The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

In considering appeals, the Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.

The worker is seeking continuation of his wage loss benefits after May 2, 2011. Subsections 39 (2) and (3) of the Act deal with the duration of wage loss benefits. These subsections provide:

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.

Exception re workers 61 years of age or older

39(3) Where a worker is 61 years of age or older at the commencement of his or her loss of earning capacity, the board may pay the wage loss benefits for a period of not more than 48 months following the date of the accident.

As the worker was 61 years of age at the time of the workplace injury, his wage loss benefits are subject to subsection 39(3) of the Act.

Worker's Position

The worker attended the hearing. He told the panel about his injury and his current financial status. He answered questions posed by the panel.

The worker described his accident and resulting back injury. He said that his physician and the WCB medical advisor have said that he is unemployable. He advised that he has not worked since he was injured in 2007 and that he has permanent restrictions. He advised he is receiving a permanent disability pension from CPP.

Since his WCB wage loss benefits ended in May 2011, he and his wife have tried to get by on their CPP disability pensions and his OAS pension. This has created financial difficulties for them. He believes that they will not be able to stay in their home given their modest income and their household expenses.

The worker confirmed that he was over 61 years of age at the time of the accident. He provided the panel with a copy of his driver's license which showed that he was born in June 1945 and that he is currently 66 years old.

The worker advised that had he not been injured he would have continued working until he was 70 or older. He feels it is wrong that he cannot be paid when he is clearly injured and cannot work. In answer to questions the worker provided details of his past employment which was all physical in nature.

Employer's Position

The employer sent in a submission in support of the worker's appeal.

Analysis

The worker is appealing the termination of his wage loss benefits effective May 2, 2011. The date May 2, 2011 is important because this is the conclusion of 48 months after the date of his accident which occurred on May 3, 2007. In order for the worker's appeal to succeed, the panel must find 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.

We find that subsection 39(3) of the Act applies. This subsection of the Act limits the payment of wage loss benefits to workers who are 61 years of age or older to a maximum of 48 months following the accident, regardless of whether the worker's loss of earning capacity resulting from the accident continues.

The evidence on file clearly establishes that the claimant was 61 years of age at the time of the accident. Therefore, in accordance with the Act, we find that the claimant is not entitled to wage loss benefits beyond May 2, 2011. While the panel is sympathetic to the worker in the circumstances, we are bound by the clear wording of subsection 39(3) of the Act. It does not allow for any discretionary wage loss benefits beyond the 48 month period that is mandated in the legislation.