Executive Summary: Key Legal and Evidentiary Issues

• Whether “call centre agent” was properly deemed a “suitable occupation” for estimating Ms. Hunter’s capable earnings under Policy 21-417 and the Workers’ Compensation Act.
• Interpretation and application of medical evidence regarding Ms. Hunter’s ability to sit and stand, including alleged misreading and omission of key findings from the physiotherapy and occupational therapy reports.
• The Tribunal’s failure to reconcile inconsistent functional assessments (light physical demand vs. limited tolerance for standing and sitting) when determining work capacity.
• Legality of excluding Ms. Hunter’s non-compensable conditions (e.g., fibromyalgia) from the “suitable occupation” analysis, despite medical evidence that these conditions affect her ability to do sedentary work.
• Compliance of the Tribunal’s decision with its statutory duty to decide on the “real merits” of the case and to apply Policy 21-417 and Policy 21-214 in a transparent and reasoned way.
• Whether factual errors and misapprehension of evidence amounted to palpable and overriding error justifying appellate intervention and reinstatement of full loss-of-earnings benefits.

Factual background and injury

Elsie Hunter worked as a personal support worker at Nashwaak Villa Inc. in New Brunswick. On July 2, 2021, she ruptured her left Achilles tendon at work and her workers’ compensation claim for this injury was accepted. She began receiving wage replacement, medical aid, and vocational rehabilitation benefits under the Workers’ Compensation Act. She also had several pre-existing or concurrent health conditions, including diabetes, fibromyalgia, degenerative disc disease in the spine, and carpal tunnel syndrome. These personal conditions interacted with her workplace injury in ways that became central to the later disputes about her work capacity.
Specialist evidence early in the claim suggested the Achilles tendon injury had become chronic and made it unlikely she could safely return to her pre-accident, largely on-foot personal support work. Surgery was discouraged because of her comorbidities. An internal medical consultant for the Commission, however, opined that with the use of a knee scooter and appropriate restrictions, she could perform light work that avoided prolonged weight-bearing or high exertion. The Commission ultimately concluded she had a permanent restriction against work requiring on-foot demands.

Medical assessments and functional capacity

As the claim progressed, the Commission gathered functional assessments to guide vocational planning. An occupational therapy file review in July 2022 characterized Ms. Hunter as meeting the “Light Physical Demand Level,” meaning she could work on her feet up to two-thirds of an eight-hour day. Yet that report explicitly cautioned that, for her overall health, she should avoid becoming too sedentary and should walk through her day, taking breaks as needed, and that she was “far from requiring a mobility aid.”
A physiotherapy functional assessment on July 20, 2022 added important detail and nuance. The physiotherapist observed Ms. Hunter could stand for about 15 minutes before needing support or to sit, and recorded that in her past personal support role she only sat occasionally, with 20 minutes being the longest sustained sitting period. At the time of assessment, Ms. Hunter reported she could tolerate sitting for about 10 minutes before needing to change position and that her pain increased when her leg hung down while seated.
Later, in February 2024, her family physician, Dr. Andrew Richardson, provided a written opinion at the request of her Workers’ Advocate. He listed her compensable and non-compensable health conditions and agreed that extended sitting would be difficult, considering both sets of conditions. He noted that she had previously attempted call centre work, which aggravated her fibromyalgia and chronic fatigue, and concluded that only “some gainful employment may be possible” if she had an ergonomic workstation and ongoing occupational therapy, with adjustments to both her workstation and her hours of work.

Vocational rehabilitation and deemed “suitable occupation”

Following stabilization of her condition, the Commission determined that her pre-accident employer could not provide a permanent position accommodating her restrictions. Ms. Hunter was referred to the Workforce Re-Entry Program, with the clear warning that once her re-entry plan was complete, her loss-of-earnings benefits could be reduced based on either actual earnings in a new job or the estimated earnings she was deemed capable of earning in another occupation.
Using the National Occupational Classification and guided by Policy 21-417 (Suitable Work and Suitable Occupation), the Commission’s vocational staff identified “call centre agent” as a proposed suitable occupation in an Estimated Capable Earnings (ECE) Report dated February 21, 2023. The policy defines a “suitable occupation” as one consistent with the worker’s physical and cognitive ability, employment qualifications, that reasonably exists in the labour market, and that may reflect training done as part of rehabilitation. The ECE Report reasoned that call centre work, being sedentary and primarily performed in a seated position, was physically appropriate in light of her Achilles injury, and that she met the typical educational requirement of completion of secondary school. Labour market information suggested such work “reasonably exists” in her region.
A later Job Match Report by an occupational therapist in August 2023 compared the physiotherapy functional assessment with the demands of call centre work and concluded that Ms. Hunter had the “safe functional abilities” required to primarily sit, but also to stand and walk as needed, handle small loads, and coordinate her upper limbs. This was treated by the Commission as confirming that call centre agent was a suitable occupation for estimating her capable earnings.

