Enterprise Cape Breton Corporation v. Anderson

Enterprise Cape Breton Corporation v. Anderson Court Court of Appeal Date 2014-06-10 Citation 2014 NSCA 59 Docket CA 413699 Judge/Registrar/Adjudicator MacDonald, J. Michael (Honourable Chief Justice) (CA); Oland, Linda L. (Honourable Justice); Farrar, David P.S. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - Enterprise Cape Breton Corporation v. Anderson - 2014 NSCA 59 - 2014-06-10 - Library Sheet Decision Content Nova Scotia Court of Appeal Citation: Enterprise Cape Breton Corporation v. Anderson, 2014 NSCA 59 Date: 20140610 Docket: CA 413699 Registry: Halifax Between: Enterprise Cape Breton Corporation (formerly Cape Breton Development Corporation) Appellant v. A. Roy Anderson, the Nova Scotia Workers’ Compensation Appeals Tribunal, Workers’ Compensation Board, and the Attorney General of Nova Scotia Respondents Judges: MacDonald, C.J.N.S.; Oland and Farrar, JJ.A. Appeal Heard: June 3, 2014, in Halifax, Nova Scotia Held: Appeal allowed per reasons for judgment of Farrar, J.A.; MacDonald, C.J.N.S. and Oland, J.A. concurring Counsel: Nancy F. Barteaux and Krista K. Smith, for the appellant Kenneth H. LeBlanc, for the respondent A. Roy Anderson Alexander MacIntosh, for the respondent Nova Scotia Workers’ Compensation Appeals Tribunal Paula Arab, for the respondent Workers’ Compensation Board Edward A. Gores, Q.C., for the respondent Attorney General of Nova Scotia (Not participating) Reasons for judgment: Background [1] The respondent, Roy Anderson, was diagnosed with pneumoconiosis, a compensable industrial disease, after undergoing a pulmonary function test (“PFT”) on February 16, 2012. Pneumoconiosis is a permanent alteration of lung structure due to the inhalation of dust. It is common in underground coal miners. Mr. Anderson was employed by the appellant Enterprise Cape Breton Corporation (“ECBC”) as an underground coal miner from 1976 to 2000. [2] In a decision dated December 3, 2012, a Workers’ Compensation Board Hearing Officer confirmed the decision of an Occupational Disease Adjudicator awarding Mr. Anderson, a 30% permanent impairment benefit (“PMI”) for pneumoconiosis effective February 16, 2012, the date of the PFT. [3] Mr. Anderson appealed the effective date of his award to the Workers’ Compensation Appeals Tribunal (“WCAT”) arguing that his PMI should be back-dated to a period of time before February 16, 2012. [4] WCAT allowed his appeal awarding him a 10% PMI effective October 1, 2004, increasing to 20% on October 1 , 2009, and confirming the 30% PMI effective February 16, 2012. [5] By an order dated December 13, 2013, this Court granted Enterprise Cape Breton Corporation (“ECBC”) leave to appeal WCAT’s decision (WCAT #2012-777-AD) on the following ground: Did WCAT erred by failing to properly apply WCB Policy 3.3.4R? [6] For the reasons that follow, I would allow the appeal and set aside the PMI of 10% awarded by WCAT effective October 1, 2004, and the increase to that PMI to 20% on October 1, 2009. I would affirm the award of a PMI of 30% effective February 16, 2012. Issue [7] I would summarize and restate the issue for which leave was granted as follows: Did the Tribunal erred by failing to properly apply WCB Policy 3.3.4R in awarding a PMI of 10% on October 1, 2004 and increasing it to 20% on October 1, 2009? Standard of Review [8] It is well-settled, and not disputed by any of the parties to this appeal, that where, as here, WCAT’s decision involves a question relating to the interpretation of the Workers’ Compensation Act, S.N.S. 1994-95, c. 10, as amended (the Act) and WCB policy, the standard of review is reasonableness. Analysis [9] Mr. LeBlanc, solicitor for the respondent, quite appropriately concedes that WCAT is bound to follow WCB policy and a failure to follow an applicable policy would be unreasonable and constitute a reversible error. He argues, however, that although WCAT does not mention Policy 3.3.4R in its decision, a review of the decision as a whole makes it apparent that the Appeal Commissioner followed the policy in reaching his conclusions. [10] Despite Mr. LeBlanc’s able arguments, and with respect, I am unable to agree. I will explain why. [11] Let me start by reviewing the statutory framework for determining the existence and degree of a permanent impairment for an industrial disease such as pneumoconiosis. I have deleted any wording that is not necessary for my analysis. [12] The Act provides: 2 In this Act, ... (v) “occupational disease” means a disease arising out of and in the course of employment ... and includes ...[pneumoconiosis]; [13] The existence and degree of the PMI is determined by the WCB pursuant to s. 34 which provides: (2) The existence and degree of a worker’s permanent impairment shall be (a) determined by the Board; [14] Since ECBC does not dispute that Mr. Anderson has an occupational disease, I turn to Policy 3.3.4R. It is common ground between the parties that Policy 3.3.4R is the appropriate policy for determining the degree of Mr. Anderson’s permanent impairment. It is descriptively titled – Determining Permanent Medical Impairment Ratings Using the AMA Guides, 4th Edition. The applicable provisions of Policy 3.3.4R are: 7. A worker’s permanent medical impairment rating will be determined by a Board Medical Adviser, taking into consideration the following factors: (a) a review of all pertinent information contained in the worker’s WCB claim file(s); (b) the results of a physical examination of the worker conducted by a Board Medical Adviser or where the Board considers it appropriate, by an external medical specialist appropriate to the type of impairment; and (c) the criteria set out in the AMA Guides – 4th Edition, as applicable. If an impairment description does not match the AMA Guides – 4th Edition, the Board Medical Adviser will make a judgement rating following discussion with other Board Medical Advisers if necessary. A judgement rating may be determined by the Medical Adviser at any time if the scheduled rating is inappropriate to the worker’s condition. ... 