Decision #114/07 - Type: Workers Compensation

Preamble

This appeal deals with the impact of the worker’s retirement upon his eligibility for wage loss benefits.

The worker was diagnosed with bilateral carpal tunnel syndrome (CTS). He applied to the Workers Compensation Board (WCB) and his claim was accepted. However the WCB found that the worker was not entitled to receive wage loss benefits due to his retirement from his employment. The WCB found that the worker did not have a loss of earning capacity. The worker appealed to Review Office which upheld the WCB decision. The worker then appealed to the Appeal Commission. A file review was held on July 31, 2007 at the request of legal counsel, acting on behalf of the worker.

Issue

Whether or not the worker is entitled to wage loss benefits.

Decision

That the worker is not entitled to wage loss benefits.

Decision: Unanimous

Background

In June 2005, the worker filed a claim with the WCB for bilateral carpal tunnel syndrome (CTS) which he related to his employment activities as an aircraft maintenance engineer. He described his injury to the WCB as follows:

“I started with [employer] in 1972 as a maintenance mechanic. My position requires the use of power, air and hand tools. Symptoms of carpal tunnel syndrome began in the early 1990’s. My symptoms started with numb aching fingers that wake me after a few hours of sleep. Gradually the condition has progressed t (sic) aching arms and sore elbows through the day. I have requested early retirement and subsequently resigned my position as of January 16th, 2006.”

Medical information on file confirmed the diagnosis of bilateral CTS and right CTS decompression surgery was carried out on April 10, 2006. The WCB accepted the worker’s claim for bilateral CTS but did not pay wage loss benefits related to his recovery period following surgery. In a letter to the worker dated June 1, 2006, the case manager stated:

“The evidence in your particular situation supports that you voluntarily retired at the age of 57 and accepted a retirement pension from the federal government. Since your retirement you have not worked elsewhere therefore there is no demonstration of an ongoing commitment to the labour force.

In my opinion you are not sustaining a loss of earning capacity as a result of your compensable injury since you are still receiving your regular monthly pension and you are not loosing (sic) income from other employment.

I have attached to this letter WCB policy 44.60.20.01 Date of Retirement for your review.”

On June 28, 2006, the worker appealed the above decision to Review Office. He stated that his decision to retire early was influenced by night time pain and suffering caused by CTS. He said he attempted to rescind his application for retirement as suggested by the WCB but his request was denied. He stated that since departing with his employer, his net income dropped by approximately $1000.00 per month and that he was presently incapable of employment due to a job related injury. He felt the WCB had an obligation to supplement his income at 90% of net loss of earning capacity.

On July 11, 2006, Review Office contacted the employer’s representative who indicated that the worker’s letter of resignation dated May 19, 2005 stated that he would be retiring effective January 16, 2006 and no reason was given for retiring. He stated the worker worked up to the date of his retirement.

In a July 13, 2006 decision, Review Office confirmed that the worker was not entitled to wage loss benefits. Referenced in the decision were section 37 and 60(2) of The Workers Compensation Act (the WCA) as well as WCB policy 44.60.20.01, Date of Retirement. Review Office found from the evidence that the worker did not retire because of his CTS condition or that he took a $1000.00 a month reduction in his income because of a compensable condition without fully investigating a possible way to offset the loss. It also found that there was no evidence that the worker had planned on remaining in the labour force after retiring from his employer of 32 years. It found the weight of evidence established that the worker never had a loss of earning capacity as a result of his CTS or the treatment thereof. It followed that he had no entitlement to wage loss benefits.

Reasons

Applicable Legislation and Policy

The worker is employed by a federal government agency or department and his claim is therefore adjudicated under the Government Employees Compensation Act (GECA). Under the GECA, an employee who suffers a personal injury by an accident arising out of or in the course of employment is entitled to compensation. Pursuant to subsection 4(2) (a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under the WCA.

The Appeal Commission and its panels are bound by the WCA, regulations and policies of the Board of Directors.

Section 37 of the WCA provides that where a worker sustains a loss of earning capacity, wage loss compensation is payable. Subsection 39(2) of the WCA provides that wage loss benefits are payable until such a time as the worker’s loss of earning capacity ends, as determined by the WCB. Subsection 60(2) (e) of the WCA provides that the WCB has exclusive jurisdiction to determine the loss of earning capacity resulting from an accident.