Commission decisions and internal review

On June 5, 2023, the Commission formally adopted call centre agent as Ms. Hunter’s suitable occupation for loss-of-earnings calculations. Her monthly entitlement was adjusted to $750.20 based on deemed earnings in that occupation. Ms. Hunter sought internal review by the Commission’s Decision Review Office. On August 1, 2023, that office suspended the June 5 decision, indicating more analysis was needed.
However, on August 24, 2023, Ms. Hunter’s case manager again confirmed call centre agent as a suitable occupation, now explicitly relying on the Job Match Report and existing medical evidence. This reaffirmation was upheld by the Decision Review Office on November 21, 2023, becoming the Commission’s final decision: her wage-loss benefits would be reduced by the estimated capable earnings from the call centre occupation, despite her objections.

Appeal to the Workers’ Compensation Appeals Tribunal

Ms. Hunter appealed that final Commission decision to the Workers’ Compensation Appeals Tribunal. The key legal and factual question was whether “call centre agent” was lawfully and reasonably identified as a “suitable occupation” under Policy 21-417 for purposes of estimating her capable earnings under s. 38.11 of the Workers’ Compensation Act.
She argued that prolonged sitting is the essential physical demand of a call centre job, and that the very medical evidence relied upon by the Commission showed she could not safely sit for the extended periods that job requires. She pointed to the physiotherapist’s findings on her limited sitting tolerance and to Dr. Richardson’s opinion that extended sitting, in light of both her compensable injury and her personal conditions, would be difficult and had previously worsened her fibromyalgia and fatigue during an earlier call centre job. She also submitted that if the “suitable occupation” required workplace accommodations and reduced hours to be tolerable, then she was not truly capable of performing it in the sense required by s. 42.4(1) of the Workers’ Compensation Act and Policy 21-417, which she said required the Commission to assess the worker “as they are.”
The Tribunal Chair dismissed the appeal. Relying heavily on the occupational therapy and physiotherapy reports and Policy 21-417, the Chair held that the Commission had correctly identified call centre agent as a suitable occupation. The Tribunal emphasized that the job was sedentary, that Ms. Hunter met the educational requirements, that the role existed in her region, and that no “objective medical evidence” refuted the opinions of the physiotherapist and occupational therapist. The Chair further reasoned that Ms. Hunter’s difficulties with the call centre job stemmed from her “personal conditions,” and that such non-compensable conditions were “not considered when determining a suitable occupation.”

Appeal to the Court of Appeal: standard of review and legal framework

Ms. Hunter, self-represented, appealed the Tribunal’s decision to the New Brunswick Court of Appeal. The Court applied its established post-Vavilov workers’ compensation framework: questions of pure law are reviewed for correctness, and questions of mixed fact and law are reviewed for reasonableness, but material factual errors that undermine the “real merits” of the case can also justify appellate intervention. The Court looked to earlier appellate authorities, including Longphee and VSL Canada, for the principle that palpable and overriding factual error, misapprehension of material evidence, or an interpretation of the record that no reasonable person could adopt may amount to an error of law or jurisdiction that opens the door to appeal.
The statutory framework required the Commission, when calculating loss-of-earnings benefits, to estimate the worker’s loss and then adjust benefits annually based in part on “the earnings it is estimated the worker is then capable of earning at a suitable occupation” under s. 38.11(12)(b) of the Workers’ Compensation Act. The Act does not define “suitable occupation,” but it does define “suitable work” in s. 42.4(1) as appropriate work that the injured worker is capable of doing, considering functional abilities and employment qualifications, and that does not endanger the worker’s health, safety, or well-being. Policy 21-417 then defines “suitable occupation” in alignment with that concept, as an occupation consistent with the worker’s physical and cognitive ability, employment qualifications, and reasonably available in the labour market.
Under Policy 21-417, when determining estimated capable earnings, the “capacity to work and earn in a suitable occupation” is the relevant factor, rather than the existence of a specific job offer. The policy also cross-refers to Policy 21-214, under which benefits may be suspended or cease where a “personal condition not related to the injury or a circumstance not related to the injury becomes the dominant cause of the worker’s inability to work.”

