Rescinded policy applies if application made when policy was in force: NB Court of Appeal

The New Brunswick Court of Appeal has upheld a WHSCC Appeals Tribunal’s ruling that the policy in effect when an application for compensation was made applied, despite its rescission before the final decision was made.

In Workplace Health, Safety and Compensation Commission v. Clark, 2022 NBCA 16, Larry Clark became significantly disabled after suffering a severe brain injury two decades prior. He applied with the Workplace Health, Safety and Compensation Commission (WHSCC) for compensation under Policy 21-403 “Home Modifications to Assist with Activities of Daily Living” (Release 004).

Release 004 allowed substitute financial compensation in lieu of home modifications. Its successor, Release 005, does not.

While Release 004 was in effect, and even after it was rescinded, Clark contended that, according to his rehabilitation specialists, an attached garage was necessary for his safety. At the time, the local bylaws precluded the construction of the garage.

More than three years later, the WHSCC finally issued a decision, stating that a detached garage was good enough to meet Clark’s needs and, since his claim fell under Release 005, substitute financial compensation was not available. This was confirmed by the WHSCC’s review office.

On appeal, the Workers’ Compensation Appeals Tribunal reversed the decision and found that an attached garage was necessary. The tribunal further found that the WHSCC unreasonably delayed the decision. As such, the tribunal ordered the Commission to award financial compensation for home modifications and manage Clark’s file accordingly.

The WHSCC appealed the tribunal’s decision, arguing that Release 005 applied and the tribunal lacked jurisdiction to give effect to Release 004.

The appellate court disagreed.

Tribunal bound to apply applicable policy

While the WHSCC had exclusive jurisdiction in settling and adopting policies, the Appeals Tribunal must apply the policy only if it is “applicable in the case,” said the court. In this case, Release 004 was found to be the applicable policy, and the tribunal was bound to apply it in making the decision, said the court.

Thus, the tribunal did not err in ordering the WHSCC to award financial compensation for home modifications, said the court.