Executive Summary: Key Legal and Evidentiary Issues

• Whether Mr. Thomas’s “average earnings” for loss-of-earnings benefits should be based on his 2014 paramedic income or his 2017–2018 post-paramedic income.
• Central dispute over when work-related PTSD resulted in actual disablement from work, as distinct from when symptoms or diagnosis first appeared.
• Weighing conflicting medical and psychological evidence on PTSD (family doctor, psychiatrist, two psychologists, internal review findings) and what it showed about timing of disablement.
• Interpretation and application of s. 38.1(1) of the Workers’ Compensation Act and WorkSafeNB Policy 21-210 on how to select the earnings period that “best” represents a worker’s income.
• Appellate review of the Appeals Tribunal’s findings under the “palpable and overriding error” standard for mixed questions of law and fact.
• Consideration and ultimate rejection of allegations that the Workers’ Advocate and others misrepresented the claim or discriminated against Mr. Thomas because of his mental illness.

Factual background and employment history

Travis Thomas worked as a paramedic for Ambulance New Brunswick from November 2009 until July 2014. During that time he was repeatedly exposed to traumatic events in the course of his frontline emergency work, which later formed the factual basis for a claim of work-related Post-Traumatic Stress Disorder (PTSD). In July 2014, he was charged with several drug-related offences, including possession for the purpose of trafficking, and was immediately suspended from his paramedic position. On the day of his suspension, he consulted his family physician, Dr. Jean T. Muambi-Kabongo, reporting insomnia, poor appetite, talking in his sleep and stating that he believed he had PTSD from his job. The doctor noted instability on examination and referred him to a psychiatrist for assessment of possible PTSD and a possible manic disorder.
Mr. Thomas was then evaluated by psychiatrist Dr. Arif Bungash. Although Dr. Bungash recorded that Mr. Thomas believed he suffered from PTSD, he did not diagnose work-related PTSD. Instead, he associated Mr. Thomas’s symptoms with domestic problems, substance use, and anxiety driven by his looming criminal trial. In May 2015, Mr. Thomas pleaded guilty to the drug charges and was sentenced to imprisonment; his employment as a paramedic was terminated and he was suspended by his professional association. After his release from custody, he obtained employment in a call centre from at least August 29, 2016 until May 1, 2018. His Record of Employment dated May 25, 2018 recorded “Illness or injury” as the reason for separation. Shortly thereafter he filed a workers’ compensation claim, asserting that he had been suffering from PTSD linked to his paramedic work since July 14, 2014. Ambulance New Brunswick responded that it was not aware of any specific traumatic calls or PTSD concerns raised by Mr. Thomas during his employment, and confirmed that July 14, 2014 was the date of his suspension.

Medical and psychological evidence on PTSD and disablement

The Workplace Health, Safety and Compensation Commission (WorkSafeNB/the Commission) referred Mr. Thomas to psychologist Kristina Hobson, who assessed him in July 2018 and issued a report in October 2018. She observed that psychometric testing results were invalid due to indications of over-reporting but, after reviewing his trauma history, mental health and work and treatment history, she recorded that he described developing the classic triad of PTSD symptoms—hypervigilance, re-experiencing, and avoidance—subsequent to his paramedic career. In her clinical opinion, the traumatic events he experienced as a paramedic either caused or exacerbated his psychological distress. She also noted that his progressively increasing drug use and related criminal conviction further deepened his distress and created additional employment barriers. Despite inconclusive formal testing, she diagnosed chronic, severe PTSD resulting from cumulative trauma exposure.
The Commission sought a peer review by psychologist Dr. Jane Walsh, a colleague of Ms. Hobson. In November 2018, Dr. Walsh opined that the file information did not support a diagnosis of PTSD caused by exposure to work-related traumatic events and raised concerns about over-reporting and possible malingering. Importantly, she did not personally examine Mr. Thomas. Relying on Dr. Walsh’s report, the Commission initially denied the claim on November 26, 2018.
Mr. Thomas requested an internal review. On January 23, 2019, the Issues Resolution Office overturned the denial. It made specific factual findings that he had a delayed onset of PTSD symptoms such as hypervigilance, flashbacks and avoidance in response to the traumatic work events he had experienced, accepted Ms. Hobson’s PTSD diagnosis, and characterized his condition as a delayed acute reaction. The claim was sent back to the Commission to assess entitlement to benefits; that internal review decision was not appealed.
In January 2024, psychologist Dr. Wallace Dudley conducted a remote assessment to determine Mr. Thomas’s suitability for a PTSD treatment program, not to provide a full forensic or diagnostic report. Mr. Thomas reported to Dr. Dudley that his paramedic work involved traumatic situations and that his symptoms worsened significantly while working for Ambulance New Brunswick. His family and partner reportedly saw that he was unwell before he did, observing nightmares, severe stress reactions and difficulty getting out of bed. Dr. Dudley noted that polysubstance use appeared to have developed largely in reaction to PTSD symptoms, and that there were also behavioural addictions. He recorded workplace problems such as chronic lateness requiring union involvement and reprimands before he formally went off work with a physician’s note. Dr. Dudley’s clinical impressions included PTSD and a probable personality disorder, differentiating between a psychological condition related to prior work-related trauma and a separate, non-work-related psychological condition. He found Mr. Thomas’s presentation apparently valid, without obvious defensiveness or intentional exaggeration, but emphasized that his assessment was for treatment rather than a comprehensive psychological evaluation with rigorous psychometrics. Crucially, he did not opine on the specific date or period when disablement from work began.

