The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by Review Office of theWorkers Compensation Board("WCB") regarding his entitlement to further benefits in respect ofhis permanent partial disability rating and temporary total disability benefitsafter October 12, 2014.  A filereview was held on September 29, 2015 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits in relation to his permanent partial disability rating; and

Whether or not the worker is entitled to further temporary total disability benefits after October 12, 2014.

Decision

That the worker is not entitled to further benefits in relation to his permanent partial disability rating; and

That the worker is not entitled to further temporary total disability benefits after October 12, 2014.

Decision: Unanimous

Background

On December 6, 1983, during the course of his employment, the worker's right hand was caught under a 1440 pound weight. Later that day, the worker underwent reimplantation of the right middle finger, revision and amputation of the right index finger, and repair of the neurovascular bundle and open reduction of the right ring finger. His claim for compensation was accepted by the WCB and benefits were paid to the worker.

The worker returned to light duty work with the employer in August 1984.

On January 3, 1985, the worker was seen at the WCB offices to determine whether or not he was entitled to a permanent partial disability ("PPD") award as a result of the injury to his right hand. Following examination by a WCB medical officer, the worker was assessed with an impairment rating of 6.6% effective the date of accident.

On January 16, 1985, a payment assessor advised the worker that it had been determined that he had incurred a degree of permanent impairment, which was rated at 6.6% of whole body impairment. The payment assessor advised that based on the worker's earnings, this would entitle him to a periodic payment of $103.12, effective August 14, 1984, less any compensation or rehabilitation benefits paid subsequently. The worker appealed the disability rating to the Review Committee. In a decision dated May 30, 1986, the Review Committee concluded that the 6.6% rating adequately reflected the current level of impairment and that there was no basis for increasing the PPD award.

On March 5, 1985, the worker requested a lump sum settlement ("LSS") of his PPD award and on March 18, 1985, the worker received a payment in the amount of $17,756.63.

On August 21, 1985, the worker underwent scar revision surgery to his right hand, to release contractures. In 1988, the worker underwent further surgeries of the extensor tendon of the right ring finger. In November 1989, the worker underwent additional surgery to release scar tissue.

On September 5, 1991, the worker was seen at the WCB offices for a reassessment of the PPD rating in respect of his right hand injuries. Following examination of the worker, the WCB medical advisor assessed the worker's total impairment to be 15.0%.

On December 2, 1991, the worker was advised of an increase in the residual degree of impairment from 6.6% to 15.0%, effective February 13, 1990. Based on the increase in the PPD rating, he was entitled to a periodic payment of $195.46.

In January 1992, the worker requested an LSS of this further PPD award. The worker received a payment in the amount of $31,664.52 representing the 8.4% increase in his PPD rating.

On May 3, 1994, the worker underwent further surgery to remove a cyst from his right index finger.

On May 3, 1995, a WCB medical consultant opined that removal of a cyst would not result in an increase in impairment. On May 25, 1995, the worker was advised that based on review of the most current information, the previous rating of 15% adequately reflected the present degree of impairment due to his injury, and that no increase would be made in his impairment rating at that time.

In late 1995, the worker was laid off by the accident employer, and in 1996, the employer notified the worker that his light duty position was no longer available. The worker elected to take a three year leave of absence to pursue vocational training.

After completing his training, the worker obtained full-time employment. Effective July 19, 1999, the worker began receiving partial wage loss benefits based on his pre-accident gross earnings and post accident earning capacity.

In December 2009, the worker was laid off from his employment for reasons unrelated to his compensable injury. Although he did not return to work thereafter, he continued to receive partial wage loss benefits based on a deemed earning capacity.

In a memorandum to file dated January 11, 2014, it was noted that the worker had recently stated that his compensable injury was getting progressively worse, with more pain and range of movement issues, and that cold weather and change in humidity were really hard on his hand.

On March 13, 2014, the worker was seen at the WCB offices for a further reassessment of his PPD rating. Following examination, the WCB physiotherapy consultant recommended a total rating of 10.00%, broken down as follows:

• Index finger impairment - 5.74%
• Middle finger impairment - 1.34%
• Ring finger impairment - 0.74%
• Cosmetic rating - 1.00%
• Dexterity rating - 1.00%

In a letter dated May 28, 2014, the case manager advised the worker that as a result of his March 13, 2014 assessment, the previous rating of 15% adequately reflected his present degree of impairment due to his December 6, 1983 compensable injury, and that there would be no increase in his impairment rating at that time.

In a further letter dated July 14, 2014, the case manager advised the worker that since he would be turning 65 on October 13, 2014, wage loss benefits would be paid to him until October 12, 2014, inclusive and final. After that, having reached retirement age, he would no longer be eligible to receive wage loss benefits. It was noted that the WCB would continue to be responsible for all medical costs associated with the worker's work-related injury.

On August 15, 2014, the worker wrote to the case manager and asked "for consideration of a lump sum payout", since the worker's weekly benefits would be stopping and "this payment stoppage will greatly affect me financially from October 12, 2014 onward."

