The Appeal CommissionThe Workers Compensation Act of Manitoba

The worker contests the WCB’s Review Office decisions that he has “been overpaid wage loss benefits” and that he is “required to repay the overpayment of benefits to the WCB”.

Section 41(1)(a) of the Act defines the term ‘collateral benefit’ to include amongst other things a policy of disability insurance. Subsections 41(2) and (3) deal with collateral benefit and the determination of earning capacity and the calculation of wage loss benefits respectively.

Counsel for the worker advances the argument that the worker’s policy of insurance maintained with a private insurer is not a policy of disability of insurance within the meaning of section 41(1)(a) of the Act and as such there should be no reduction of benefits. In support of his argument, counsel relies, in part, on a letter of opinion authored by an assistant vice-president of the private insurer wherein he categorically states that the worker’s “policy is, in fact and law, a policy of accident and sickness insurance and not of disability insurance”.

In further support of the argument that the worker’s private insurance covered only accident and sickness and not disability, counsel pointed out that the Act does not define the term “disability insurance”. As such, the rules of statutory interpretation suggest that “the interpretation of a statute can and should be aided by reference to other related statutes”. In the particular case at hand, counsel referred to the Insurance Act of Manitoba which in his view properly classified the worker’s policy as one of accident and sickness insurance and not as a policy of disability insurance. The Insurance Act defines disability insurance, accident insurance and sickness insurance as follows:

“disability insurance” means insurance undertaken by an insurer as part of a contract of life insurance whereby the insurer undertakes to pay insurance money or to provide other benefits in the event that the person whose life is insured becomes disabled as a result of bodily injury or disease.

“accident insurance” means insurance by which the insurer undertakes, otherwise than incidentally to some other class of insurance defined by or under this Act, to pay insurance money in the event of accident to the person or persons insured, but does not include insurance by which the insurer undertakes to pay insurance money both in the event of death by accident and in the event of death from any other cause;

“sickness insurance” means insurance by which the insurer undertakes to pay insurance money in the event of sickness of the person or persons insured, but does not include disability insurance.

Inasmuch as the worker’s policy is not a contract of life insurance the coverage provided to him is not disability insurance as defined in the Insurance Act.

With all due respect to both the worker’s counsel and insurer’s assistant vice-president, we find that the preponderance of evidence does not support the arguments that they have advanced. For instance, a close examination of the face page of the worker’s contract of insurance states as follows:

“THIS POLICY PROVIDES BENEFITS TO THE EXTENT HEREIN PROVIDED FOR DISABILITY, DISMEMBERMENT OR LOSS OF LIFE OR SIGHT RESULTING FROM ACCIDENTAL BODILY INJURY AND IS RENEWABLE AS STATED IN THE POLICY CONTINUANCE PROVISION.” (Emphasis ours)

On page 7 under the policy’s definition section, “INJURY, means bodily injury caused by an Accident… . TOTAL DISABILITY, means that as a result of Injury the insured…is unable to perform any of the important daily duties pertaining to his occupation or profession… . PARTIAL DISABILITY, means that as a result of injury, the Insured…sustains loss of salary or business income due to his inability to perform one or more important daily duties of his occupation or profession.”

The above definitions are not dissimilar to basic corresponding concepts under the Act. For instance accident means “any event arising out of, and in the course of, employment, and as a result of which a worker is injured.” In addition, the Act further provides for the payment of wage loss benefits to a worker where an injury to that worker results in a total and/or partial loss of earning capacity i.e., disability.

There is no escaping the fact that the payment of benefits by both the WCB and the private insurer were triggered by the same singular work related accident. Clearly there would have been no involvement on the part of the WCB had the worker not been injured while in the course of his employment. The specific intent of section 41 of the Act is to prevent the duplication of benefits from another source for the same injury.