Decision #10/15 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to further wage loss benefits beyond February 8, 2011 with respect to his compensable claim. A hearing was held on January 21, 2015 to consider the matter.Issue
Whether or not the worker is entitled to wage loss benefits after February 8, 2011.Decision
That the worker is not entitled to wage loss benefits after February 8, 2011.Decision: Unanimous
Background
The worker has anaccepted claim with the WCB for right carpal tunnel syndrome and right cubitaltunnel syndrome arising from a 1992 injury.
On January 26, 2011,the worker advised the WCB that he was retiring from the workforce as of lastFriday and he requested a payout of his retirement annuity. The worker noted that his retirement decisionwas made, in part, due to his declining health.
A WCB case managerspoke with the worker on January 27, 2011 to advise him that if he cashed outhis retirement annuity he would be losing approximately $40,000 for a $12,000retirement annuity which was a poor financial decision. The worker stated that he would think aboutthis and would get back to the WCB.
On February 1, 2011,the worker called his WCB case manager to advise that he decided to cash out hisannuity. The case manager noted: "We spent considerable time discussingthis. I again advised that this was apoor financial decision. He stated he hasgiven it considerable thought and this is what he wants to do."
On February 1, 2011,the worker faxed the WCB a letter confirming that he was requesting a totalannuity payment based on the fact that he was over 55 years old and was retiredfrom the workforce. He understood thatit would terminate any future wage loss benefits and that his WCB case managerhad explained all of his options. On February 10, 2011, the worker was providedwith an annuity pay-out for his long term wage loss benefits which amounted to$13,215.86.
On August 1, 2014,the worker advised the WCB that he had never received the cheque for $13,000 in2011. The WCB case manager advised theworker that according to WCB records, a cheque was issued to him on February 10,2011 and the cheque was cleared on February 11, 2011.
The worker submittedan appeal to Review Office dated August 11, 2014 indicating that he was owedwage loss benefits beyond March 14, 2006. Review Office then called the worker to discuss his appeal. Review Office advised the worker that he hadbeen paid wage loss benefits up to February 8, 2011 and an annuity was paid outon February 10, 2011. As such there wasno appealable issue.
On August 14, 2014,the WCB issued a letter to the worker stating that in February 2011, he hadrequested an annuity pay-out of his long term wage loss benefits and that thiswas issued to him on February 10, 2011 in the amount of $13,215.86.
On August 19, 2014,the worker submitted an appeal to Review Office requesting reconsideration ofthe decision that he was not entitled to wage loss benefits beyond February 8,2011. The worker stated:
Evidence shows that natural justice supersedes any and all WCB policieswhen proper protocol was not used to authenticate the validity of a claimant'srequests dated Jan 26/2011 and February 1/2011. The absence of an adjudicator's signature of his or her supervisorclearly indicates that section 39-2-b of WCB policy that wage loss benefits arestill payable once the annuity has been calculated and dispersed...The Boardstill owes the claimant wage loss, annuity and calculated interest from the Feb10/2011 to October 31/2014 my 65th birthday.
On November 13,2014, Review Office determined that there was no entitlement to wage lossbenefits beyond February 8, 2011. ReviewOffice referred to file evidence to support that the worker was well informedthat his wage loss benefits would be discontinued as a result of requesting andreceiving his retirement annuity payment. Review Office indicated that it does not find evidence to support theworker's position that proper protocol was not followed. Review Office concluded that the workervoluntarily retired from the workforce and there was no longer a loss ofearning capacity as defined in subsection 39(2) of the Act.
On November 27 andDecember 4, 2014, Review Office considered additional information submitted fromthe worker and stated that no change would be made to their decision ofNovember 13, 2014. Based on the worker'srequest, an oral hearing was held at the Appeal Commission to consider whetherhe is entitled to further benefits.
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.
The worker has an accepted claim for right carpal tunnel and right cubital tunnel syndrome. He is seeking wage loss benefits beyond February 8, 2011 on this claim.
The following provisions of the Act are applicable to this appeal:
- Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.
- Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…”
- Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.
- Section 42 of the Act provides for the establishment of an annuity for workers who are in receipt of benefits for the qualifying period which is currently 24 months.
- Subsection 42(7) provides that the WCB may pay a lump sum instead of an annuity.
- Section 36 of the Act deals with the various types of annuities that can be established under the Act.
- Subsection 36 (3) provides that persons eligible for an annuity may obtain independent financial advice.
WCB Policy 44.60.20, Date of Retirement, provides a set of principles for determining when a worker is retired from the labour force.
WCB Policy 44.100.20, Annuities, provides for threshold levels for converting a lump sum into an annuity and criteria for the provision of financial advice paid by the WCB.
Worker's Position
The worker was self-represented. The worker advanced the position that he was mislead into seeking a lump sum payment of his retirement annuity. He also said that he was not provided with independent financial assistance as provided by subsection 36 (3) of the Act.
The worker acknowledged that he did request and receive a lump sum payout of his annuity in February 2011. He also acknowledged that he had signed a letter advising that he was no longer part of the workforce and requested the payout of the annuity.
