Canadian Employment Law Today - sample

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2018 More Cases tional therapy and physiotherapy as well." A few months later, Paul's family doctor diagnosed her with fibromyalgia — wide- spread muscle pain and tenderness in the muscle fibres — and also thought she might have depression. Paul received worker's compensation benefits from Worksafe NB, which were sus- pended at one point and then reinstated in early 2014. On Jan. 14, 2014, Worksafe NB decided to have Paul undergo a functional capacity evaluation. However, Paul's physio- therapist emailed Worksafe NB saying Paul would likely be seen as not giving full effort on the evaluation due to her various issues and the assessment wasn't the best way to help Paul move forward. However, the evaluation went ahead and the assessing occupational therapist con- cluded Paul showed a lack of objective signs of physical effort and clinical inconsisten- cies. e assessor added that the evaluation wasn't reliable because Paul gave inappro- priate responses to a symptoms question- naire, placebo tests, and functional testing, and she was inconsistent between her per- ceived ability and actual function. e occupational therapist noted that Paul was "pleasant, punctual and co-opera- tive through the testing," which wasn't "con- sistent with the characteristics of someone who does not want to give full effort." Paul showed "high physical effort" in at least one instance and she used pain management strategies during the testing. e report also indicated Paul's scores for numeric and visu- al pain were consistent and there was no sug- gestion her low effort was due to "the pursuit of secondary gain." Due to the finding that Paul didn't give a full effort to the functional capacity assess- ment, Worksafe NB discontinued her ben- efits. Paul appealed to the New Brunswick Workers' Compensation Appeals Tribunal, but the tribunal determined there was "no objective evidence to challenge the findings of the (occupational therapist) that (Paul) demonstrated a low physical effort during the assessment." Since the New Brunswick Worker's Compensation Act stipulated that low physical effort during an assessment was obstruction, the tribunal upheld Worksafe NB's discontinuance of benefits to Paul. Paul appealed the decision to the court, arguing the tribunal erred in law and didn't consider all the evidence — particularly her testimony on her condition and why she couldn't give a full effort in the testing. e court noted that the Workers' Com- pensation Act and related legislation dictat- ed that the tribunal had an obligation to hear the case and "render a determination based on the merits and justice of the case." How- ever, the court found the tribunal didn't meet this obligation. e tribunal's decision made it clear that it only considered what it identi- fied as objective evidence such as the evalu- ation report. is put the onus on Paul to prove Worksafe NB was wrong, which was an error. Instead, the tribunal should have considered all evidence — objective and subjective — and all the merits of the case to determine if Worksafe NB could prove Paul didn't give a full effort in her assessment and therefore end her right to benefits. By shifting the onus on Paul to prove she deserved benefits from Worksafe NB to prove she didn't deserve them, the tribunal erred in law, the court said. It allowed Paul's appeal and referred the matter back to the Tribunal for a new hearing. See Paul v. Work- safe NB, 2018 CarswellNB 309 (N.B. C.A.). Tribunal didn't consider worker's explanation « from WORKER on page 1 Join us as we celebrate the best human resources practices in Canada. Presented by Canadian HR Reporter and Thomson Reuters, the fourth annual awards honour individuals and teams from HR departments across the country. New for 2018! The awards have expanded into a full gala event featuring cocktails and a dinner. It's an unique opportunity to network with your peers and discover the practices of the best professionals in the nation. Brought to you by Sponsors VENNGO HEALTHY WORKPLACES AWARD EMPLOYMENT LAWYER OF THE YEAR AWARD FRAGOMEN WORLDWIDE BEST DIVERSITY INITIATIVE AWARD BENCHMARK BENEFIT SOLUTIONS TOP BENEFITS ADMINISTRATOR AWARD QUEEN'S UNIVERSITY IRC PROFESSIONAL DEVELOPMENT AWARD HUMANACARE HR PROFESSIONAL OF THE YEAR AWARD Date: Sept. 27, 2018 Venue: The Ritz-Carlton, Toronto (181 Wellington Street) Cocktails: 5:30 p.m. Dinner: 6:30 p.m. Dress: Business Emcee: Todd Humber, Publisher/Editor-in-Chief, Canadian HR Reporter nationalhrawards.com To order tables or individual tickets, contact Paul Burton at paul.burton@tr.com or (416) 649-9928. BEST MENTAL HEALTH INITIATIVE AWARD HR AWARDS 2018 NATIONAL

• Cover