Executive Summary: Key Legal and Evidentiary Issues

• Discrepancies in the reported dates and details of the alleged workplace accident led to questions about the claimant’s credibility.

• The sufficiency and admissibility of medical evidence, particularly X-ray reports and images, were central to the Tribunal’s findings.

• Application of the Workers’ Compensation Act and the reconsideration provisions under s. 22.1(1) of the WHSCC Act was a key legal issue.

• The test for admitting fresh evidence on appeal, including requirements of due diligence and materiality, was directly addressed.

• The standard of review for Tribunal decisions—palpable and overriding error—guided the appellate court’s analysis.

• No costs or damages were awarded, with each party ordered to bear their own costs.

Facts of the case

Edward McLeod filed a claim for benefits under the Workers’ Compensation Act, R.S.N.B. 1973, c. W-13, on September 17, 2010. He alleged that on November 20, 2009, while working for Zellers in Saint John, he was pinned against a wall by a forklift carrying bales of cardboard, injuring his right wrist. He later amended the date of the accident to November 10, 2008. McLeod did not seek medical attention until 2010, when he visited the Emergency Room at St. Joseph’s Hospital in Saint John. His former employer opposed the claim, stating that McLeod’s employment had ended due to job abandonment, that the employer was unaware of any accident until it received the claim form, that there was no record of such an accident, and that McLeod had not sought medical attention until two years after the alleged incident.

The Workplace Health, Safety and Compensation Commission (WHSCC) denied the claim in a letter dated June 8, 2011, stating that the evidence did not support the occurrence of an accident out of and in the course of employment. McLeod appealed to the Workers’ Compensation Appeals Tribunal (WCAT) in May 2012. Although his letter requesting an appeal stated he would present witnesses who could attest to the occurrence of the accident, none were produced at the hearing. The WCAT relied on an X-ray report from September 2010 that stated: “No fracture or dislocation is seen.” The X-ray image itself was not presented. The appeal was dismissed on May 24, 2012 (Decision 20126476), with the Tribunal finding that there was insufficient evidence to substantiate a claim that McLeod’s present condition related to a 2008 accident as stated, and that his credibility was at issue.

Over the years, McLeod submitted many requests for reconsideration, all of which were denied until 2018. That year, it was found that the June 2011 decision incorrectly stated the claim had been reviewed by a WorkSafeNB Medical Advisor. In December 2018, the WCAT upheld the original decision to deny his claim. An appeal of that decision was dismissed in 2020. McLeod provided updated medical evidence, including a bone scan and another X-ray, which did not show a past fracture. Additionally, he produced a letter from the Registrar of the College of Physicians and Surgeons of New Brunswick, stating that the 2010 and 2013 X-rays and bone scan showed no evidence of a past fracture.

On August 26, 2024, McLeod requested another reconsideration hearing, asserting that his recently obtained copy of the 2010 X-ray image clearly showed a healed fracture. On January 30, 2025, the WCAT denied McLeod’s request for reconsideration, finding that the information provided was not new evidence, as the transcribed report of the X-rays dated September 17, 2010, was presented and considered at the original Tribunal hearing and referenced in subsequent decisions. The Tribunal concluded that the X-rays could have been discovered through the exercise of reasonable diligence. This denial became the subject of the present appeal. In addition, McLeod filed a motion before the Court of Appeal to present fresh evidence, including the attending physician’s chart of September 17, 2010, a letter of the Appeals Tribunal of January 26, 2022, the attending physician’s chart of May 13, 2014, and a letter from WorkSafeNB of July 30, 2024.

Discussion of policy terms and statutory provisions

The case involved the application of the Workers’ Compensation Act, R.S.N.B. 1973, c. W-13, specifically section 7, which sets out the requirements for entitlement to benefits. The reconsideration process was governed by section 22.1(1) of the Workplace Health, Safety and Compensation Commission and Workers’ Compensation Appeals Tribunal Act, S.N.B. 1994, c. W-14. This provision allows the Appeals Tribunal to reconsider a decision if new evidence has become available or has been discovered that is substantial and material to the decision, and the evidence did not exist at the time of the hearing or could not have been discovered through reasonable diligence. The Court also referenced the test for the admission of fresh evidence as set out by the Supreme Court in Palmer v. The Queen, [1980] 1 S.C.R. 759, which requires that the evidence could not have been introduced at trial by the exercise of due diligence, must be relevant, credible, and could reasonably be expected to have affected the result.

Outcome and ruling

The New Brunswick Court of Appeal dismissed both the motion for fresh evidence and the appeal. The Court found that the evidence McLeod sought to admit did not meet the Palmer test, as the charts from the attending physicians were already part of the record and the “missing witness letter” was not relevant to whether the WCAT erred in denying the latest reconsideration request. The Court found no palpable and overriding error in the Appeals Tribunal’s decision, holding that the X-ray image was not substantial and material evidence because the report had already been considered in previous hearings and the image itself did not add any substantial or material information. The Court dismissed the appeal, with each party to bear their own costs. No costs or damages were awarded, and no monetary amount was granted in favor of either party.