The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was no longer entitled to special additional compensation benefits given that he had reached 65 years of age effective March 2, 2012. A hearing was held on January 23, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to further special additional compensation benefits beyond March 2012.

Decision

That the worker is not entitled to further special additional compensation benefits beyond March 2012.

Decision: Unanimous

Background

The worker has a 1986 compensable claim with the WCB for chronic right lateral epicondylitis and has received various types of services from the WCB which included special additional compensation (SAC) benefits.

In March 2012, the WCB advised the worker that his monthly SAC benefits were ending given that he had reached the age of 65 as of March 2, 2012. The decision was based on WCB policy related to SAC benefits. On June 28, 2013, the worker appealed this decision to Review Office. In a telephone conversation on July 16, 2013, the worker advised the Review Officer that he had a work injury which resulted in significant health difficulties and he did not agree that his monthly payment should stop because he reached 65 years.

In a decision dated September 24, 2013, Review Office confirmed that there was no entitlement to SAC beyond March 2012. Review Office noted that WCB policy very clearly stated that the duration of entitlement to SAC continued only until a worker's anticipated retirement date. There was no discretion to extend the worker's regular SAC benefits beyond March 2012 which was the month in which the worker turned age 65. Review Office also referred to a September 24, 2002 WCB memo which indicated that the worker had not contributed to a company pension plan according to his employer. As the worker did not belong to a registered retirement pension plan, he did not meet the criteria for entitlement to the additional 2% SAC pension supplement.

On October 30, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation and Policy:

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:

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 accompanied by an advocate at the hearing, who also provided translation assistance when required. It was very evident that the worker has faced many challenges in his life and continues to struggle with them. Although the worker referred to frustration with the manner in which his WCB claim has been adjudicated, the worker was reminded that the panel's jurisdiction is limited to the appealed issue regarding entitlement to further SAC benefits beyond March 2012.

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 March 2012. 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 to the date the worker is entitled to receive Old Age Security or receipt of CPP retirement benefits. Under the current laws, that entitlement begins the month after a person reaches age 65. As noted above, the panel is bound to follow WCB policy.

At the hearing, the panel explored whether there was any evidence which could establish that the worker's anticipated retirement date would be other than age 65. Given that the worker sustained his injury when he was in his late 30's, he was unable to identify any specific retirement plans. The panel therefore has no basis for finding that the anticipated retirement date would be anything other than when the worker reached age 65.

The panel also considered whether the worker may be entitled to receive the 2% additional SAC benefit beyond age 65. In order to be eligible for a continued SAC after retirement date, it would have to be established that the worker had an entitlement to a retirement pension at the time of the SAC recommendation which was negatively affected by the accident. The worker's evidence at the hearing was that while at the present time the accident employer does have a company pension plan, it did not have a pension plan in place at the time when he worked for them. This is consistent with the information provided by the employer to the WCB on September 24, 2002 wherein the employer advised that it never had a pension plan for any of its staff. We therefore have no evidentiary basis for finding that the worker is entitled to additional SAC benefits beyond age 65.

In the result, the panel has no choice but to find that the worker is not entitled to further SAC benefits beyond March 2012. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 7th day of February, 2014