The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on June 4, 2002, at the request of the claimant.

Issue

Whether or not the claimant's workers compensation benefits have been correctly calculated.

Decision

The claimant's workers compensation benefits have been correctly calculated.

Decision: Unanimous

Background

During the course of his employment as a miner in September 1982, the claimant sustained multiple injuries when he was struck in the back by a piece of loose. The Workers Compensation Board (WCB) accepted the claim for compensation and variety of benefits were issued to the claimant which included a 74% permanent partial impairment award.

On February 25, 2002, the claimant asked the WCB to check into lost earnings from 1982 to the present, including wages and bonuses. The claimant stated, "Also included in this are COLA or cost of living allowance, shift premiums and service premiums. Vacation pay was based on a percentage of total yearly earnings, along with travel allowance. I feel that the cost of living adjustments from the WCB over the years are only a very small reflection of what my earnings would have amounted too (sic), if I had not been injured. Wages alone for this year would amount to well over $48,000 not counting bonus and the opportunity to work overtime. This would put my earnings well into the $60,000 or $80,000 a year range. In closing I would also like to state that I was transferred to [name] staff in 1988 and laid off in January of 1998 as a cost cutting measure. If I had not been injured I would still be employed as an hourly employee, working in production mining with the protection of the union with 27 years of seniority."

In a memo to a WCB case manager dated March 5, 2002, a WCB payment assessor noted that the claimant was paid at the maximum allowable for pre-1992 files as per the legislation. CPI indexing occurs every year as supplied by the Federal Government but WCB benefits were not intended to be wage replacement. On March 5, 2002, the case manager advised the claimant of the above information and the claimant asked that his case proceed to Review Office for its consideration.

On March 8, 2000, Review Office determined that the claimant's workers' compensation benefits were correctly calculated. In its decision, Review Office stated that it examined all of the claimant's wage loss benefit rates and they were at the maximum rate permitted by legislation for the applicable periods of time. Review Office also looked at the claimant's permanent partial impairment award calculations, which were also based on the maximum amount permissible by legislation. Review Office concluded that no adjustments could be made in either instance.

Review Office advised the claimant that the WCB could not compel the employer to employ him. The disability pension that the claimant received from the employer together with his permanent partial impairment award exceeded the maximum wage loss benefits payable. From the WCB's perspective, the claimant was already receiving the maximum compensation possible.

Review Office indicated that it could not disagree that the claimant's current financial position would be better if he had not been injured and everything else remained equal. "However, he was injured and the extent of his entitlement is governed by The Workers Compensation Act. He has been compensated to the maximum provided for by it."

On April 9, 2002, the claimant appealed Review Office's decision and a non-oral file review was arranged.

Reasons

The claimant brings forth this appeal questioning whether his compensation benefits have been correctly calculated. Specifically, he takes exception to the fact that his monthly disability pension, which he receives from the accident employer, is deducted from his pre-accident wage loss benefits.

WCB policy 44.80.30.10 is very explicit and clear on this issue. Section A. 3(b) states as follows: "A worker may sometimes receive insurance or other benefits from other sources as a result of his or her injury. If those benefits are not specifically excluded in section 4, they will be included in post-accident earnings if they were earned or accrued while the worker received benefits from the WCB."

We note that 'employer disability benefits' are not specifically excluded in section 4. The Appeal Commission is statutorily bound by the policies of the Board of Directors of the WCB. Therefore, these benefits must be taken into consideration when determining the claimant's post-accident earnings. Accordingly, the claimant's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
P. Challoner, Commissioner
B. Malazdrewich, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 25th day of June, 2002