Page v. Workplace Health, Safety and Compensation Commission of New Brunswick, 2006 NBCA 95
What is the test for determining when “new evidence” is submitted to the WHSCC that would allow it to reconsider a previous decision?
An injured worker’s claim for compensation had been allowed by the Appeals Tribunal of the Workplace Health, Safety and Compensation Commission (WHSCC). Later, the injured worker had his benefits discontinued after a medical opinion had been obtained by the WHSCC throwing doubt on whether the he had been injured in the first place. The WHSCC did not claw back the worker’s previous benefits, but stopped his benefits from that point forward. The injured worker appealed, and the case ended up in front of the Court of Appeal. We argued that the decision to terminate his benefits was made as part of the WHSCC’s obligation to monitor the status of injured workers. However, the Court of Appeal found that the WHSCC had effectively used the new medical opinion to reconsider the original decision to allow the worker’s claim, but that the medical opinion did not constitute “new evidence” within the meaning of section 22 of the Workplace Health, Safety and Compensation Commission Act, S.N.B. 1994, W-14. The Court set out a test for what constituted “new evidence” in the case of conflicting doctors or expert opinion. A new scientific opinion can only be used to reverse a previous decision where it is based on more recent scientific research and information. If the opinion is merely contradicting the previous opinion relied on to make the first decision, then it is not “new evidence”.