI - Maritime Paper appealed, asserting that the Board Medical Advisor had determined the PMI by rating LeBlanc's lack of range of motion as well as the presence of crepitus - Maritime Paper asserted that this constituted rating the same impairment twice which offended the American Medical Association's Guides to the Evaluation of Permanent Impairment (the AMA Guides) - The Board adopted the Medical Advisor's follow-up opinion that there were two impairing conditions and that there was no duplication in the determination of the PMI - The Board dismissed the appeal - The Workers' Compensation Appeals Tribunal affirmed the decision - Maritime Paper appealed, asserting that the Appeals Tribunal and the medical Advisor erred by expanding the Board's policy when they concluded that a PMI for crepitus could be awarded when there was not a demonstrable loss of bodily function - The Nova Scotia Court of Appeal dismissed the appeal - The court was satisfied, reading the decision as a whole and in context, that the Appeals Tribunal was satisfied that the crepitus contributed to an impairment of the shoulder and was properly considered in the final impairment determination as directed by the AMA Guides - See paragraphs 34 to 44.

Workers' Compensation - Topic 5606

Compensation - Compensable injuries and disabilities - Aggravation of pre-existing condition - Sufficiency of - LeBlanc was employed by Maritime Paper Products Limited Partnership (Maritime Paper) when he injured his shoulder - He underwent a Permanent Medical Impairment (PMI) assessment - The Workers' Compensation Board awarded him a 14% PMI - Maritime Paper appealed, asserting that the Board Medical Advisor had determined the PMI by rating LeBlanc's lack of range of motion as well as the presence of crepitus - Maritime Paper asserted that this constituted rating the same impairment twice which offended the American Medical Association's Guides to the Evaluation of Permanent Impairment (the AMA Guides) - The Board adopted the Medical Advisor's follow-up opinion that there were two impairing conditions and that there was no duplication in the determination of the PMI - The Board dismissed the appeal - The Workers' Compensation Appeals Tribunal affirmed the decision - Maritime Paper appealed, asserting that the Appeals Tribunal failed to follow the Workers' Compensation Act and Policy 3.9.11R1 when dealing with non-compensable factors - The Nova Scotia Court of Appeal dismissed the appeal - The Appeals Tribunal addressed all of the questions referred to it - It found that the injuries for which LeBlanc was assessed arose as a result of his workplace injury - By necessary implication, it rejected the argument that the PMI should be reduced as a result of pre-existing conditions or non-compensable factors - The court noted that s. 252(A) of the Act required the Appeals Tribunal to "... state the reasons for the decision as briefly as possible without undue elaboration" - The Appeals Tribunal reviewed the evidence, referenced the policies and the AMA Guides, made determinations based on the expert medical evidence and other evidence before it and concluded that LeBlanc was entitled to a 14% PMI - Her reasons, without undue elaborations, clearly and thoroughly addressed all of the issues - See paragraphs 59 to 73.

Workers' Compensation - Topic 6963

Practice - Decision of board - Requirement that reasons be given - [See Workers' Compensation - Topic 5606 ].

Workers' Compensation - Topic 7008

Practice - Appeals - Review of board's decision by an appeal board or by the courts - Evidence and proof - LeBlanc was employed by Maritime Paper Products Limited Partnership (Maritime Paper) when he injured his shoulder - He underwent a Permanent Medical Impairment (PMI) assessment - The Workers' Compensation Board awarded him a 14% PMI - Maritime Paper appealed, asserting that the Board Medical Advisor had determined the PMI by rating LeBlanc's lack of range of motion as well as the presence of crepitus - Maritime Paper asserted that this constituted rating the same impairment twice which offended the American Medical Association's Guides to the Evaluation of Permanent Impairment - The Board adopted the Medical Advisor's follow-up opinion that there were two impairing conditions and that there was no duplication in the determination of the PMI - The Board dismissed the appeal - The Workers' Compensation Appeals Tribunal affirmed the decision - Maritime Paper appealed, asserting that the Appeals Tribunal reversed the burden of proof by requiring Maritime Paper to prove that it was "more likely than not" that the PMI rate was inaccurate or incorrect - The Nova Scotia Court of Appeal dismissed the appeal - Maritime Paper's position failed to recognize that the proceeding before the Appeals Tribunal was an appeal - The issue before the Appeals Tribunal was not whether LeBlanc was entitled to a PMI of 14%, but rather, whether the Board and the Hearing Officer erred in making that determination - The burden was on Maritime Paper to show an error had been made - See paragraphs 13 to 29.

Workers' Compensation - Topic 7008

Practice - Appeals - Review of board's decision by an appeal board or by the courts - Evidence and proof - LeBlanc was employed by Maritime Paper Products Limited Partnership (Maritime Paper) when he injured his shoulder - He underwent a Permanent Medical Impairment (PMI) assessment - The Workers' Compensation Board awarded him a 14% PMI - Maritime Paper appealed, asserting that the Board Medical Advisor had determined the PMI by rating LeBlanc's lack of range of motion as well as the presence of crepitus - Maritime Paper asserted that this constituted rating the same impairment twice which offended the American Medical Association's Guides to the Evaluation of Permanent Impairment (the AMA Guides) - The Board adopted the Medical Advisor's follow-up opinion that there were two impairing conditions and that there was no duplication in the determination of the PMI - The Board dismissed the appeal - The Workers' Compensation Appeals Tribunal affirmed the decision - Maritime Paper appealed, asserting that the Medical Advisor failed to review all of the "pertinent information" contained in LeBlanc's claim as required by Policy 3.3.4R - The Nova Scotia Court of Appeal dismissed the appeal - Although the Medical Advisor did not use the terminology that he had reviewed all the "pertinent" information in the file, he clearly stated that he examined the file and specifically referred to the AMA Guides which required him to do so - There was ample evidence for the Appeals Tribunal to conclude that the Medical Advisor had reviewed LeBlanc's medical files - See paragraphs 45 to 52.

Cases Noticed:

Enterprise Cape Breton Corp. v. Southwell et al. (2012), 313 N.S.R.(2d) 380; 990 A.P.R. 380; 2012 NSCA 23, refd to. [para. 12].

Workers' Compensation Board (N.S.) v. Workers' Compensation Appeals Tribunal (N.S.) and Johnstone (1999), 181 N.S.R.(2d) 247; 560 A.P.R. 247; 1999 NSCA 164, refd to. [para. 26].

Counsel:

Bernadine MacAulay, for the appellant;

Kenneth LeBlanc, for the respondent, John LeBlanc;

Alexander MacIntosh, for the respondent, Workers' Compensation Appeals Tribunal of Nova Scotia;

Paula Arab, Q.C., for the respondent, Workers' Compensation Board of Nova Scotia.

This appeal was heard at Halifax, Nova Scotia, on November 16, 2015, by Farrar, Bourgeois and Van den Eynden, JJ.A., of the Nova Scotia Court of Appeal. Farrar, J.A., delivered the following judgment for the court on February 25, 2016.