Chronic Pain, Impairment, Workers Compensation and Equality: Downey v. Nova Scotia (Workers Compensation Appeals Tribunal)
Canadian Bar Review, Vol. 89, No. 1, 2011
27 Pages Posted: 10 Jan 2011 Last revised: 16 Apr 2011
Date Written: January 10, 2011
Abstract
This note examines the issue of the treatment of chronic pain under workers compensation law in the context of the right to equality set out in s. 15 of the Canadian Charter of Rights. Workers compensation is a provincial jurisdiction and systems of workers compensation vary significantly from province to province. In the Martin case the Supreme Court of Canada ruled that the exclusion compensation for chronic pain from the general Nova Scotia worker’s compensation scheme was in breach of s. 15 of the Charter. Following this decision, Nova Scotia enacted new legislation which brought chronic pain within the general scheme but subject to a limit of the amount of compensation payable. These provisions were challenged in the Downey case but have been upheld by the workers compensation appeals tribunal (WCAT) and the Nova Scotia court of appeal. Although the case itself directly concerns only the treatment of chronic pain-related impairment, it is suggested that the equality provisions of the Charter may have broader implications for the general scheme of compensation based on impairment.
Keywords: Workers Compensation, Equality, Impairment
Suggested Citation: Suggested Citation