Executive Summary: Key Legal and Evidentiary Issues

• Germain Bulger appealed a second dismissal of his workers' compensation claim relating to a visual impairment he alleged was work-related.
   
• Central to the appeal was whether the Workers' Compensation Appeals Tribunal properly applied section 7 of the Workers' Compensation Act and Policy 21-100 on remand.
   
• Four affidavits seeking to admit fresh evidence were filed, but the Court found only one exhibit met the admissibility threshold.
   
• Bulger argued the Tribunal disregarded medical evidence from his family physician and former employers, though the Tribunal had expressly addressed both.
   
• Grounds alleging violations of his language rights and equality rights were raised but were unsupported by the record.
   
• Questions of fact or mixed fact and law were reviewed on a standard of palpable and overriding error, while questions of law were reviewed for correctness.
   

Facts of the case

Germain Bulger stopped working in 2002 and applied for Canada Pension Plan disability benefits the following year. During that process, ophthalmologist Dr. Sanjoy Kumar Gupta diagnosed him with cone-rod retinal dystrophy and progressive bilateral retinal degeneration, leading to loss of central vision, with exams in Montréal and Ottawa consistent with that diagnosis. In 2021, Bulger sought workers' compensation benefits from the Workplace Health, Safety and Compensation Commission for an eye injury, asserting that his vision had deteriorated in 2002 while he worked as a butcher, and alleging exposure to chemicals and blows to the head from hanging hooks. The Commission denied the claim as not work-related, a denial upheld by the Decision Review Office and, in February 2023, by the Appeals Tribunal.

Bulger then appealed to the Court of Appeal, which on February 1, 2024 (2024 NBCA 22) set aside the Tribunal's February 7, 2023 decision and ordered a new hearing, identifying the central issue as whether Bulger could establish a link between his employment and his vision problems. At the rehearing on March 18, 2025, Bulger submitted additional evidence, including letters from former employers, notes from neurologist Dr. Ernest Clevinger, a letter and older consultation notes from his family physician, and documents concerning unrelated back pain. On June 10, 2025, the Appeals Tribunal again dismissed the appeal, concluding the evidence did not establish that Bulger's eye condition arose out of or in the course of his employment. Before this appeal was heard, Bulger filed four affidavits between December 2025 and January 2026 seeking to introduce fresh evidence, most of which the Court found inadequately identified or otherwise inadmissible; only a genetics clinic follow-up report dated October 27, 2025 was accepted.

Policy and legislative provisions at issue

The appeal turned on section 7 of the Workers' Compensation Act, R.S.N.B. 173, c. W-13, and Policy 21-100 (Conditions for Entitlement – General Principles). Section 7(1) requires that compensation be paid where an accident arising out of and in the course of employment causes personal injury. Sections 7(2) and 7(2.1) set out presumptions linking an accident's occurrence "out of" and "in the course of" employment, and direct the Commission to weigh all evidence on a balance of probabilities where contrary evidence exists. The Appeals Tribunal had identified three conditions for Bulger's claim to succeed: a personal injury, resulting from an accident, that arose out of and in the course of his employment. Bulger argued the Tribunal misapplied these provisions but did not specify, in either his notice of appeal or written submissions, how the alleged error occurred.

Reasoning and analysis

Writing for the Court, LeBlanc J.A. applied the standard of review from Longphee v. Workplace Health, Safety and Compensation Commission, 2020 NBCA 45: correctness for questions of law, and palpable and overriding error for questions of fact or mixed fact and law. On the fresh-evidence motions, the Court found most proposed exhibits either lacked relevance, had already been available to the Tribunal, or were unreliable without supporting testimony; only the genetics clinic report was admitted. Turning to the merits, the Court held the Appeals Tribunal had correctly applied section 7 and Policy 21-100, having reviewed the evidence and concluded no causal link existed between Bulger's jobs and his vision problems. Contrary to Bulger's submission, the Tribunal had expressly considered his family physician's documents and the evidence from former employers, finding no tangible proof of head trauma or a causal connection to unspecified chemical exposure. The Court also rejected Bulger's argument that a temporary improvement in his vision between 2000 and 2010 was incompatible with a degenerative diagnosis, noting optometrist Jeannot Cormier's May 6, 2021 letter found no such improvement over a longer period, and citing Workplace Health, Safety and Compensation Commission v. Boudreau, 2021 NBCA 41, for caution in weighing expert evidence against medical literature. Grounds alleging non-compliance with the Court's earlier directions, violations of language rights, and violations of equality rights were each found unsupported by the record or outside the appeal's proper scope. Bulger's request to call witnesses, including a geneticist and former employers, was not a valid ground of appeal, as the Court's Registrar had already advised him that new testimony would not be accepted.

Ruling and overall outcome

The Court of Appeal dismissed Bulger's appeal, finding no error of law or palpable and overriding error of fact in the Appeals Tribunal's decision. The Workplace Health, Safety and Compensation Commission, as respondent, was the successful party. Consistent with the Court's long-standing practice in workers' compensation matters, no costs were awarded to either side.