The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on February 9, 2004, at the claimant's request.

Issue

Whether or not the claimant is entitled to wage loss benefits beyond October 24, 2003.

Decision

That the claimant is not entitled to wage loss benefits beyond October 24, 2003.

Decision: Unanimous

Background

During the course of his employment as a truck driver on July 17, 2001, the claimant injured his lower back region when he was unhooking a trailer. As a result of the accident, the claimant received wage loss and vocational rehabilitation benefits and services.

On October 10, 2003, the WCB confirmed to the claimant that wage loss benefits would terminate on his 65th birthday in accordance with Section 39(2)(b) of The Worker's Compensation Act (the Act). This meant that wage loss benefits were payable until October 24, 2003. On October 20, 2003, the claimant disagreed with this decision and the case was forwarded to Review Office for consideration.

On November 14, 2003, Review Office confirmed that the claimant was not entitled to wage loss benefits after October 24, 2003. Review Office noted that the claimant was 62 years old at the time of his accident and that he continued to suffer from the effects of his compensable injury at the date of his 65th birthday. According to the Act, however, wage loss benefits were only payable until the worker reached the age of 65 years, which occurred on October 25, 2003. Review Office referred to Section 39(3) and 39(2) of the Act when rendering its decision. On December 8, 2003, the claimant disagreed with Review Office and a non-oral file review was arranged.

Reasons

Section 39(2) of The Workers Compensation Act (the Act) states as follows:

"Subject to subsection (3), the wage loss benefits are payable until

(a) the loss of earning capacity ends, as determined by the board; or

(b) the worker attains the age of 65 years."

There is no question that this section of the Act is very precise and exact in its meaning. Wage loss benefits are continued to be paid until either loss of earning capacity ends or the worker reaches 65 years of age.

The evidence on file clearly establishes that the claimant turned 65 years old on October 25th, 2003. Therefore, in accordance with the Act, we find that the claimant is not entitled to wage loss benefits beyond October 24th, 2003. Consequently his appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 22nd day of March, 2004