Commission and Tribunal decisions on average earnings

On December 5, 2019, after the internal review had accepted the PTSD diagnosis as compensable, the Commission determined that Mr. Thomas was entitled to loss-of-earnings benefits for his PTSD as of July 17, 2018, the date of Ms. Hobson’s assessment. It made several key factual findings: Mr. Thomas’s paramedic earnings ended with his 2014 suspension; he had no employment-related income while incarcerated; he did work in 2017 and 2018; and the first medical documentation supporting a conclusion that PTSD was actually restricting his ability to work was Ms. Hobson’s 2018 report. Based on those findings, the Commission chose his employment-related income shown on his 2017 tax return together with his Record of Employment and Employment Insurance benefits from January 1 to July 17, 2018 as the period that best represented his earnings for calculating benefits.
Mr. Thomas appealed this decision to the Workers’ Compensation Appeals Tribunal. He argued that the wage figure adopted by the Commission did not best reflect his earnings resulting from his compensable injury and that his 2014 paramedic income should instead be used as the basis for “average earnings.” At the Tribunal hearing in February 2025, his full file was filed, along with his written “testimony” in which he stated that he first noticed PTSD symptoms in late 2011 and that, by 2014, those difficulties interfered with his daily work. He also linked his addiction problems to his PTSD.
The Appeals Tribunal’s written reasons, released May 8, 2025, quoted extensively from the reports of his family doctor, the psychiatrist, and Ms. Hobson, but did not discuss the reports of Dr. Walsh or Dr. Dudley. The Tribunal acknowledged Mr. Thomas’s evidence that PTSD symptoms had affected his life, community functioning and ability to work before the 2018 diagnosis, and noted that the 2018 diagnosis specifically referenced his former paramedic employment, which ended in 2014, as the cause of his PTSD. It also expressly recognized that the Workers’ Compensation Act is remedial legislation that must be interpreted broadly and liberally in favour of inclusion.
Nonetheless, the Tribunal identified several “confounding factors”: there was no evidence that his paramedic employment ended because of symptoms that later led to the PTSD diagnosis; he had been incarcerated in 2016–2017 for drug-related matters; the 2018 psychological report accepted that his incarceration worsened his psychological condition and that he himself linked drug use and PTSD; there was a four-year gap between his dismissal and the 2018 diagnosis; and there were comorbid diagnoses. The Tribunal stressed that Dr. Bungash’s 2014 psychiatric report—contemporaneous with the suspension and dismissal—did not support a diagnosis of PTSD despite the family doctor’s expressed suspicion in the referral. It also noted that his conviction and incarceration substantially limited his employment prospects. Applying Policy 21-210, the Tribunal concluded that no earnings period better represented his income than the 2017–2018 period selected by the Commission, and therefore upheld the Commission’s decision to calculate his loss-of-earnings benefits based on his income in the year prior to the 2018 diagnosis.

Statutory and policy framework for average earnings

The Court of Appeal reviewed the statutory framework under the Workers’ Compensation Act. Section 34(1) and (2) confer on the Commission exclusive jurisdiction to determine, among other things, the existence and degree of disability arising from an injury, the permanence of disability, and the amounts of average earnings, average net earnings, and loss of earnings. Section 38.11(2) requires the Commission to estimate a worker’s loss of earnings where an injury or recurrence causes loss of earnings beyond the day of injury and to pay 85 per cent of that estimated loss.
Under s. 38.1(1), “average earnings” are defined as the daily, weekly, monthly or regular remuneration that the worker was receiving at one of several possible reference points: at the time of the injury, at the time of a recurrence of the injury, previously, at the time of the loss of earnings, or at the time of death—whichever appears to the Commission to best represent the worker’s earnings, subject to upper limits and potential adjustment where earnings would normally be expected to increase over time. “Average net earnings” deduct income tax, Employment Insurance premiums and Canada Pension Plan contributions from the average earnings, and “loss of earnings” is essentially the difference between average net earnings and what the worker remains capable of earning in a suitable occupation, after similar statutory deductions.
WorkSafeNB Policy 21-210, Determining Average Earnings (Release 4), operationalizes those definitions. It restates that average earnings are the regular remuneration the worker received at the time of injury, recurrence, previously, at the time of loss of earnings or at death, as WorkSafeNB considers best to represent the worker’s earnings. Depending on the employment situation, the policy allows average earnings to be set using only earnings from the “accident employer” when there has been a recent, permanent change in employment and earnings are expected to continue at that level, or using other employment-related earnings when those better represent the injured worker’s loss of earnings. The policy authorizes WorkSafeNB to look at an earnings period sufficient to demonstrate a regular pattern, often up to three years.
The core legal contest in this appeal centered on how the Tribunal applied this legislative and policy framework—specifically, whether it lawfully and reasonably selected the 2017–2018 income as Mr. Thomas’s “average earnings” instead of his higher 2014 paramedic income, in light of the timing of disablement.

