Victoria General Hospital v. Nova Scotia (Workers' Compensation Board)

Victoria General Hospital v. Nova Scotia (Workers' Compensation Board) Court Court of Appeal Date 1995-10-12 Citation 1995 NSCA 181 Docket CA 119401 Judge/Registrar/Adjudicator Clarke, Lorne O. (Honourable Chief Justice); Hart, Gordon L.S. (Honourable Justice); Jones, Malachi C. (Honourable Justice) (CA) Document Type Decision Decision Content C.A. No. 119401 NOVA SCOTIA COURT OF APPEAL Cite as: Victoria General Hospital v. Nova Scotia (Workers’ Compensation Appeal Board),1995 NSCA 181 Clarke, C.J.N.S.; Hart and Jones, JJ.A. BETWEEN: VICTORIA GENERAL HOSPITAL ) Harvey L. Morrison ) Karen P. Oldfield ) for the Appellant Appellant ) ) - and - ) Ian C. Pickard ) J. R. Gallant ) for the Respondent, J. Campbell WORKERS' COMPENSATION APPEAL ) BOARD (NOVA SCOTIA) and ) No appearance for the Respondent, JUDY CAMPBELL ) Workers' Compensation Appeal Board ) Respondents ) David P. S. Farrar ) Graham J. Steele ) for Workers' Compensation Board ) ) ) Appeal Heard: ) October 12, 1995 ) ) ) Judgment Delivered: ) October 12, 1995 ) ) ) ) ) THE COURT: Appeal dismissed from decision of Workers' Compensation Appeal Board ordering rehabilitation assistance, per oral reasons for judgment of Clarke, C.J.N.S., Hart and Jones, JJ.A. concurring. C.A. No. 119401 NOVA SCOTIA COURT OF APPEAL BETWEEN: VICTORIA GENERAL HOSPITAL ) ) Appellant ) - and - ) REASONS FOR ) JUDGMENT BY: WORKERS' COMPENSATION APPEAL ) BOARD (NOVA SCOTIA) and ) CLARKE, C.J.N.S. JUDY CAMPBELL ) (Orally) Respondents ) ) ) ) ) ) ) The reasons for judgment of the Court were delivered orally by: CLARKE, C.J.N.S.: This appeal relates to a decision of the Workers' Compensation Appeal Board dated July 10, 1995, whereby it ordered the Board to provide rehabilitation assistance to the respondent, Judy Campbell, to return to the work force. The operative provisions of the order are set forth in the final summary paragraph of the eighteen pages decision of the Appeal Board. It reads: In summary, again it is the finding of the Chair that the Appellant is clearly entitled to rehabilitation assistance to return to the work force. The Chair notes that the Appellant had functioned for five years as a highly skilled intensive care nurse. The Appellant was entitled to rehabilitation assistance to upgrade her education to be able to assume more sedentary responsibilities as a registered nurse commensurate with the skills and training she had acquired and the salary that these skills entitled her to at the time of injury. The Appellant's activities and initiative in this regard to return to University are reasonable given her tenure in the nursing profession and her responsibilities at the time that she was required to stop work as a result of her injuries. The Appellant is therefore to receive the assistance of the Workers Compensation Board to complete her Bachelor of Nursing degree which she has commenced already on her own initiative. The Appellant is to received [sic] temporary total disability benefits effective the date that she commenced this training program up to and including the date upon which she successfully completes her Bachelor of Nursing degree. She is then to be given a reasonable period consistent with Board policy in which to find employment. Judy Campbell, a nurse in the Intensive Care Unit at the Victoria General Hospital, twice suffered back injuries while lifting patients. Her employment record reveals that she was a dedicated and diligent nurse and that her injuries were serious, disabling and continuing. The reports of several medical experts, and others, reveal that a return to her former work would "pose an unacceptable high risk of re-injury" (Mr. Stanley), and that she should "further her nursing qualifications and become involved in training for administrative work" (Dr. McCallum). - 2 - Ms. Campbell decided to pursue studies in nursing at Dalhousie University. She requested rehabilitation assistance. On May 25, 1995, the Board, while extending temporary total disability benefits to June 15, 1993, denied vocational rehabilitation benefits. On appeal to the Workers' Compensation Appeal Board, it was held that the Board erred by applying the wrong tests. The result is the order which comes on appeal to this Court today. The rights and procedures contained in ss. 173 and 180 of the Workers' Compensation Act, R.S.N.S. 1989, c. 508, are now contained in Regulations 9 and 16, made May 23, 1995. However, there is no change in substance. Regulation 9(3)(c) now provides, as did s. 173(c), for "a continuance of compensation beyond the period allowed by the Board ...". The Act makes provision for a variety of methods of compensation benefits including temporary, total, partial, lump sum, pensions and by s. 83 rehabilitation services that are designed to get injured workers back to work. Liberally interpreted as the Act must be, rehabilitation services includes vocational assistance. We see no reason to disturb the finding of the Appeal Board that the appeal of Judy Campbell falls within Regulation 9(3)(c). That determination gives the Appeal Board jurisdiction to deal with the issue pursuant to Regulation 16(1) and (2). It meets the threshold test described in Butts (1993), 124 N.S.R. (2d) 43, where Hallett, J.A. wrote at p. 50, para. 23: In my opinion the Appeal Board has the broad powers described in ss. 180(1), (2) and (3) but only when acting within the sphere of those matters described in s. 173 as grounds for appeal and not excluded from Appeal Board review by reason of s. 150. - 3 - The finding of the Appeal Board and its exercise of jurisdiction in this instance is also consistent with the decision of this Court in Cape Breton Development Corporation v. Penny (1977), 19 N.S.R. (2d) 474. Since the Board could have ordered vocational assistance for Judy Campbell, so can the Appeal Board under Regulation 16(1) and (2). In our opinion the Appeal Board had jurisdiction under the Regulations to make a final and binding decision and therefore committed no error in law or jurisdiction. Leave to appeal having first been granted, we order the appeal dismissed. C.J.N.S. Concurred in: Hart, J. A. Jones, J. A.