Decision #52/00 - Type: Workers Compensation
Preamble
An Appeal Panel review was held on May 17, 2000, at the request of a worker advisor, acting on behalf of the claimant's widow.
Issue
Whether or not there is an entitlement to a lump sum of the permanent partial disability pension.
Decision
There is no entitlement to a lump sum of the permanent partial disability pension.
Background
The claimant sustained multiple injuries on April 16, 1990 when he was involved in a motor vehicle accident on his way to work. The claim was accepted by the Workers Compensation Board (WCB) and the claimant received a permanent partial impairment rating of 76%.
In October 1998, the claimant requested a partial payout of his monthly disability pension in the amount of $73,000.00. The claimant's request was granted and the monies were directed towards mortgage, car and a personal loan.
In a letter dated November 23, 1999, the claimant advised the WCB that he had been diagnosed with terminal lung cancer and was requesting a payout of his impairment award. The claimant advised that he had various financial obligations and wanted to go on a holiday with his family. On November 30, 1999, the claimant's wife clarified the request by saying that monies were needed to pay down their mortgage, utilities and various debts.
On December 14, 1999, the adjudicator recommended that the balance of the lump sum settlement be paid out on a compassionate basis. The request was denied by the Executive Director of Case Management under the requirements of Board policy 44.100.10. On December 21, 1999, it was learned that the claimant passed away on December 16, 1999. As a result, the permanent partial disability pension was suspended effective January 1, 2000.
On December 22, 1999, the claimant's widow was advised as follows:
- "Under the policy for lump sum commutations, any applicant applying for commutation will not be permitted to use a commutation to create an estate in a circumstance where the worker is known to be at risk of early death from either a compensable injury or non-compensable cause."
On January 28, 2000, the case was considered by Review Office at the request of a worker advisor, acting on behalf of the claimant's widow. The Review Office determined that there was no entitlement to a lump sum of the permanent partial disability pension. This decision was reached in accordance with Section 26(2) of the Workers Compensation Act (the Act) and WCB policy 44.100.10. The worker advisor appealed Review Office's decision an a non-oral file review was arranged.
Reasons
WCB policy section 44.100.10 deals with lump sum commutations. "The purpose of this policy is to establish the circumstances under which the WCB will grant a worker's request to commute the periodic payment arising from a permanent impairment to a lump sum payment." The policy provisions clearly provide that an applicant "will not be permitted to use a commutation to create an estate in a circumstance where the worker is known to be at risk of early death from either a compensable or non-compensable cause. Unfortunately at the time of his request for commutation, the claimant had been diagnosed with terminal cancer.
Section 60.8(6) of the Workers Compensation Act (the Act) states that the Appeal Commission is bound by the policies of the Board of Directors of the WCB. Although we are deeply moved by the passionate plea of the worker's widow to honour her late husband's request for a commutation, we must nevertheless refuse because we lack the necessary jurisdiction to do so.
Panel Members
R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 24th day of May, 2000