Decision #82/11 - Type: Workers Compensation
Preamble
The worker is appealing a decision made by Review Office of the Workers Compensation Board ("WCB") that his loss of earning capacity due to his compensable injury ended as of January 9, 2011, the date he reached the age of 65. A hearing was held May 5, 2011 to consider the matter.Issue
Whether or not the worker is entitled to wage loss benefits after January 9, 2011.Decision
That the worker is not entitled to wage loss benefits after January 9, 2011.Decision: Unanimous
Background
The worker at age 53 sustained multiple injuries in a work related accident on May 20, 1999. His claim for compensation was accepted and the worker was paid various benefits which included wage loss, medical aid and vocational rehabilitation assistance. In April 2003, it was determined by the WCB that the worker would receive full wage loss benefits until he reached the age of 65 as a suitable employment goal for the worker based on his permanent restrictions could not be identified.
In 2010, the WCB advised the worker that his wage loss benefits would end on January 10, 2011 when he turned the age of 65. On January 10, 2011, the worker appealed the decision to Review Office.
On February 9, 2011, Review Office determined that there was no entitlement to wage loss benefits after January 9, 2011. Review Office noted that when the worker reached the age of 65, his loss of earning capacity due to the compensable injury ended and no wage loss benefits were payable based on subsection 39(2) of The Workers Compensation Act (the "Act") as it was in effect in 1999. It also found that subsection 39(3) of the Act did not apply to the worker as he was under the age of 63 at the time of his workplace accident. Review Office noted that the worker's birth date was January 10, 1946 and he turned the age of 65 on January 10, 2011. The worker therefore was not entitled to wage loss benefits after January 9, 2011. There was no legislation that would allow for the payment of wage loss benefits for the worker after the age of 65. On March 8, 2011, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Reasons
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. Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident.
Subsection 39(2) of the Act provides as follows:
Duration of wage loss benefits
39(2) Subject to subsection (3), wage loss benefits are payable until
(a) the loss of earning capacity ends, as determined by the board; or
(b) the worker attains the age of 65 years.
Worker's Position:
The worker appeared at the hearing accompanied by a friend who acted as his advocate. The friend also assisted with language barriers as the worker's ability to communicate in English was limited. It was submitted that the worker was an excellent worker before the accident and was an athlete who was in excellent shape. Had he not been so fit, the accident may well have required the worker to use a wheelchair for the rest of his life. Since the accident, his life had been destroyed, as had his ability to earn. It was submitted that since January 2011 when his benefits had ended, the worker and his wife did not have enough funds coming in for them live. The worker requested that the WCB pay him an income supplement to help him to meet his expenses.
Analysis:
The issue before the panel is whether or not the worker is entitled to wage loss benefits after January 9, 2011. The date January 9, 2011 is important because that was the last day before the worker reached age 65. In order for the worker's appeal to succeed, the panel must find some authority in the Act or WCB policies which would entitle the worker to further benefits beyond that date. Unfortunately, we were unable to so find.
The Appeal Commission and its panels are bound by the Act and the policies of the Board of Directors. Subsection 39(2)(b) clearly states that wage loss benefits are payable only until age 65. Subsection 39(3) allows for an exception to the rule set out in subsection 39(2)(b), but the worker does not qualify for this exception as it is only available to workers who are age 63 or older at the time of commencement of loss of earning capacity. In this case, the worker has been unable to return to the workforce since he suffered the injury at age 53.
The panel is unaware of any other exceptions contained in the Act or the WCB policies which could permit wage loss benefits to be continued to be paid to the worker after this date. The panel is therefore unable to allow the appeal. The worker's appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 22nd day of June, 2011