11. The AMA Guides – 4th Edition are used to assess impairment, not disability. The existence and degree of permanent medical impairment are determined by medical means and are based solely on a demonstrable loss of bodily function. [15] In assessing the permanent impairment the AMA Guides instruct as follows: 5.2 ... Forced Respiratory Maneuvers (Simple Spirometry) Physiologic testing of pulmonary function is the quantitative basis on which the evaluation of respiratory system impairment rests. A forced expiratory maneuver must be performed during the examination and evaluation of each patient for permanent pulmonary impairment. The testing and spirometry must be performed on standardized equipment calibrated according to, and using techniques described in, the 1987 ATS Statement on Standardization of Spirometry. [16] Finally, once the existence and degree of the PMI has been established the date of injury must be established pursuant to s. 12 of the Act which provides: 12 (2) Where a worker suffers from an occupational disease, the date of the worker’s injury, for the purpose of this Act, is the earliest of ... (b) the date on which the Board determines the worker has a permanent impairment caused by the occupational disease; [17] With this road map in mind, I return to the decision of WCAT and its consideration of the evidence before it in assessing the degree of Mr. Anderson’s permanent impairment on October 1, 2004 and October 1, 2009. [18] In its reasoning WCAT says: ... had there been periodic re-assessments, it seems likely that he would have been awarded an initial 10 percent PMI rating and a subsequent 20 percent PMI rating prior to the 30 percent award. ... Despite the lack of medical investigations, in hindsight it may be assumed that the Worker’s CWP progressed following 1999 when CWP was suspected. Under the circumstances, I find that the Worker likely had a sufficiently developed condition to warrant a 10 percent PMI rating five years after Dr. Michael’s initial recommendation; i.e., October 1, 2004. Furthermore, it is reasonable to assume that the disease progressed steadily during the following 5 year interval. I therefore find that the Worker was entitled to a 20 percent PMI rating for his CWP effective October 1, 2009. Finally, based upon PFT findings, he is entitled to a 30 percent PMI rating for his CWP effective February 16, 2012. [Emphasis added] [19] WCAT’s conclusion that Mr. Anderson was entitled to a 10% PMI on October 1, 2004, and a 20% PMI on October 1, 2009, cannot, on any reasonable reading of the decision, be as a result of the application of Policy 3.3.4R. The use of words like “it may be assumed”, “likely”, “it is reasonable to assume”, is, with respect, nothing more than conjecture and speculation as to what Mr. Anderson’s PMI may have been on those dates. [20] Policy 3.3.4R mandates that a PMI will be determined by: (a) a review of all pertinent information in the worker’s file; (b) the results of a physical examination; and (c) the criteria in the AMA Guides; not the Appeal Commissioner’s musings about what the evidence may have been at a certain point in time. [21] Between 2000 and 2011 there was no medical evidence on the worker’s file relating to pneumoconiosis; he did not undergo a physical exam and the PMIs for October 1, 2004 and October 1, 2009 were not determined by the criteria set out in the AMA Guides. [22] Further, the Appeal Commissioner does not even reference Policy 3.3.4R anywhere in his decision, nor was it referred to in submissions by Mr. Anderson’s representative at the hearing before WCAT. He does not rely on any medical means (s. 11 of Policy 3.3.4R) in making his determination. Simply put, there was no medical evidence, nor is any referenced, which could fulfill the requirements of the policy. [23] Based on the Act, the Policy and the evidence before him, it was not open for the Appeal Commissioner to find that Mr. Anderson had a PMI of 10% in 2004 and 20% in 2009. The inescapable conclusion is that the Policy was not applied in this particular circumstance. The failure to do so was unreasonable and the decision cannot stand. [24] In the end result, I would set aside the PMIs awarded for October 1, 2004 and October 1, 2009. I would not disturb the finding that Mr. Anderson is entitled to a 30% PMI effective February 16, 2012. [25] Before concluding I want to address one further issue. In the facta filed on behalf of the parties and in oral argument, a lot of time was spent addressing the issue of the appropriate effective date for the PMI. In particular, it was argued by both the WCB and ECBC that the date of the PFT will determine the effective date of the PMI. It is not necessary for me to determine that issue on this appeal. The Hearing Officer and the Appeal Commissioner both determined that the 30% PMI was effective February 16, 2012, which, in this case, was the date of the PFT. [26] This decision addresses one narrow issue; that is, whether the Appeal Commissioner erred in failing to apply Policy 3.3.4R when determining the degree of permanent impairment on October 1, 2004, and October 1, 2009. Whether the effective date of the PMI will always be the date of the PFT does not arise on the facts of this case. The argument that the PMI could be effective prior to the PFT is for another day. Conclusion [27] I would allow the appeal, and set aside WCAT’s decision (WCAT #2012-777-AD) to the extent that it awards a PMI of 10% on October 1, 2004, and increases it to 20% on October 1, 2009. I would affirm the Hearing Officer’s decision that Mr. Anderson is entitled to a 30% PMI effective February 16, 2012. Farrar, J.A. Concurred in: MacDonald, C.J.N.S. Oland, J.A.