J. Date: 19980206 Docket: CA 133212 NOVA SCOTIA COURT OF APPEAL Chipman, Roscoe and Cromwell, JJ.A. BETWEEN: JOHN THORNTON -and-­ THE WORKERS' COMPENSATION APPEALS TRIBUNAL OF NOVA SCOTIA and THE WORKERS' COMPENSATION BOARD OF NOVA SCOTIA Respondents K.H. (Kenny) LeBlanc for the Appellant Jonathan Davies for the Tribunal and David Farrar and John R. Ratchford for the Board Appeal Heard: February 6, 1998 Judgment Delivered: February 6, 1998 THE COURT: The appeal is allowed and the matter is remitted to the Tribunal as per oral reasons for judgment of Chipman, J.A.; Roscoe and Cromwell, JJ.A., concurring. The reasons for judgment of the Court were delivered orally by: CHIPMAN, J.A.: This is an appeal for which leave has been granted from a decision of the Worker's Compensation Appeals Tribunal (the Tribunal) dated October 25, 1996. It is limited to question as to the jurisdiction of the Tribunal. The Tribunal dismissed the appellant's appeal from the decision of Hearing Officer finding that the appellant was not entitled to temporary total disability payments under the Workers' Compensation Act, S.N.S. 1994-5, c. 10 (the Act). The appellant alleged that he suffered left knee injury on July 25, 1988 while performing activities for his employer. He applied to the Worker's Compensation Board (the Board) for benefits. In various decisions, the Board refused benefits on the ground that the appellant did not suffer an injury by accident arising out of or in the course of employment. The Hearing Officer's decision dated August 23, 1995 was the final decision of the Board. This decision affirmed previous Board decisions to deny the appellant's claim that he had suffered personal injury by accident arising out of and in the course of employment, and so was not entitled to receive worker's compensation benefits under the former Act (Workers' Compensation Act, R.S.N.S.1989, c. 508 as amended). The Tribunal's decision dismissing the appellant's appeal was rendered prior to the decision of this Court in Doward v. Workers' Compensation Board (N.S.) (1997), 1997 CanLII 14985 (NS CA), 160 N.S.R. (2d) 22.  The basis for dismissing the appellant's appeal was the Tribunal's conclusion that the Hearing Officer did not arrive at a decision which was patently unreasonable. The Tribunal employed the following language in expressing this conclusion: do not find it patently unreasonable that the hearing officer found that the inference the Worker was seeking was not reasonable one. The inference being sought by the worker, of course, is that his knee problem arose out of and in the course of his employment. ... find that it was not patently unreasonable for the hearing officer to conclude that the medical evidence did not support the inference that the Worker was seeking. do not have to find that would reach the same conclusion that the hearing officer reached, only that her decision was not patently unreasonable. This Court in Doward, supra, dealt with the standard of review by the Tribunal of decision of Hearing Officer at pp. 33-38, 160 N.S.R. (2d). In particular, the Court said at p. 36: There is no reason to think that the Tribunal is any less expert generally in matters relating to workers' compensation that fall within s. 243(7) than the hearing officer. The Tribunal appeared to think otherwise in the discussion at p. 16 of its decision, but when carefully examined, the only support for its position is found in cases where the hearing officer heard evidence and the Tribunal did not. The Tribunal must, in such cases, afford the usual appellate deference to trier of fact. Support for this approach can be found in the very wide scope of review of hearing officer's decision given to the Tribunal by s. 243(7)(e). This suggests that the Legislature intended the Tribunal to be able to substitute its judgment for that of the hearing officer in the instances where an appeal lies. The deference that courts owe to specialized tribunals as discussed in Pezim, supra, and Southam, supra, is not owed to the same extent by the Tribunal... And at p. 37: An appeal to the Tribunal is statutory appeal. have concluded that if case qualifies for appellate review under s. 243(7), the deference that the Tribunal must show is only with respect to the advantages the hearing officer may have in the fact finding process in any particular case. In the context of this appeal, am of the opinion that the Tribunal erred in concluding that any decision of the hearing officer on an issue under s. 243(7)(e)(ii) was subject to review only on the basis of the "patently unreasonable" standard. An appeal from the Hearing Officer to the Tribunal is a statutory appeal. It is not a judicial review. The concept of patently unreasonable decision has no place in this statutory appeal process. The Tribunal has made an error of jurisdiction as to its powers on an appeal from the hearing officer. The appeal is allowed and the matter is remitted to the Tribunal. Chipman, J.A. Concurred in: Roscoe, J.A. Cromwell, J.A. 1996 C.A. No. 133212 IN THE NOVA SCOTIA COURT OF APPEAL BETWEEN: JOHN THORNTON Workers' Compensation Claimant (Claim No. 1429835) -and- THE WORKERS' COMPENSATION APPEALS TRIBUNAL OF NOVA SCOTIA and THE WORKERS' COMPENSATION BOARD OF NOVA SCOTIA RESPONDENTS REFERENCE SHEET Workers' Compensation Appeals Tribunal Alison Hickey Appeal Commissioner Claimant John Thornton Claim Number 1429835 Date of Hearing May 29. 1996 Date of Decision October 25. 1996 Decision Number 96-069-TAD
The primary issue in this appeal was the standard of review to be applied on appeals from a Hearing Officer to the Workers' Compensation Appeals Tribunal. The appellant had his appeal denied on the grounds that the decision of the Hearing Officer was not patently unreasonable. Allowing the appeal and remitting the matter for re-hearing, that an appeal from a Hearing Officer to the Tribunal is a statutory appeal. It is not a judicial review, and the standard of review is therefore one of correctness not whether or not the Hearing Officer's decision was patently unreasonable. The deference that the Tribunal must show is only with respect to the advantages the Hearing Officer may have in the fact finding process of a particular case.