The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 28, 2004. The Panel discussed this appeal on the same day and again on November 17, 2004.

Issue

Whether or not the Appellant is entitled to receive additional death benefits over and above the lump sum payments of $5,880.00 and $32,340.00;

Whether or not the WCB should reimburse costs associated with medical testing conducted in the United States; and

Whether or not the WCB should reimburse travel costs associated with the claimant's property in Arizona.

Decision

That the Appellant is not entitled to receive any additional death benefits;

That the WCB should not reimburse costs associated with medical testing conducted in the United States and;

That the WCB should not reimburse travel costs associated with the claimant's property in Arizona.

Decision: Unanimous

Background

This case involves consideration of the compensation payable to dependents following the death of a worker and the extent of coverage provided for medical aid and expenses. The worker, who had retired in 1993, had been exposed to asbestos in the course of his 37 years of employment as a chemist. In January 2003 the worker filed a claim for benefits with the Workers Compensation Board (WCB) for exposure to asbestos in the workplace.

The file information indicated that in 2001 the worker was found to have a right upper lobe lesion. He underwent a lobectomy to remove the lesion on October 22, 2001 and the pathologist's report confirmed carcinoma of his right lung. The cancer eventually spread to other parts of his body leading to the worker's death on July 26, 2003 at the age of 69. The worker was survived by his wife and two adult children.

Following consultation with a medical expert in asbestos related diseases, the WCB internal medicine consultant concluded that the cause of the worker's lung cancer was both smoking and occupational asbestos exposure. The WCB accepted responsibility for the claim.

The worker was provided with medical aid assistance including the cost of prescription drugs, reimbursement for mileage and parking expenses for travel to medical appointments, lawn care and an independent monthly living allowance for additional home maintenance. Home care was provided and respite care was offered by the WCB.

In June 2003, the worker's spouse requested reimbursement for the costs incurred when the worker traveled to the United States for a CT scan in August 2001 due to a 7 week waiting list in Manitoba and reimbursement for rental payments made on the couple's mobile home in Arizona when they could not travel due to the worker's illness. In a letter dated June 10, 2003, the WCB adjudicator advised that costs associated with the CT scan would not be covered as this service was available in Manitoba and that the rental costs for their home in Arizona would also not be covered.

Immediately following the worker's death, the WCB adjudicator wrote to the worker's widow enclosing a $5,880 payment representing the initial lump sum compensation payable to the estate of a deceased worker under section 28 of The Workers Compensation Act (the "Act"). On September 12, 2003, the WCB adjudicator advised the worker's widow that in addition to the $5,880 payment, she was entitled to receive a lump sum tax free payment of $32,340.

The worker's widow appealed the WCB's decisions of June 10, 2003 and September 12, 2003. The Appellant submitted that the two lump sum payments did not adequately compensate her for the funeral expenses, the loss of income resulting from her husband's death in the form of lost pension and old age security benefits, the additional living expenses she will incur for the many jobs that her husband used to do for her or for the pain and suffering she and her family endured during his illness.

The Appellant also requested reimbursement for the mileage and parking expenses she incurred to travel from Selkirk to visit her husband when he was hospitalized in Winnipeg for lung surgery in 2001, as well as the travel expenses associated with selling their property in Arizona and retrieving their belongings following her husband's death.

The WCB advised the Appellant that costs associated with travel to Arizona and travel expenses associated with visiting her husband during his surgery would not be reimbursed. These decisions were also appealed to the Review Office.

The Review Office considered the appeal and concluded that the provisions of subsection 27(1.1) of the Act covered reimbursement for expenses incurred by the spouse to visit her husband during his hospitalization for lung surgery. Subsection 27(1.1) of the Act provides as follows:

Emergency expenditures
27(1.1) Where a worker dies or is hospitalized in critical or serious condition as the result of an accident, the board may reimburse one member of the immediate family of the worker for reasonable expenses incurred as a result of the accident.

In determining that the spouse should be reimbursed for the travel expenses incurred during her husband's hospitalization, the Review Office concluded as follows:

"The WCB recognizes that an injury that is so serious that the worker is hospitalized in serious or critical condition or results in death can involve expenditures that are out of the ordinary and may impose a burden on the injured worker or the injured worker's family. These expenses must be incurred as a result of the accident. Emergency expenses include funds that would permit a family member to travel to be with the severely injured worker by paying for travel, meals, accommodation, and wage loss. The WCB will reimburse actual reasonable emergency expenses incurred by one member of the immediate family as provided in Section 27(1.1) of the Workers Compensation Act."

The above paragraph reflects WCB policy 44.120.10 relating to Emergency Expenditures.

With respect to the lump sum payments totaling $38,220.00, the Review Office held that these amounts could not be increased nor could the WCB reimburse the costs associated with the CT scan performed in the United States or the costs associated with the couple's property in Arizona.

In reaching its decision the Review Office pointed out that it was bound by the provisions of the Act governing the limits of compensation payable on a worker's death. Under subsection 28(2) of the Act an immediate payment is provided to the estate of $5,000 and costs for transporting the body to the place of residence. The spouse received $5,880, reflecting this payment and the applicable cost of living increase. No additional compensation is provided for funeral costs.