On September 2, 2014, the case manager responded to the worker's request as follows:

Unfortunately at this time there is no provision or eligible benefit to forward to you. The only change in payments that may be forwarded as a lump sum payment would be if you were receiving a monthly PPI (sic) benefit...you took the noted lump sum PPI (sic) payment of $31,664.52 in Feb 1992 this negated that possibility.

There is no other provision of eligible coverage that may be paid in the form of a lump sum settlement from the WCB. The noted letter of July 14, 2014 remains accurate and benefits will cease upon your 65th birthday...

By letter dated October 15, 2014, the worker appealed the case manager's decisions regarding his entitlement to wage loss benefits after October 12, 2014 and his request for a lump sum payment to Review Office.

In a decision dated January 8, 2015, Review Office determined that there was no entitlement to further benefits in relation to the worker's PPD rating, and no entitlement to wage loss benefits after October 12, 2014.

On May 8, 2015, the worker appealed Review Office's decision to the Appeal Commission and a file review 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.

As the worker's accident occurred in December 1983, his benefits are provided under the Act as it existed at that time.

Subsections 32(1) and (3) of the Act provided for payment of compensation for permanent partial disability (PPD), and read as follows:

"Compensation for permanent partial disability.

32(1) Where permanent partial disability results from the injury, the board shall allow compensation in periodical payments during the lifetime of the workman sufficient, in the opinion of the board, to compensate for the physical loss occasioned by the disability, but not exceeding seventy-five per cent of his average earnings."

….

"Lump sum settlement.

32(3) Where the impairment of the earning capacity of a workman does not exceed ten per cent of his earning capacity, instead of the weekly payment, the board shall, upon request of the workman, direct that a lump sum calculated to be the equivalent of the weekly payment shall be paid to the workman in settlement of his claim; but the settlement is final only in respect of the condition of the workman attributable to the accident as that condition was known at the time the payment is made."

Subsection 35(1) of the Act deals with compensation for temporary total disability (TTD), and provided as follows:

"Temporary total disability compensation, etc.

35(1) Where a temporary total disability results from the injury, the compensation shall be a periodic payment during the continuance of the temporary total disability equal to 75% of the workman's average earnings; but the compensation shall not be less than $590.00 per month, in which case he shall receive, as monthly compensation, the total amount of his average monthly earnings."

WCB Policy 44.60.20.01, Date of Retirement, is also relevant to the disposition of this appeal. That Policy states that:

"Generally a worker's date of retirement will be considered to be the date when the worker reaches age 65, or, where the worker is age 63 or over at the date of accident, two years after the date of accident."

Worker's Position

The worker's position, as stated in the Appeal of Claims Decision form, is that the Review Office decision should be overturned because he has been "wronged by the WCB and his financial situation needs to be reviewed again." The worker relied on his previous submissions to the case manager and Review Office, where he disagreed with his benefits being terminated because he feels that he is in a negative financial situation at this time. The worker noted that he was permanently laid off and forced to leave his job with the accident employer because of his injury, and to take a lower paying job with less benefits. The worker questioned the calculation of his wage loss benefits, and more specifically, the deduction of $68.91/week from his wage loss benefits, on account of the LSS he had received. He submitted that he had paid back more through LSS deductions from his wage loss benefits than the total amount of the lump sum payments he received. He described his difficulties with daily living, and noted that his disability and limitations did not stop just because he turned 65.

Employer's Position

In response to the worker's appeal, the employer relied upon its submission to Review Office dated November 26, 2014. The employer expressed agreement with Review Office's decision, as correctly summarizing why there is no further benefit entitlement.

Analysis

Issue 1: Whether or not the worker is entitled to further benefits in relation to his permanent partial disability (PPD) rating.

For the worker's appeal on this issue to be successful, the panel must find that the worker is entitled to further benefits in relation to his PPD rating. The panel is not able to make that determination.

The worker received his first PPD award in January 1985, when he was assessed with an impairment rating of 6.6%. He had the option of receiving his PPD as a periodic payment of $103.12 or an LSS of $17,756.63. The worker opted for an LSS.

The worker received a second PPD award in December 1991, when re-assessed with an impairment rating of 15.0%. The worker had the option of receiving the increase in the PPD award, being 8.4%, as a periodic payment of $195.46 or an LSS of $31,664.52. The worker again opted for the LSS.

Both statement payments represented full and final settlement of the worker's claim for his present impairment. In each instance, before receiving the settlement amount, the worker signed a release, which confirmed that he had requested the WCB to settle his claim and acknowledged that payment of the LSS was in settlement of his entitlement for present impairment. The release dated January 27, 1992 stated in part:

"I understand that the acceptance of this amount is in settlement of my claim for present impairment resulting from the aforementioned accident and is the equivalent of the monthly pension to which I would otherwise be entitled."