The WCB Board of Directors made WCB Policy 44.60.20.01, which provides the WCB with a set of principles for determining when a worker is retired from the labour force.

The panel is satisfied that the above noted provisions of the WCA and the policy are applicable to cases under the GECA.

Worker’s Position

The worker was represented by legal counsel who provided a written submission on his behalf.

The worker’s counsel noted that, pursuant to section 37 of the WCA, compensation is payable including compensation for wage loss for any loss of earning capacity.

The worker’s counsel reviewed the Review Office decision and submitted that there were many errors in the decision and the interpretation of WCB Policy 44.60.20.01. She noted that:

  • a new review of the worker’s loss of earning capacity was not carried out.
  • the worker had no plans for an early retirement and did not provide documentation stating that he would retire prior to his work-related injury.
  • the worker did not refuse to cooperate in rehabilitation.

The worker’s counsel submitted that the worker did not intend to retire from the workforce until he was injured. He was unable to work because of his work-related injury and was in the process of scheduling surgeries to his hands so that he may return to work. Counsel stated that the worker applied for retirement benefits to support himself while he was awaiting surgeries as the WCB refused to pay him.

The worker’s counsel advised that the worker did not apply for CPP benefits and that this fact should weigh in the worker’s favour with respect to a finding that he did not intend to fully retire from the workforce. Counsel also noted that the typical retirement age for the worker’s job classification is 35 years of service but the worker had only 33 years of service. She also noted that the worker attempted to get his back job and has demonstrated his intention to return to the workforce.

The worker’s counsel disagreed with the Review Office’s findings and concluded that Review Office did not consider most of the evidence before it. Counsel provided a copy of a case from another jurisdiction which she asked the panel to consider.

Analysis

The issue before the panel was whether the worker is entitled to wage loss benefits. For the worker’s appeal to be successful, the panel must find that the worker has a loss of earning capacity which is caused by his workplace injury. The panel was not able to make this determination.

The panel finds, on a balance of probabilities, that the worker voluntarily retired from the workforce and as a result did not sustain a loss of earning capacity as a result of his workplace injury. In arriving at this conclusion, the panel places significant weight upon the following information:

  • the worker advised his employer that he would be retiring in a letter dated May 19, 2005.
  • the worker advised that his retirement date would be January 16, 2006.
  • the worker discussed modified duties with his employer but worked at his regular duties until he retired on January 16, 2006.

The panel notes that file information indicates that the worker’s letter of resignation did not provide a reason for the resignation.

The panel considers that the information supports its findings that the worker did, in fact, retire from his employment. Having done so, the panel finds that the worker did not sustain a loss of earning capacity as a result of his workplace injury.

The worker’s counsel submitted that the worker “…applied for retirement benefits to support himself while he was awaiting surgeries as the WCB refused to pay him wage loss benefits.” This submission is at odds with the facts which are that the worker gave notice of his retirement to his employer in May, before the worker had filed a WCB claim and before the WCB had adjudicated the claim. The worker had already provided his resignation when the WCB determined that he was not entitled to wage loss benefits.

The worker’s counsel also submitted that the worker was unable to work because of this work-related injury. The panel finds that this submission is not consistent with the evidence which shows that the worker worked at his regular duties right up to the date of retirement.

The panel considered WCB Policy 44.60.20.01 and finds that the worker retired effective January 16, 2006. The panel notes that the worker resigned from his employment and is in receipt of a retirement pension. Although the worker attempted to rescind or cancel his resignation, the panel does not find this action to be evidence that he intended to remain in the workforce, rather it appears to be related to his claim for wage loss benefits.

The panel accepts that the worker has sustained a workplace injury which may affect his ability to work. However, the issue before the panel is whether the worker sustained a loss of earning capacity as a result of the workplace injury. Given the fact that the worker retired from his employment there is no loss of earning capacity and the worker is not entitled to wage loss benefits.

The panel notes that the worker’s counsel provided a case from another jurisdiction. The panel does not find this case to be applicable given the difference in facts and legislation.

The appeal is denied.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 22nd day of August, 2007

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