Top court strikes down N.S. workers’ comp limit

Supreme Court decision on chronic pain says tribunals can rule on charter. Stress could be next
By David Brown
|Canadian HR Reporter|Last Updated: 11/11/2003

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Supreme Court ruling last month on how Nova Scotia limits benefits for workers suffering from chronic pain could eventually force employers across the country to adopt new approaches to employee health and safety.

In a strongly worded, unanimous ruling, the court said workers in Nova Scotia suffering from chronic pain could not automatically be excluded from workers’ compensation benefits.

All workers suffering from chronic pain had been limited to four weeks of benefits under section 10B of the Workers’ Compensation Act. Two Nova Scotia workers claimed those provisions violated their human rights under the Charter of Rights and Freedoms. The Supreme Court agreed — 10B was a violation of section 15 of the Charter of Rights and Freedoms and Nova Scotia was given six months to change its laws. (For more on the Supreme Court ruling, see box page 11.)

Legal experts say that the principles used by the Supreme Court to expand the rights of workers to claim benefits in Nova Scotia, could be used in other jurisdictions to similarly challenge limits on compensation benefits for other injuries and illnesses, including, potentially, chronic stress.

The effects of the decision could definitely reach well beyond Nova Scotia and chronic pain claims, said Steven Barrett, a senior partner with Sack Goldblatt Mitchell, the law firm representing the Canadian Labour Congress, which had intervener status in the Supreme Court appeal.

“The fact is that most provinces covered chronic pain in some meaningful way,” he said. But there has been a tendency in recent years for provinces to restrict coverage for certain workers or question the legitimacy of some kinds of injuries.

“There are other types of disabilities that are treated less favourably (than others),” he said, citing psychological stress in Ontario as an example. The clear message from the Supreme Court is that those restrictions could be unconstitutional.

“I expect we’ll see challenges to the Ontario exclusion (for psychological stress),” he added.

Those challenges will also be more likely because, in making its ruling, the Supreme Court also confirmed the authority of all tribunals to decide the constitutional validity of legislation. Until now, administrative tribunals made decisions solely on interpretations of the relevant legislation — in this case the Workers’ Compensation Act of Nova Scotia — without considering whether the legislation was constitutional.

Now, workers in any province who feel they are being unfairly deprived of benefits, or that their condition is being dismissed as somehow less worthy of benefits, could challenge the rules based on section 15 of the charter. The tribunal will be required to consider the challenge.

The decision could change the way compensation boards, and therefore employers, treat workplace stress, said Kenny LeBlanc, one of the lawyers with Nova Scotia’s Workers’ Advisers Program, who represented the claimants at the Supreme Court.

It could be argued that to deny benefits for stress is a violation of human rights under section 15 of the charter, he said, adding: “It is something we have discussed.”

Though it may sometimes be difficult to come up with objective evidence to support a chronic pain claim, the pain is nonetheless real, he said.

Bradley Proctor, a Halifax-based lawyer specializing in employment law with McInnes Cooper, expects the issue to come up soon. “I bet the very next stress case at WCAT (Workers’ Compensation Appeals Tribunal), someone is going to raise section 15; they are going to say it is discrimination,” he said.

It may take a while, but the Supreme Court decision could eventually affect workplace practices, said Barrett. By broadening the grounds upon which injured workers can claim benefits, employers will feel more pressure to take preventive measures to reduce those claims.

“Whenever something costs (employers) money, they will try to limit their exposure,” he said.

Since February 1996, any workers injured on the job in Nova Scotia who developed chronic pain only received benefits while participating in a four-week Functional Restoration Program intended to get the claimant back to work.

Shelley Rowan, communications director for the Workers’ Compensation Board, said when the program was launched in 1996, research showed that the best treatment of chronic pain was early intervention and return to work if possible. In fact, in some quarters Nova Scotia was considered to have taken a “leadership role,” she said.

“We believed that it was the appropriate program at the time but now the courts have said those regulations are discriminatory.”

Although the Supreme Court said denying the reality of chronic pain “reinforces widespread negative assumptions” about the condition, the WCB never claimed chronic pain wasn’t a real condition, she said. “We were not saying these people are fraudulent.

“There is no question that people who are experiencing chronic pain do have pain,” she added. What’s not always clear is whether the pain is caused by work.

David Bennett, national director of health safety and environment for the Canadian Labour Congress, said he was pleased and surprised by Supreme Court ruling.

“The court went way beyond what anyone had expected to come out of the case,” said Bennett. He had hoped the court would say Nova Scotia had to conform to section 15 of the charter. It went beyond that to say workers should not have to go to court in order to win rights enshrined in the charter, he added.

“It was a very important matter of principle for all injured workers, not just those suffering from chronic pain and not just for the two workers whose rights had been taken away,” he said.

“The decision has implications for other areas of workers’ compensation where workers rights to claim is either limited or curtailed. The most obvious example is chronic stress,” he said.

So although some illnesses and injuries are more difficult to prove than others, this decision implies it is unconstitutional to deny benefits for that reason alone, he said. “Boards are going to have to be very careful of denying compensation in cases of stress resulting from shift work.”

He also predicted that if compensation boards and governments are no longer able to curtail benefits for ailments like chronic pain or stress, employers will be forced to enact policies to reduce those problems from arising in the first place.

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