Errors in the Tribunal’s evaluation of medical evidence

The Court of Appeal found two major problems in the Tribunal’s handling of the evidence underlying its conclusion that call centre agent was a suitable occupation. First, the Tribunal relied on the July 12, 2022 occupational therapy file review to state Ms. Hunter could work at light physical demand level (on her feet up to two-thirds of a workday), but it failed to grapple with the same therapist’s express recommendation that Ms. Hunter avoid sedentary function and should walk throughout the day for her general health. That recommendation directly undercut the idea that a predominantly seated, sedentary call centre position was compatible with her condition.
Second, the Tribunal mischaracterized and selectively quoted the July 20, 2022 physiotherapy functional assessment. It claimed that the assessment “concluded” she could sit for a maximum of 20 minutes, but in fact the therapist had merely described that in her old personal support job she sat occasionally, with 20 minutes as the longest period. For her current condition, Ms. Hunter’s reported sitting tolerance was only about 10 minutes before needing to change position, and she experienced increased pain when her leg hung down in a seated posture. The Tribunal also failed to reconcile this limited tolerance with the occupational therapist’s assertion that she could work on her feet for up to two-thirds of an eight-hour day, a capacity that did not fit comfortably with the observed need to sit or lean after 15 minutes of standing.
In the Court’s view, these misreadings and omissions amounted to a misapprehension of key medical evidence. Because they went to the heart of whether Ms. Hunter was realistically capable of performing the essential physical demands of a call centre occupation, they were both palpable and overriding. The resulting conclusion that the occupation was “suitable” for the purpose of reducing her loss-of-earnings benefits could not be said to rest on the real merits of the case or on a statute-compliant exercise of Tribunal jurisdiction.

Misapplication of Policy 21-417 and treatment of non-compensable conditions

Beyond the evidentiary missteps, the Court also criticized the Tribunal’s application of Policy 21-417. The Tribunal had asserted that Ms. Hunter’s “personal conditions” (such as fibromyalgia) were “not considered when determining a suitable occupation,” but it did not clearly identify any statutory or policy basis for this blanket exclusion. The definitions of “suitable work” and “suitable occupation” focus on what the worker is in fact capable of doing, in light of their functional abilities and without endangering health and safety. Nothing in those definitions directs decision makers to artificially ignore non-compensable conditions that significantly limit the worker’s real-world capacity to perform the deemed occupation.
The only policy text potentially supporting the Tribunal’s stance was paragraph 10 of the “Interpretation” section of Policy 21-417, which, together with Policy 21-214, allows suspension or cessation of benefits where a personal condition unrelated to the injury becomes the dominant cause of the worker’s inability to work. Yet the Tribunal did not undertake any analysis of whether Ms. Hunter’s personal conditions were in fact the dominant cause of her inability to perform the call centre job, nor did it discuss how Policy 21-214 applied. Instead, it simply recited the provisions and asserted, without elaboration, that personal conditions were not relevant to determining a suitable occupation.
The Court found that this approach failed to explain which parts of Policy 21-417 were actually being applied and how. In doing so, the Tribunal did not properly discharge its statutory duty under s. 21(9) of the Workplace Health, Safety and Compensation Commission and Workers’ Compensation Appeals Tribunal Act to decide cases based on their real merits and to apply applicable policies in a reasoned, transparent way. This policy misapplication was a further basis for appellate intervention.

Outcome and remedial orders

Having identified both factual and legal flaws in the Tribunal’s decision, the Court of Appeal allowed Ms. Hunter’s appeal. It set aside the Tribunal’s October 24, 2024 decision and reinstated the earlier August 1, 2023 Decision Review Office determination, which had suspended the reduction of her benefits pending proper analysis. The matter was remitted to the Commission for a new redetermination consistent with the Court’s reasons.
Importantly, the Court also ordered that Ms. Hunter’s workers’ compensation benefits for her compensable Achilles tendon injury be reinstated in full as of August 1, 2023, with no deduction for estimated capable earnings from a deemed call centre occupation. On costs, the Court made no general costs order in her favour but directed the Commission to pay her allowable disbursements, recognizing that she had successfully challenged the Tribunal’s decision while representing herself. The judgment does not specify the dollar value of the back benefits or the disbursements, so the exact total monetary amount ordered in Ms. Hunter’s favour cannot be determined from the decision alone.