Nova Scotia tribunal explores employer obligations when injuries surface after employment
The Nova Scotia Workers' Compensation Appeals Tribunal recently dealt with a case examining whether an employer should bear compensation costs when a worker reported their injury after leaving employment.
The worker sustained a shoulder injury but continued working for several months, believing the injury would heal naturally as similar injuries had in the past. After changing employers, persistent symptoms led to a compensation claim.
The case focused on the timing of injury reports under workers' compensation legislation, and what this meant for employer obligations and cost allocation.
The incident occurred in July 2021 while the worker was carrying metal sheeting up scaffolding. Having worked in mechanical insulation since 1989, his role involved installing insulation on mechanical systems at commercial sites.
During testimony, the worker explained that he had been "lent out" to work for another company performing similar work at various locations. The injury occurred while carrying "15-20 rolls of metal sheeting weighing approximately 30 pounds each" when a forklift wasn't available.
The worker continued working until April 2022 without reporting the injury. In testimony, he explained that while "there are lots of days he goes home with sore shoulders from working," this injury was different as he noticed having right shoulder pain while walking, which was unusual.
The Nova Scotia Workers' Compensation Act, Section 83, stated the requirements clearly:
"The worker has given the employer notice of the accident as soon as practicable after the happening of the accident and before the worker has voluntarily left the employment where the worker was injured."
The employer argued they could have provided modified duties. During testimony, they noted that since the worker's claim, another worker had injured their shoulder, and the company had provided light duties to that worker.
However, when questioned by the worker's representative, the employer "acknowledged that it may not have been able to provide full time modified duties for the more than two-year period the worker has been off work."
The case brought up questions about which employer should bear the claim costs, particularly since the worker's condition worsened during subsequent employment.
The decision referenced the Act's definition of occupational disease as "a disease arising out of and in the course of employment and resulting from causes or conditions peculiar to or characteristic of a particular trade or occupation."
The Tribunal found this definition relevant given the nature of mechanical insulation work and its physical demands over the worker's career span.
The Tribunal made several determinations. On the notice issue: "I find insufficient evidence to demonstrate that any prejudice flowed to [the employer] from [the worker's] failure to give notice as soon as practicable and before he left its employ."
On the worker's ability to continue working: "The evidence suggests he was able to continue working in his usual fashion throughout the remainder of his time with [the employer]. [The worker's] symptoms only worsened after he left in April 2022."
The Tribunal identified remaining matters for the Board to address:
"There are issues the Board needs to address at first instance. Those issues pertain to whether [the employer] can be relieved of some, or all of the claim costs associated with [the worker's] injury. Relief would either be based on apportionment between employers, provided [the worker's] shoulder injury is found to be an occupational disease. Alternatively, [the employer's] claim costs could be reduced or eliminated if [the worker's] subsequent employer is found to be the accident employer."