The Review Office also referred to subsections 29(1) and (2) of the Act, which provide for a lump sum payment to the spouse of a deceased worker of $45,500 less 2% for each year that the worker is over 45 years of age at the time of death, as well as monthly payments equal to 90% of the worker's net average earnings before the accident. The spouse received the sum of $32,340 in accordance with the calculation required under section 29. The Review Office held that the spouse was not entitled to monthly payments as the worker was retired and therefore had no net average earnings at the time of his WCB claim. The Review Office also confirmed the WCB's decision not to reimburse the costs of medical testing in the United States or travel costs to Arizona without providing reasons.

On August 23, 2004, the widow appealed the Review Office decision. The claimant's widow as well as his son and daughter appeared at the hearing held on October 28, 2004.

Appellant's Submission

At the hearing, the Appellant submitted that the compensation provided by the WCB did not adequately or reasonably cover the economic or emotional loss that she and her family had suffered as a result of her husband's death.

While the family understood that the Panel was constrained in its ability to award any amounts other than those provided in the Act, the Appellant expressed the hope that by bringing this appeal changes might be made in the future to improve the benefits allowed in these situations.

Reasons

In considering the Appellant's submission that the benefits received do not adequately reflect the full economic and emotional loss suffered in this case, it is important to keep in mind that workers compensation legislation is based upon the trade-off by which workers gave up their right to sue their employers but gained compensation that does not depend upon the fault of the employer or its ability to pay. The advantages and disadvantages of this system were set out by the Supreme Court of Canada in Pasiechnyk v. Saskatchewan (Workers' Compensation Board) at [1979] 2 S.C.R. 890 at paragraph 26 as follows:

"The importance of the historic trade-off has been recognized by the courts. In Reference re Validity of Sections 32 and 34 of the Workers' Compensation Act, 1983 (1987), 44 D.L.R. (4th) 501 (Nfld. C.A.), Goodridge C.J. compared the advantages of workers' compensation against its principal disadvantage: benefits that are paid immediately, whether or not the employer is solvent, and without the costs and uncertainties inherent in the tort system; however, there may be some who would recover more from a tort action than they would under the Act. Goodridge C.J. concluded at p. 524:

While there may be those who would receive less under the Act than otherwise, when the structure is viewed in total, this is but a negative feature of an otherwise positive plan and does not warrant the condemnation of the legislation that makes it possible."

The authority of the Appeal Commission and its ability to award compensation is governed and limited by the provisions of the Act and its Regulations. The Panel does not have jurisdiction to award compensation that is not contemplated in the legislation. Under the legislative scheme, workers are provided, in subsection 4(1) of the Act, with a right to compensation for work-related injuries in accordance with the provisions of Part 1 of the Act. Compensation is only payable to the extent that it is provided for under Part 1.

Death Benefits

Where a worker has died as a result of a work-related injury, the provisions of Part 1 provide for compensation to the worker's dependents under sections 28 to 35 of the Act.

The death benefits provided under the Act are: (1) an immediate payment of $5,000 to the estate and costs of transporting the body; (2) spousal benefits in the form of a lump sum payment of $45,000 less 2% for each year the worker was over 45 at the time of death and monthly payments equal to 90% of the worker's net average earnings before the accident; and (3) a fixed monthly payment for other dependents such as children. In this case there is no entitlement to the latter payments as the worker's adult children do not qualify as dependents under the Act.

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

Compensation to dependents of deceased workers

28(1) Where an accident results in the death of a worker, compensation is payable to the worker's dependents in accordance with sections 29 to 35.

Compensation and costs payable on death of a worker
28(2) Where an accident results in the death of a worker, the board shall pay to the estate of the worker or to such person as the board may determine, $5,000. and such part of the expenses as the board may approve in respect of transporting the body from the place of death to the worker's usual place of residence, where the worker dies

(a) in the province, away from his or her usual place of residence; or

(b) outside the province, and his or her usual place of residence is in the province.

Compensation payable to dependents
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,

(i) subject to subsections (2) and (3), a lump sum of $45,000., and

(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); …

Lump sum reduced for worker over 45 years
29(2) The lump sum payable under subclause 1(a)(i) shall be reduced by 2% for each year of age the worker is over 45 years of age at the time of the worker's death but, subject to subsection (3), the payment shall not be less than $27,500.

Pursuant to subsection 28(2), the Appellant received an immediate payment of $5,880 representing the full amount to which she was entitled together with an automatic adjustment based on an indexing factor applied in accordance with sections 44 and 47 of the Act. The Panel does not have authority to increase this amount, notwithstanding the funeral or other expenses that the Appellant may have incurred.

The Appellant received the amount of $32,340 calculated in accordance with subsections 29(1)(a)(i) and 29(2) of the Act. There is no authority provided in the Act to allow the Panel to increase this award.

