The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable legislation:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

For accidents that occurred before January 1, 1992, SAC benefits are payable to workers pursuant to former subsection 40(2) of the Act, which provided as follows:

Special additional compensation

40(2) Where the board is satisfied that an injury in respect of which it has allowed compensation under subsection (1) has occasioned a loss in earning capacity that is proportionately greater than the physical loss on the basis of which the compensation is allowed, it may … increase the compensation allowed under subsection (1) in such amount as it considers fair and just, but the total compensation shall not exceed 75% of the average earnings of the worker.

The Act has since been amended and for accidents that occur after January 1, 1992, SAC awards are no longer granted.

WCB Policy 44.60.30.01 Special Additional Compensation (the “Policy”) deals with administration of wage loss benefits and describes when SAC will be paid, for how long, and in what amount.

Section 2 of the Policy deals with how long SAC will be paid to a worker and provides as follows:

Duration of Entitlement

Where the worker continues to meet entitlement criteria, SAC will continue until the worker’s anticipated retirement date….

Section 4 of the Policy deals with adjustments to SAC and provides as follows:

f. Where the worker’s entitlement to retirement pension has been negatively affected by the accident which prompted the payment of SAC, the WCB will continue SAC after the worker’s retirement date. This SAC will be based upon 2% of the monthly SAC being paid at the time of the retirement date, multiplied by the number of years that SAC was paid.

Worker’s submission:

The worker was self represented at the hearing. She submitted that because she was unable to work over the years, her income was limited and she was unable to save for her retirement. She also did not contribute to her CPP, so therefore her Canada Pension is less than what she would have collected if she was working. Had she been able to keep working, when she retired at age 65, she would have had a decent income from Canada Pension and also from her savings.

In response to specific questions from the panel, the worker advised that there was no pension plan in place with the employer when the accident occurred in 1987 and that she had never contributed to a pension plan with the accident employer.

Employer’s submission:

A representative from the employer appeared at the hearing. The employer’s position was that the WCB Policy 44.60.30.01 was clear and that the worker had no entitlement to further SAC benefits. It was also submitted that even if she had not contributed to a pension plan, she had been receiving up to 90% of her income and she could have put this money into an RRSP.

Analysis:

In order to determine the worker’s appeal, the panel must interpret the Policy, and specifically, the panel must interpret the term “retirement pension” and decide whether the term includes a CPP pension. In order for the appeal to be successful, we would have to find that a CPP pension is included in the term. After considering the terms and the purpose of the Policy as a whole, we find that the preferred interpretation of “retirement pension” is that a CPP pension is excluded from the meaning of this term.

In the panel’s opinion, the term “retirement pension” is meant to refer only to a private pension provided through a worker’s workplace or union and does not include the universal government CPP retirement pension. The reasons why we prefer this interpretation are as follows:

• If the interpretation proposed by the worker were to be accepted, then virtually every worker who received SAC benefits would, on a prima facie basis, be entitled to the extension of SAC benefits after age 65. This could not have been the intention of the Policy, which specifically states in section 2 that SAC is intended to continue to a worker’s anticipated retirement date;
• The panel is of the view that the extension of SAC benefits beyond retirement was meant to be an exceptional circumstance, and not the general rule;
• The interpretation proposed by the worker would require an analysis in each SAC case of a worker’s entitlement to CPP retirement benefits and a determination as to whether or not such benefits were negatively affected by the accident. It would not be sufficient to simply state that since the worker was not working and contributing, the CPP retirement benefits were reduced. Ascertaining the amount of CPP retirement benefits a person is entitled to receive is a complex calculation which may involve consideration of how a prior claim for CPP disability benefits affects the amount of CPP retirement benefits paid. Presumably this analysis would be beyond the expertise of WCB staff, and the WCB would have to enlist the assistance of specialists in CPP entitlement in order to adjudicate all SAC claims. We again do not think that was the intention of the Policy;
• An interpretation which limits the term “retirement pension” to a private pension is consistent with administrative guidelines which were added to version 44.60.30 of the Policy. The administrative guidelines state:

Retirement Pensions

A “registered retirement pension plan” as defined in The Pension Benefits Act of Manitoba or applicable federal pension legislation includes a retirement pension provided through the worker’s employer or union. It does not include a CPP retirement pension or a RRSP pension (paid for by the worker for him or herself).

For the above reasons, we find that the more appropriate interpretation of the Policy is that the term “retirement pension” does not include a CPP retirement pension. As the worker’s evidence was that she did not have a company or other private pension which was negatively affected, it is the panel’s decision that there is no authority under the Policy to continue the worker’s SAC payments after November 30, 2008. The worker’s appeal is denied.