The Appeal CommissionThe Workers Compensation Act of Manitoba

The relevant parts of the statute read:

4(2) Where a worker is injured in an accident, wage loss benefits are payable for his or her loss of earning capacity resulting from the accident on any working day after the day of the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

29(1) Compensation is payable to a dependent of a deceased worker as follows:

(a) to the spouse or common-law partner of the worker,

(ii) monthly payments equal to 90% of the worker's net average earnings before the accident, less any amount payable to another dependent under clauses (b) to (e) ….

The appellant's counsel argued that the terms are not interchangeable, that they contemplate two different types of benefit. He further argued that, since legislators used two distinct terms, they must have intended that they have distinct meanings.

Counsel for the board conceded that monthly payments are not the same as wage loss benefits.

In our consideration of this matter, we reviewed historical versions of the Act. From this, we note that the term "monthly payments" is a continuation of language used in the pre-1992 Act. In that act, the monthly payments were a clearly distinct type of benefit due to a surviving spouse. Prior to 1992, the surviving spouse was entitled, for life, to the greater of a fixed monthly amount ($816 as of July 1, 1990) or an allowance equal to the compensation which would have been due to the worker had he survived.

The Act which came into force on January 1, 1992 maintained the term "monthly payment", but introduced a new formula for calculating the amount of that payment, being "90% of the worker's net average earnings before the accident". The 1992 changes removed the fixed amount, as well as introducing time limits on these payments.

One must assume that the legislators who brought about these changes were aware that the result of the new act would be significantly different benefits to the dependent of a worker.

We agree with both counsel that the terms are distinct and that the monthly payments contemplated in subsection 29(1) are not the same as wage loss benefits.

Although the end result is the same, the Adjudicator was incorrect in making his decision based on entitlement/non-entitlement to wage loss benefits. Similarly the Review Officer should not have denied the entitlement to benefits because there was no "loss of earning capacity." The entitlement to compensation under sections 28 and 29 is by reason of the death of the worker, not the worker's loss of earning capacity. While this may seem to be a splitting of semantic hairs, it is an important distinction.

In this case the appellant, the claimant's widow, is entitled to three different benefits: 1) a lump sum payment under ss. 28(2); 2) a second lump sum under ss. 29(1)(a)(i); and 3) the monthly payments in ss. 29(1)(a)(ii).

She has received the first two of these benefits. It is in the calculation of the third, the monthly payments, pursuant to the formula in this subsection, that it is determined that she is not entitled to any amount of money. This is the second element to this issue, as noted above. This element is further sub-divided into two parts: what is included in "average earnings before the accident"; and at what point should the accident have been deemed to have occurred?

In respect of the first, the board's legal counsel argued that, as the claimant had no earnings for a number of years prior to his death, the amount upon which to calculate the monthly payment is zero - 90% of zero equals zero.

The appellant's counsel argued that this is a circular argument, that, although benefits are not dependent on a loss of earning capacity, the determination of the amount of the benefit is based on earnings.

Subsection 45(1) of the Act is quite clear in stating that "average earnings before the accident" shall be calculated on "income from employment and employment insurance benefits…." This does not include retirement pensions. Board policy 44.80.10.10 elaborates on how average earnings are to be calculated. Unfortunately for the appellant, pursuant to the statute and board policy, her late husband had no earned income during the years before his death.

Therefore, we conclude that the position of the board counsel is the correct one and that the claimant did not have any earned income upon which to base a calculation.

In respect of the second part, the appellant's counsel argued that the board was using an incorrect date as the time of the accident. His position was that the time of the accident should have been deemed to be at the time the worker ingested the asbestos, which led to his fatal illness, not at the time of his death.

The following sections of the Act are relevant to this consideration:

1(1) "occupational disease" means a disease arising out of and in the course of employment and resulting from causes and conditions

(a) peculiar to or characteristic of a particular trade or occupation; or

(b) (b) peculiar to the particular employment;

but does not include

(c) an ordinary disease of life ….

1(12) Where an impairment or loss of earnings of a worker is caused by an occupational disease, the day on which the impairment or loss of earnings began, as determined by the board, is deemed to be the day of the accident.

Board counsel noted that, as the claimant was retired, he would have had no loss of earning capacity, so the issue becomes when did the impairment begin. The Act gives the board the right to make this determination. In cases such as mesothelioma, where there is a very long development period, board practice is to deem the date of accident to be the date at which there is first objective medical evidence of the illness. (This may be an x-ray or biopsy or other procedure which leads to a diagnosis.)

From the medical evidence on file, we note that the claimant was first seen by a specialist in respiratory medicine on January 30, 2001. This specialist reported that the claimant had previously been admitted to hospital for pleural effusion; and that the claimant was sent for a CT scan, which showed evidence of mesothelioma. We also note that a pleural biopsy was performed on March 2, 2001. This evidence may have led to the diagnosis, which, in turn, would establish the deemed date of accident. We note that the diagnosis of mesothelioma was not made until an autopsy was performed after the death of the claimant.

This leads us to conclude that the board was correct in deeming the date of the impairment to have occurred at the time of his death or shortly before that time.