The Panel further considered whether the Appellant was entitled to receive monthly payments based on the worker's net average earnings before the accident under subsection 29(1)(a)(ii) of the Act. The Review Office took the position that as the worker had retired, there were no net average earnings "at the time of his WCB claim". While the Panel has reached the conclusion that the Appellant is not entitled to monthly payments under this section, we note that the applicable time of the accident is earlier than the time that the WCB claim was filed in 2003.

Subsection 1(1) defines "accident" to include occupational disease. In the case of an occupational disease such as asbestosis, it is difficult to determine the date the accident occurred due to lengthy latency periods. For this reason, the Act provides for a deemed date of accident for occupational diseases as the day on which the impairment or loss of earnings began. Subsection 1(12) states as follows:

Deemed date of accident re occupational disease
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.

As the worker in this case was retired, he did not experience any loss of earnings and the deemed accident date will be the date the impairment began. The Act defines "impairment" in subsection 1(1) as follows:

"impairment" means a permanent physical or functional abnormality or loss, including disfigurement, that results from an accident;

The medical evidence on file indicated that the worker was first diagnosed with lung cancer following his surgery on October 22, 2001. According to the file, the WCB administrator referred to the date of October 22, 2001 as the date of accident. The Panel is satisfied that for the purpose of determining the deemed date of accident, the first date of diagnosis, being October 22, 2001, is the date that should apply.

The next issue to consider is whether the worker had any net average earnings before October 22, 2001. Subsection 45(1) of the Act provides for the calculation of average earnings and states as follows:

Calculation of average earnings
45(1) The board shall calculate a worker's average earnings before the accident on such income from employment and employment insurance benefits, and over such period of time, as the board considers fair and just, but the amount of average earnings shall not exceed the maximum annual earnings established under section 46.

It is clear from the wording of subsection 45(1) that average earnings before the accident refer only to income from employment and employment insurance benefits. As the worker in this case had retired 7 years prior to the deemed accident date, he did not have any earned income from employment upon which to calculate the monthly payments. Accordingly, the Panel concludes that the Appellant is not entitled to receive any additional death benefits under sections 28 or 29 of the Act.

Medical Testing in the United States

The Appellant is requesting reimbursement for costs associated with obtaining a CT scan in the United States. In considering claims for benefits, it is important to note that there is no general principle in the Act to indemnify workers for all losses and expenses resulting from a work-related accident. In addition to death benefits referred to above, compensation is payable pursuant to section 37 of the Act for: (1) medical aid; (2) an award for any permanent impairment; and (3) wage loss benefits.

Subsection 27(1) of the Act refers to the jurisdiction of the WCB to provide medical aid as follows:

Provision of medical aid
27(1) The board may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident.

The Act defines "medical aid" in subsection 1(1) as follows:

"medical aid" includes surgical and dental aid, hospital and nursing services, chiropractic, x-ray and other treatment, drugs, dressings, appliances, apparatuses, transportation and other goods and services authorized by the board;

While subsection 27(1) specifies that medical coverage must be considered necessary by the board, subsection 27(10) further provides that medical aid is always subject to the control and supervision of the board. Subsection 27(10) states:

Medical aid to be under supervision of board
27(10) Medical aid furnished or provided under any of the preceding subsections of this section shall at all times be subject to the supervision and control of the board; and the board may contract the doctors, nurses, hospitals, and other institutions, for any medical aid required, and agree on a scale of fees or remuneration for any such medical aid.

In addition to the legislation, the Appeal Commission is bound by policies made by the WCB Board of Directors. WCB Policy 42.20.20 specifically addresses out-of-province referrals for clinical examinations and states that "referral of a claimant to out-of-province healthcare consultants and/or clinics may be authorized by the Workers Compensation Board, upon request from a referring practitioner." The administrative guidelines also indicate that generally, the WCB will not authorize out-of-province referrals when the same procedure is available in Manitoba and that all such referrals must be pre-approved by the WCB.

In this case, there was no consultation with the WCB prior to the referral for a CT scan outside the province. In fact, a claim had not been filed by the worker or his family until 2003, well after the CT scan had been done. As the same service was available in Manitoba, the WCB was not provided with an opportunity to address the waiting period that may have existed in 2001. The Panel is bound by the provisions of the Act, which mandate that medical aid be provided under the control and supervision of the board, as
well as the WCB policy respecting services provided out-of-province. As no request was made to the WCB by the worker's physician for the out-of-province procedure, the costs associated with this procedure are not compensable.

Expenses Associated with Property in Arizona

The Appellant has requested reimbursement for rental payments on their mobile home in Arizona and the travel costs incurred to sell the property and retrieve their belongings after the death of her husband.

The provision allowing the board to provide medical aid in subsection 27(1) is restricted to medical aid that is "necessary to cure and provide relief from an injury resulting from an accident". The rental payments on the couple's vacation property and other costs associated with traveling to Arizona to sell the property do not fall within the meaning of medical aid in subsection 27(1) as they are not related to providing treatment or relief from the worker's injury. The Act does not provide for compensation for these types of economic losses and, therefore, the Appellant is not entitled to reimbursement for these expenses.

Conclusion

For all of the above reasons, the Panel hereby dismisses the appeal in this matter.

Panel Members

M. Thow, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

M. Thow - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 15th day of December, 2004