The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel review was held on June 11, 1999, at the request of the claimant.

Issue

Whether the claimant should be allowed to commute all or part of the permanent partial impairment she received in respect to her work related accident in February, 1991.

Decision

That the claimant not be allowed to commute all or part of the permanent partial impairment she received in respect to her work related accident in February, 1991.

Background

The claimant sustained a compensable injury to her cervical spine on February 12, 1991, while performing the duties of a cake decorator. As a result of the injury, the claimant is presently in receipt of special additional compensation (SAC) benefits and a permanent partial impairment award from the Workers Compensation Board (WCB).

On October 15, 1998, the claimant requested the remainder of her pension award in a lump sum payment to purchase a condominium. In a memo to file dated November 23, 1998, a WCB case manager documented that she spoke with the claimant by phone and the following information was noted:

• the claimant had requested and was granted $20,000.00 as a partial payment of her LSS (lump sum settlement) in February 1998 . At that time it was noted by the claimant's vocational rehabilitation consultant that the monies were required to invest in an RRSP, to place a down payment on a condominium and to pay back a financial debt to relatives as a result of her trip to Italy. When the claimant was questioned as to what the $20,000.00 was used for she replied that she paid bills as a result of her trip to Italy, that she purchased a new TV and couch and that she paid off other bills.

The case was subsequently referred to the WCB's Payment Department to calculate the income level the claimant would be at if her request for a pay out was granted. It was learned that the claimant would be left with a monthly income of only $991.57.

On January 26, 1999, the claimant was notified that her request for a pay out of her pension award would not be granted as it would create undue financial hardship. On February 1, 1999, the claimant appealed this decision to the Review Office.

On February 12, 1999, the Review Office determined that the claimant should not have been allowed to commute all or part of the permanent impairment pension she received in respect of her work-related accident in February 1991. The Review Office stated that the claimant's request did not meet the requirements of WCB Policy 44.100.10 as the information showed the following:

-the claimant's loss of earning capacity resulting from this accident was greater than 10%; and

-the claimant was in receipt of special additional compensation; and

-the full commutation amount would exceed $25,000.00.

On March 4, 1999, the claimant requested $5,000.00 as a commutation of her pension. On March 12, 1999, the Review Office denied the request stating it could find no reason to change its earlier decision.

On March 23, 1999, the claimant appealed the Review Office's decisions and a non-oral file review was held.

Reasons

The issue in this appeal is whether the claimant should be allowed to commute all or part of the permanent partial impairment she received in respect of her work related accident in February, 1991.

The Panel notes that in February 1998, the claimant requested and received $20,000 as partial commutation of her permanent impairment award. The request was granted so the claimant could:

a) invest in RRSP's for her retirement,
b) place a down payment on a condominium, and
c) repay a $4,000 debt to relatives.

The partial commutation reduced her monthly award from $328.67 to $208.19 per month. In November 1998 the claimant requested a further commutation of her award. The case manager discussed this issue with her, and on November 23, 1998, placed a memo on file recording the essentials of the conversation. It was established that the previous $20,000 commutation had been used instead to pay bills, and purchase furniture.

The claimant now wanted the balance to purchase a condominium valued at approximately $45,000. The case manager pointed out that the remaining pension monies were approximately $43,000. The claimant was also advised that consultation with payment specialists would be undertaken to ensure that taking a total pay out would not leave her in a bind financially.

On January 26, 1999, the claimant was advised by letter that her request was denied. The letter read in part:

"I referred your file to our Payment Department to calculate what income level you would be at had the request for a payout be granted. It appears that you would be left with a monthly income of only $991.57.

Based on the above, I am unable to grant your request for a payout. Your monthly income as noted above is approaching a dangerously low level to sustain yourself. Given this, I believe this would create undue financial hardship."

On February 1, 1999, the claimant requested a payout of $10,000 to cover the costs of a wedding.

On February 12, 1999, the Review Officer refused the request stating:

"Review Office finds that the claimant's request for full or partial commutation of her impairment pension does not meet the requirements of Board Policy No. 44.100.10 ....in that information shows:
• Her loss of earning capacity resulting from this accident is greater than 10%; and
• She is in receipt of special additional compensation; and
• The full commutation amount would exceed $25,000.

Furthermore, Review Office believes that the previous decision in this case outlines compelling arguments against pension commutation....which do not seem unreasonable or inappropriate."

On March 4, 1999, the claimant again requested $5,000.00 for a wedding and because she was flat broke. This request was refused by the Review Office on March 12, 1999.

The Appeal Panel addressed this issue on June 11, 1999. The Panel is of the opinion that full or partial commutation of the pension would leave the claimant with insufficient funds to ensure financial stability in her future. She is considered unemployable and is in receipt of Special Additional Compensation. Her current benefits rate along with her pension award is $1199.76 monthly. The Panel does not find that the criteria in Policy No. 44.100.10 have been met and therefore deny the appeal and agrees with the rationale used by the WCB.

Panel Members

B. Campeau, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

B. Campeau - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 30th day of June, 1999