The worker advanced the position that he was not provided with independent financial advice under the Act and therefore the payment was not properly made. In addition, he alleged that he was misled by the WCB into requesting the payout of the annuity. He said that at the time of his decision he relied upon a WCB document identified as "Wage Loss Calculation Report" dated 12:18 PM, May 21, 2010. This document referred to full wage loss benefits and included calculations on the worker's wage loss rate and indexation of benefits. The worker said that when he requested the payout of his annuity, he expected that his full wage loss as noted on the "Wage Loss Calculation Report" would continue.
The worker asked for payment of full wage loss benefits from February 2011 until he turned 65 years of age, plus compounded interest on the wage loss.
Employer's Position
The employer no longer carries on business in Manitoba.
Analysis
The worker is seeking wage loss benefits beyond February 8, 2011. For the worker's appeal to be successful, the panel must find that the worker continued to sustain a loss of earning capacity as a result of his workplace injury and was entitled to wage loss benefits after this date. The panel was not able to make this finding.
The evidence is clear that in 2011 the worker approached the WCB and requested that his annuity be paid out in a lump sum. To support his request the worker submitted a letter on January 26, 2011 which indicated that:
It is at this time I request a payout of my annuity. I am no longer part of the work force and am retiring as of last Friday. Declining health is in part of the reason.
The worker provided a further letter on February 1, 2011 which stated:
"I am at this time requesting a total annuity payment based on the fact that I am 55 years of age (plus) and I am retired from the workforce. I understand that it will terminate any future wage loss benefits also. I have been explained all of my options by case workers (name). Please process and call me when it is ready at the Compensation office."
The file shows that after much discussion with WCB staff who attempted to dissuade the worker from proceeding with his request, the payment was calculated and paid by cheque to the worker in February 2011.
Approximately 44 months after the cheque was cashed, the worker contacted the WCB and advised that he did not receive the cheque. He subsequently acknowledged his signature on the cheque but questioned how it was transposed onto the cheque. At the hearing, the worker acknowledged that he received the cheque but had forgotten that he received it.
At the hearing, the worker argued that he was not provided with independent financial advice on the annuity pursuant to subsection 36(3) of the Act. In addition he alleged that he was misled by the WCB into requesting the payout of the annuity on the basis of his "Wage Loss Calculation Report" dated 12:18 PM, May 21, 2010. The worker said that when he requested the payout of his annuity, he expected that full wage loss as noted on the "Wage Loss Calculation Report" would continue.
The panel attaches no weight to the evidence provided by the worker at the hearing. The panel notes file information indicates the worker told WCB staff he was retiring from the workplace so he could receive benefits from CPP and also that he would be receiving a large payout from a lawsuit. At the hearing, the worker described the lawsuit in some detail, which accords with the file memo prepared by WCB staff. Accordingly, the panel places greater weight on the documentation on file in those earlier years than the evidence provided at the hearing.
At the hearing, the worker explained that he had to retire and cash in the annuity so he could receive social assistance benefits and CPP benefits. Again, the panel finds this to be consistent with the worker being quite focused on applying for and receiving that annuity in February 2011 and that he was knowledgeable about his reasons for doing so.
While the panel is unclear of the worker's actual motivation for requesting the payout of his annuity, we are satisfied that the WCB acted properly and within the terms of the Act and WCB Policy in processing the worker's request.
The discontinuation of wage loss benefits was properly made in accordance with WCB Policy 44.60.20, Date of Retirement. This policy provides that a worker's date of retirement will generally be considered to be the date the worker reaches age 65 but allows the WCB to use a different date if the evidence supports a different date. In this case, the worker advised the WCB that he was "no longer part of the workforce" and "I am retired from the workforce." The WCB's determination that the worker had retired was appropriate, consistent with the Policy and subsection 39(2) of the Act.
With regards to the worker's concern that he did not receive independent financial assistance, the panel notes that in accordance with the Act and WCB Policy 44.100.20, Annuities, as it existed in February 2011, the worker did not qualify for financial advice on the use of the annuity. However, the panel notes that WCB staff informed the worker about the negative financial ramifications of his request and attempted to dissuade him from proceeding.
Regarding the worker's suggestion that he relied upon the "Wage Loss Calculation Report" in making his decision, the panel finds this argument is simply not credible. At the time of the annuity payout, the evidence firmly establishes the worker was receiving partial wage loss and was fully aware of and understood that his partial wage loss benefit would terminate upon his retirement from the workforce. He was not receiving full wage loss benefits and there is no reasonable evidence to support that he thought he was entitled to full wage loss after advising that he had retired. The report itself is simply an administrative document that calculates the annual indexing of the worker's pre-accident wages in accordance with the provision of the Act that was in force at the time of his 1992 compensable injury. It does not create a new benefit.
Having considering all the evidence on file and the evidence provided at the hearing, the panel finds, on a balance of probabilities, that the worker is not entitled to wage loss benefits beyond February 8, 2011. The panel finds that the worker was retired from the workforce on the date of the payout annuity. The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 29th day of January, 2015