Help

BI’s Article search uses Boolean search capabilities. If you are not familiar with these principles, here are some quick tips.

To search specifically for more than one word, put the search term in quotation marks. For example, “workers compensation”. This will limit your search to that combination of words.

To search for a combination of terms, use quotations and the & symbol. For example, “hurricane” & “loss”.

Login Register Subscribe

Court OKs chronic pain evaluations

Reprints

HALIFAX, Nova Scotia--Nova Scotia employers will not pay higher rates for workers compensation coverage even though chronic pain claims are expected to increase given a recent court ruling, a workers comp spokeswoman says.

And the cost of complying with the ruling will expand an already substantial deficit in the province's workers comp system.

In Philip Cohen vs. Nova Scotia (Workers' Compensation Board), the Nova Scotia Court of Appeal ruled that a worker who developed chronic pain before April 17, 1985, is entitled to have his case reviewed to determine if he is eligible for workers comp benefits.

The ruling revolved around interpretation of legislation and policy developed in response to a 2003 Supreme Court of Canada ruling in Nova Scotia (Workers' Compensation Board) vs. Donald Martin that struck down limitations on comp benefits for chronic-pain claims (BI, May 24, 2004).

The Supreme Court case was based on equality provisions, which went into effect on April 17, 1985, of the Canadian Charter of Rights and Freedoms. In response, Nova Scotia's workers comp statute was amended to specify that a worker is entitled to an assessment to determine benefit eligibility if medical evidence established that the employee had chronic pain on or after that date.

The WCB's policy, though, specified that a worker had to develop the chronic pain after that date. A case manager denied Mr. Cohen's claim since his chronic pain developed before April 17, 1985. He appealed and the Nova Scotia Court of Appeal ruled earlier this month that workers injured before that date are eligible to be assessed for chronic pain benefits.

About 1,400 people have contacted the WCB saying they were injured before that date and asked to be assessed for chronic pain benefits, a WCB spokeswoman said. The court ruling "doesn't mean they're going to receive benefits," she said. "It just means they're eligible to be assessed."

Canadian workers comp coverage is provided largely by provincial workers comp boards and financed by employer-paid premiums. Nova Scotia employers pay the second-highest premiums among the provinces, with an average rate of $2.65 Canadian ($2.60) per $100 Canadian ($98.32) of insurable earnings.

Nova Scotia's workers comp system has a deficit of $390 million Canadian ($383.4 million), partly due to the $197 million Canadian ($193.7 million) in claim costs arising from the Supreme Court decision that led the board to raise rates by 8 cents per $100 Canadian in 2005.

The recent decision likely will result in an additional $12 million Canadian ($11.8 million) for chronic pain claims before 1985, but the board decided it will not raise rates to pay for those claims, the spokeswoman said.

While employers had hoped for a reduction in rates before the ruling, "It looks like (the rates) are not going down anytime soon because we have a huge unfunded liability and we keep adding to it," said Leanne Hachey, vp, Atlantic Canada in Halifax for the Canadian Federation of Independent Business, which represents more than 100,000 employers.

The more the WCB pays for the additional claims, though, the less that will be available for increased benefits for employees or rate reductions for employers, the WCB spokeswoman said.

These court decisions place the sustainability of the workers comp system in jeopardy because they drive the system deeper into debt, observers say.

Philip Cohen vs. Nova Scotia (Workers' Compensation Board), 2007 NSCA 118; Dec. 12, 2007