The Nova Scotia Workers’ Compensation Appeals Tribunal recently reached a verdict in a compensation claim involving a worker who suffered a right ankle sprain on September 29, 2016.
The worker, employed as a housekeeper/cleaner at a medical facility through a contracted cleaning service, filed a claim that was initially accepted by the Workers’ Compensation Board.
After providing physiotherapy treatment to the worker, the Board determined that the worker was not eligible for temporary earnings-replacement benefits (TERB) beyond Oct. 28, 2016. The Board contended that the worker’s ongoing back pain was unrelated to the ankle injury, as stated in a decision issued on December 29, 2016.
However, the case took a turn when the Workers’ Compensation Appeals Tribunal, in Decision 2017-288-AD on October 18, 2019, recognized that the ankle injury and resulting limping had exacerbated the worker’s pre-existing back pain. This acknowledgement was supported by correspondence dated Feb.3, 2020, in which the Board admitted a “temporary aggravation” of back pain.
Despite this recognition, the Board’s decision on November 10, 2020, awarded TERB to the worker from October 28, 2016, to March 31, 2017, based on hours worked. The worker subsequently received TERB from March 31, 2017, to April 29, 2019, along with additional TERB for the period April 29 to May 29, 2019, as granted in December 2020.
However, in the Board’s decision on Dec. 4, 2020, it was determined that TERB would no longer be provided after April 29, 2019, as the earnings loss was deemed unrelated to the compensable injury. The decision also noted the worker’s refusal to complete a Client Information Questionnaire (CIQ) sent by the Board. This decision was upheld by a Hearing Officer on Jan. 19, 2022.
Displeased with the outcome, the worker appealed the Jan. 19, 2022 decision to the Workers’ Compensation Appeals Tribunal. The worker submitted appeals on May 23 and May 31, 2023, including various documents related to Supreme Court proceedings, union matters, communication with the Workers’ Advisers Program, and correspondence with other agencies.
The Tribunal conducted an in-person hearing for the appeal, with the worker representing herself. The Board and the employer did not actively participate in the hearing. On June 7, 2023, further submissions were filed, including a range of emails, correspondence, and documents. The worker also provided correspondence dated Nov. 23, 2022, related to the Board’s correction of documents under the Freedom of Information and Protection of Privacy Act (FOIPOP).
On June 13, 2023, the worker submitted additional documents and offered consent for the Tribunal to speak with upcoming community support workers. However, the Tribunal determined that obtaining evidence in such a manner would be inappropriate.
The central issue before the Tribunal was whether the worker was entitled to earnings-replacement benefits beyond April 29, 2019. After a comprehensive review of the evidence and submissions, the Tribunal concluded that while the worker’s injury likely contributed to the earnings loss, the temporary benefits were not justified as the loss was no longer temporary.
The worker was advised to collaborate with the Board in assessing entitlement to a pain-related impairment rating to explore the possibility of extended benefits.
For more information, see 2022-34-AD (Re), 2023 CanLII 58562 (NS WCAT).
