Decision #159/08 - Type: Workers Compensation

Preamble

The worker has an accepted claim with the Workers Compensation Board (WCB) for a left knee injury which occurred on July 9, 1975. In February 2008, the worker was advised that his wage loss benefits would end effective June 12, 2008 as he was turning 65 years of age on June 13, 2008. The decision to end wage loss benefits was confirmed by Review Office on July 14, 2008. The worker disagreed with the decision and an appeal was filed with the Appeal Commission through the Worker Advisor Office. A file review was held on November 3, 2008 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits beyond June 12, 2008.

Decision

That the worker is not entitled to wage loss benefits beyond June 12, 2008.

Decision: Unanimous

Background

As noted in the preamble, the worker was advised by primary adjudication that his wage loss benefits would end on June 13, 2008 as this was the date that he was turning age 65.

On June 10, 2008, a worker advisor asked Review Office to reconsider the case manager’s decision to cease benefits on June 12, 2008. The worker advisor noted that the worker was told by his WCB case manager to apply for his Canada and Old Age Pensions. Meanwhile, Service Canada informed the worker that his pensions would not be effective until July 30, 2008 and that they would not pay him retroactive to June 14, 2008. This would result in a six week loss of earning capacity for the worker.

As part of her submission, the worker advisor referred to WCB policy 44.60.20, Date of Retirement. She noted that the worker did not voluntarily retire or withdraw from the labour force and did not inform the WCB of a retirement date. She stated that the worker’s claim is pre-1992 and that subsection 32(1.1), Special Additional Compensation, compensation is payable for a worker’s lifetime rather than to age 65. Therefore, the worker was entitled to payment of wage loss benefits beyond June 12, 2008.

In a decision dated July 14, 2008, it was confirmed by Review Office that the worker was not entitled to wage loss beyond June 12, 2008. Review Office indicated that the section of the policy regarding voluntary retirement or withdrawing from the labour force only applied when the WCB was considering to end wage loss benefits prior to a worker turning 65 years of age. This was not the case for this claim. It noted that the case manager applied the section of the policy which indicates a worker’s date of retirement will generally be considered to be the date the worker reached age 65. Review Office noted that as it has not always been written into legislation, the WCB has been consistent in determining that a worker is considered to have retired at age 65 or, in cases where the worker is 63 years old or older when the workplace injury occurs, two years after the loss of earning capacity begins. Review Office found that wage loss benefits must be authorized according to legislation and WCB policy and cannot be authorized based on the effective date of a pension from another source such as Canada Pension Plan or Old Age Security.

On August 6, 2008, the worker advisor appealed Review Office’s decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation

The Appeal Commission and this panel are bound by The Workers Compensation Act (the “Act”) and policies of the WCB’s Board of Directors.

This claim arose in 1975 and is governed, primarily, by the legislation in effect on the date of accident. The worker is seeking wage loss benefits. In 1975, wage loss benefits were known as total temporary disability (TTD) benefits and were paid when a worker suffered a loss of earnings due to disability. Subsection 35(1) provided that TTD compensation was payable during the continuance of the temporary total disability. The Act did not specify that TTD benefits were payable for the worker’s lifetime.

WCB Policy 44.60.20.01, Date of Retirement, provides that “Generally a worker’s date of retirement will be considered to be the date when the worker reaches age 65, or where the worker is age 63 or over at the date of the accident, two years after the date of the accident.”

Worker’s Position

The worker was represented by a worker advisor who made a written submission on behalf of the worker.

The worker’s representative submitted that the worker had a loss of earning capacity after June 12, 2008 and is entitled to ongoing benefits. The representative noted that due to the worker’s severe knee condition he is not capable of returning to his trade. As well, he did not become eligible for Canada Pension or Old Age Pension until July 30, 2008, putting him in a loss of earning capacity for that period. The representative submitted that because the worker’s claim is pre-1992, Subsection 32(1) of the pre-1992 Act applies. This section provides that permanent partial disability compensation is payable for a worker’s lifetime.

Analysis

The issue before the panel is whether the worker is entitled to wage loss benefits beyond June 12, 2008.

In this case, the worker initially injured his left knee in 1975. He received TTD benefits until late 1977 for the period that he was considered disabled. In 2003 he had further difficulties with his left knee and TTD benefits were reinstated on November 7, 2003. File information shows that he was then placed on Vocational Rehabilitation benefits on January 2, 2004. These benefits were continued until April, 2004 when he was again placed on TTD benefits which were continued until June 2008 when the worker reached 65 years of age.

The worker’s representative argued that subsection 32(1) of the Act applies to this case and as a result the worker is entitled to continue to receive compensation benefits. Subsection 32(1) provides that permanent partial disability(PPD) compensation is payable for the lifetime of the worker. The panel finds that this section applies only to permanent partial disability awards and not to TTD benefits. Accordingly, this section of the Act does not apply to the “wage loss” or TTD compensation benefits the worker was receiving.

The worker’s representative also argued that the worker continues have a loss of earning capacity due to the accident and is entitled to ongoing wage loss benefits.

The Board of Directors made WCB Policy 44.60.20.01, Date of Retirement. This policy was made effective for all accidents prior to January 1, 2006 and is applicable to this case. It provides that “Generally a worker’s date of retirement will be considered to be the date when the worker reaches age 65, or where the worker is age 63 or over at the date of the accident, two years after the date of the accident.”

The WCB pays TTD benefits to workers under the pre-1992 Act on the same basis it pays wage loss benefits to workers injured after the implementation of the 1992 Act. In other words, TTD benefits are payable while the worker suffers from a loss of earning capacity due to the compensable injury. Where the worker retires or is of retirement age (age 65), the loss of earning capacity due to the compensable injury is extinguished and no wage loss benefits are payable. Applying WCB policy 44.60.20.01 and to this case, the worker is considered to have retired when he reached age 65, and no further wage loss (TTD) benefits are payable.

The worker’s appeal is denied.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 11th day of December, 2008

Back