Standard of review in the Court of Appeal

By statute, appeals from the Workers’ Compensation Appeals Tribunal to the Court of Appeal are limited to questions of jurisdiction or questions of law. At the same time, s. 21(9) of the governing tribunal statute requires the Appeals Tribunal to decide matters on the “real merits and justice” of each case. Previous Court of Appeal decisions, including Longphee v. Workplace Health, Safety and Compensation Commission and Nagle v. R., informed the standard of review. Questions of law and jurisdiction must be reviewed on a correctness standard, while questions of fact or mixed law and fact (where no discrete question of law can readily be extracted) are reviewed for palpable and overriding error. An error is “palpable” if it is obvious or plain to see, and “overriding” if it is sufficiently significant to vitiate the finding such that the conclusion cannot safely stand. Only factual errors or misapprehensions that could have affected the outcome will justify appellate intervention.
The Court characterized the core question—whether the Tribunal erred in deciding which earnings best represented Mr. Thomas’s income for loss-of-earnings calculations—as a mixed question of law and fact. That meant the Tribunal’s decision was entitled to deference and could only be disturbed if a palpable and overriding error was established.

Appellate analysis of disablement date and earnings period

The Court accepted that it was undisputed Mr. Thomas suffered from PTSD caused by his paramedic work and that he eventually became disabled because of it. The live issues were when the disablement from work occurred and which income period best represented his earnings under s. 38.1(1) and Policy 21-210.
On the evidence, the Court found there was no independent proof of work-related disablement before 2018. July 14, 2014—the suspension date—could not reasonably be treated as the date of disablement because it reflected a disciplinary action responding to criminal charges, not a departure from work due to incapacity from PTSD. The Court emphasized the absence of medical documentation showing work absences for mental illness prior to the suspension, and the fact that the contemporaneous psychiatrist, Dr. Bungash, did not diagnose PTSD or identify any disabling psychiatric condition despite being prompted by a referral that raised a suspicion of PTSD.
The Court noted that, after Mr. Thomas’s conviction and incarceration, he was able to secure and maintain call-centre employment through to May 2018. Only after that employment ended was there a medical report—Ms. Hobson’s 2018 report—confirming work-related PTSD and indicating that PTSD symptoms had developed subsequent to his paramedic career. The Commission’s Issues Resolution Office had relied on that evidence to find a delayed acute reaction, a conclusion that was never appealed. Dr. Dudley’s later report, while supportive of a PTSD diagnosis and its work-related roots, did not specify a date of disablement and was expressly limited in scope.
Mr. Thomas argued that the Tribunal had improperly conflated diagnosis (2018) with disablement (which he said began years earlier). The Court rejected this, holding that the Tribunal had expressly acknowledged his testimony about early difficulties at work but, after weighing the evidence and considering complicating factors—criminal conduct, incarceration, comorbid conditions, and the lack of contemporaneous medical support for a 2014 disablement date—concluded that disablement occurred only in 2018. The Court held that this was a conclusion reasonably open to the Tribunal on the record and not tainted by palpable and overriding error.

Outcome of the appeal and treatment of ancillary allegations

The Court further held that the Tribunal’s use of the 2017–2018 earnings period was consistent with s. 38.1(1) and Policy 21-210, both of which permit the use of earnings at the time of injury, earlier earnings, or earnings at the time of loss of earnings, whichever best represent the worker’s earnings. The Tribunal had considered the remedial nature of the legislation, the parties’ submissions, and the full evidentiary record, and had reasonably concluded that no better representation of Mr. Thomas’s income existed than that chosen by the Commission. The Court found no failure to apply the correct legal test for “average earnings,” no ignoring of material evidence, and no interpretation of the record that fell outside the range of what a reasonable decision-maker could adopt. It identified no error of law and no palpable and overriding error of fact.
Mr. Thomas had also alleged that his Workers’ Advocate misrepresented or mishandled his claim and that he was subjected to ongoing discrimination based on his mental illness, causing a breakdown in communication and undermining his recovery. These allegations were not pursued in any meaningful way in his appellate brief or oral submissions. The Court, in any event, found that the evidentiary record did not support them.

Ruling and overall result

In the result, the New Brunswick Court of Appeal dismissed Mr. Thomas’s appeal and affirmed the Workers’ Compensation Appeals Tribunal’s decision to uphold the Commission’s selection of his 2017–2018 income as the basis for calculating his loss-of-earnings benefits. The successful party was WorkSafeNB (Travail Sécuritaire NB), as respondent. The Court followed its longstanding practice in workers’ compensation matters by ordering no costs of the appeal, and the judgment does not specify the quantum of workers’ compensation benefits payable. Accordingly, while it is clear that WorkSafeNB’s position on the earnings calculation was sustained and no costs were awarded against Mr. Thomas, the exact total amount of benefits, damages, or costs in favour of the successful party cannot be determined from this decision.