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 established as follows:

a. Where the worker's retirement date is determined with certainty through consultation with the worker and the employer, this shall be the anticipated retirement date. Where this is not possible, the anticipated retirement date will be the earliest of:

i. Age of entitlement to Old Age Security (actual receipt of OAS is not required).

ii. Age of receipt of CPP retirement benefits.

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

a. 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 and was accompanied by his family physician. Although the worker was able to converse in English, English is an additional language for the worker and he did have some difficulties with comprehension. The worker's position was that although he was now over age 65, he still has problems with his knee and would continue to have problems for the rest of his life.

The worker also asked that he be entitled to receive the additional 2% SAC benefit beyond age 65.

Analysis:

In order to determine the worker’s appeal, the panel must interpret the Act and Policy and determine whether there is any provision which would entitle the worker to have his SAC benefits continue beyond age 65. We find that there is no such provision.

The Policy very clearly states that the duration of entitlement to SAC benefits continues only until the worker's anticipated retirement date. Where this date cannot be determined with certainty, the anticipated retirement date is tied, by the wording of the Policy, to the date the worker is entitled to receive Old Age Security or CPP retirement benefits. Under the current laws, that entitlement begins the month after a person reaches age 65. The panel is bound by WCB policy and we therefore have no discretion to extend the worker's regular SAC benefits beyond January 31, 2012, which is the end of the month in which the worker turned age 65. The worker's appeal on this issue is therefore denied.

The panel notes that at the hearing, the worker also asked that he be entitled to receive the 2% additional SAC benefit beyond age 65. This issue has not been previously considered by Review Office and therefore the panel does not have jurisdiction to decide this issue. The panel referred the worker to file material regarding the investigations conducted by the WCB in October 2002 and the case manager's decision dated October 7, 2002 where it was determined that the worker was not eligible for the 2% supplement when he reached age 65. This decision was reviewed and reaffirmed by an adjudicator on February 22, 2012. The decision has not been appealed to Review Office and therefore this right of appeal remains available to the worker. The worker was advised that should he wish to pursue an appeal of this issue, it would be beneficial if he could produce some sort of documentary evidence which would establish that he was contributing to a company pension plan at the time of his injury in August 1975.