The worker's PPD rating was reassessed in March 2014. That reassessment indicated that there was no increase in the worker's PPD rating, and therefore no entitlement to further benefits in relation to that rating.

Our review of the notes of the March 2014 reassessment indicates that the WCB physiotherapy consultant considered and applied the correct criteria, in accordance with WCB policy and the Permanent Rating Schedule, in arriving at his calculations and recommendations with respect to the PPD rating.

While the worker had also referred in his submissions to difficulties he has been having with respect to daily living, including pain, loss of strength and sensitivity to cold, there is no provision in the Act or WCB policy for a PPD rating in respect of loss of strength or quality of life or difficulties in performing day to day tasks. The panel cannot consider new criteria outside those listed in WCB policy. As noted earlier, the panel finds that the correct criteria were used in establishing the worker's current PPD rating.

The worker has also challenged the deduction of $68.91 per week relating to LSS payments from his wage loss benefits. He submitted that over time he had paid back more through LSS deductions from his wage loss benefits than the total amount of the lump sum payments he received.

In the Act as it existed in 1983, there is a limit to the amount of compensation which an injured worker might receive. Subsections 32(1) and 35(1) each refer to an amount not exceeding 75% of average earnings. Subsection 32(1), which deals with PPD benefits states "… to compensate for the physical loss occasioned by the disability, but not exceeding seventy-five per cent of his average earnings." Subsection 35(1), dealing with TTD benefits, says that "compensation shall be … equal to 75% of the workman's average earnings…."

A combination of PPD benefits and other disability compensation benefits could therefore not exceed 75% of the worker's average earnings before the accident. In situations where the 75% maximum was exceeded, the PPD award had to be deducted from other disability compensation benefits (including TTD benefits), regardless of whether the PPD award was paid periodically or as an LSS. To adopt any other interpretation would permit a situation where the worker could receive more than 75% of his or her pre-accident earnings, an outcome which was prohibited by the Act.

The worker had an option between receiving a periodic payment for the rest of his life, or a lump sum settlement. He requested lump sum settlements. The fact that he received both of his PPD awards as lump sums does not mean that he could avoid including those amounts in calculating whether or not he was receiving more than 75% of his pre-accident gross earnings. He received the money, albeit all at once, and not periodically, and was therefore accountable for it.

The panel is satisfied that the current value of the worker's PPD and/or LSS payments were appropriately deducted from the worker's wage loss benefits, in accordance with the meaning and intent of the Act. The panel is further satisfied that there is no evidence of anything inappropriate in the manner in which the worker's benefits were calculated and administered by the WCB.

The panel finds that the worker is not entitled to further benefits in relation to his PPD rating.

The worker's appeal of this issue is denied.

Issue 2: Whether or not the worker is entitled to further temporary total disability (TTD) benefits after October 12, 2014.

In order for the appeal on this issue to be successful, the panel must find that the worker was entitled to TTD benefits after October 12, 2014, when he turned 65 years of age. The panel is not able to make that determination.

This issue relates to wage loss benefits. In 1983, wage loss benefits were known as total temporary disability (TTD) benefits and were paid when a worker suffered a loss of earnings due to a compensable injury.

The panel notes that the worker received full wage loss (TTD) benefits until he returned to work in August 1984. He also received wage loss benefits during periods of time while recovering from surgeries or attending medical appointments. In July 1999, following his vocational rehabilitation plan, the worker received partial wage loss benefits based on his post accident earning capacity. The worker continued to receive such benefits until October 13, 2014, when he reached age 65.

Subsection 35(1) provided that TTD compensation is payable during the continuance of the temporary total disability. The Act does not provide that TTD benefits are payable for the worker's lifetime.

The Board of Directors established WCB Policy 44.60.20.01, Date of Retirement to apply to all accidents prior to January 1, 2006, and is applicable in this case. It provides that "Generally a worker's date of retirement will be considered to be the date when the worker reaches age 65..."

TTD benefits are payable while the worker suffers from a loss of earning capacity due to the compensable injury. Where the worker retires or is of retirement age (age 65), the loss of earning capacity due to the compensable injury is extinguished and no wage loss benefits are payable.

The panel notes that file evidence shows the worker established employment following his vocational rehabilitation that ended in December 2009 when the employer suffered a significant downturn in business. In subsequent conversations with the case manager, the worker expressed his commitment to finding other employment within his qualifications. As such, his partial wage loss (TTD) continued, even though he was not successful in acquiring a job.

Applying WCB Policy 44.60.20.01 to this case, the worker was still unemployed in 2014 and was considered to be retired when he reached age 65 on October 12, 2014, and therefore no further TTD benefits are payable under the Act.

Based on the foregoing, the panel finds that the worker is not entitled to further TTD benefits after October 12, 2014.

The worker's appeal of this issue is denied.

Panel Members

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

Recording Secretary, B. Kosc

L. Harrison - Presiding Officer

Signed at Winnipeg this 27th day of November, 2015