Decision #60/18 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his temporary total disability benefits have been correctly calculated. A file review was held on April 4, 2018 to consider the worker's appeal.
Whether or not the worker's temporary total disability benefits have been correctly calculated.
The worker's temporary total disability benefits have been correctly calculated.
The worker injured his right knee at work on November 24, 1981. His claim was accepted by WCB and the payment of various benefits, including the provision of knee braces, has taken place since that date.
On January 17, 2017, the worker attended an appointment with his family physician who recommended that x-rays and an ultrasound be arranged to assess the worker's right knee. The x-ray conducted on January 18, 2017 reported advanced degenerative change on the right predominantly involving the medial joint compartment. Moderate degenerative change on the left.
The ultrasound on the worker's knee done on January 20, 2017 indicated:
1. Right knee: Small Baker's cyst. Small joint effusion. Focal synovial thickening is noted at the lateral aspect of the knee joint.
2. Left knee: Small joint effusion. Otherwise unremarkable study.
At a follow-up appointment with his family doctor on February 8, 2017, the worker was referred to an orthopedic surgeon for an assessment. On April 11, 2017, the orthopedic surgeon examined the worker and recommended surgery.
The worker was scheduled for and had a "Complex right total knee replacement with correction of deformities" on August 24, 2017. The WCB advised the worker on August 22, 2017 that wage loss benefits on his claim had been accepted and would commence as of the date of his surgery.
On September 20, 2017, the WCB contacted the worker and advised that since the date of his injury occurred prior to 1992, his wage loss benefits would be "…calculated based on 75% of gross with gross insurable maximum of $1,174.19/week. Wage loss for workplace injuries occurring January 1, 1992 and after are based on 90% net sheltered."
The worker disagreed with the WCB decision as he felt that the calculations of his wage loss benefits were based on an outdated Act. He filed a request for reconsideration with the Review Office on September 26, 2017.
Review Office upheld the WCB's decision on November 24, 2017. Review Office acknowledged that the worker made a "reasonable argument for his appeal" but also noted that they were bound by the legislation and the policies of their Board of Directors. Despite his surgery occurring in 2017, the Act is prescriptive and states that his gross earnings must be calculated based on the legislation in force at the time of his workplace accident.
The worker filed an application with the Appeal Commission on December 11, 2017. A file review was held on April 4, 2018.
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the WCB's Board of Directors. The worker's accident occurred in 1981 and accordingly, the Act in effect at the time of the injury is applicable to this appeal.
In 1981, wage loss benefits were calculated based on 75% of gross earnings to a maximum amount. The Act provided:
Temporary total disability compensation
43(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 worker's average earnings; but the compensation shall not be less that $816. per month, except where the average earnings of the worker are less that $816. per month, in which case he shall receive, as monthly compensation, the total amount of his average monthly earnings.
Calculation of average earnings and earning capacity of worker
45 The average earnings and earning capacity of a worker shall be determined with reference to his average earnings and earning capacity at the time of the accident, and may be calculated upon the daily, weekly, or monthly, wages and other regular remuneration which the worker was receiving at the time of the accident, or upon the average yearly earnings of the worker for one or more years prior to the accident, or upon the probable yearly earning capacity of the worker at the time of the accident, as may appear to the board best to represent the actual loss of earnings suffered by the worker by reason of the injury, but not so that his average earnings shall be deemed in any case to exceed the rate of the maximum annual earnings established under section 46.
The worker is appealing the WCB decision regarding the calculation of his temporary total disability benefits.
The worker completed a Worker Appeal of Claims Decision form which was received at the Appeal Commission on December 11, 2017. He submitted that:
I was injured in 1981, WCB Legislation was changed in 1992. Using outdated legislation is discriminatory and has resulted in causing me financial hardship, which is contrary to the purpose of the Historical Compromise. That compromise came into being in order to protect employers from being sued and to ensure no worker would endure financial loss as a result of a workplace injury. The legislation was changed in 1992 in order to better serve employers and employees. Applying outdated legislation has resulted in my earning being less than I would have received if I could have claimed Employment Insurance Benefits.
In a letter to the Review Office, the worker submitted, in part, that:
The calculation of my wages loss benefit was based on an outdated WCB Act. I was injured in 1981 in a mining incident and my right knee ACL was torn. I was not offered, or considered for surgery to repair the ligament. I was instead supplied with a knee brace. The braces was somewhat effective for providing stability while working underground.
I have put up with the pain of my knee and decrease in activity and quality of life for 36 years. Last January my knee deteriorated to the point my new family physician immediately referred me to an Orthopedic Surgeon who was more than willing to replace my knee as it was almost beyond the point where a replacement would be successful.
And now after all these years of putting up with the pain, and limitations caused from a workplace injury, I am being held hostage to an act that was replaced in 1992 (obviously there were parts of the act that were no longer serving the client groups effectively). My benefit is being based on a maximum insurable amount that may have made sense previously but is certainly not applicable to today. I would have been better off financially had I applied for Employment Insurance benefits (which would likely have been denied because WCB is responsible for Workplace Injuries.) The amount of my benefit is causing me to suffer considerable financial loss due to an injury, that had it been repaired when it occurred, would not have cause that financial loss and decrease in my quality of life.
The employer did not participate in the appeal.
The worker was injured in 1981. In 2017, he required surgery arising from his 1981 injury. The worker is appealing the calculation of his wage loss benefits on his recent time loss claim.
As noted previously, in considering this appeal, the panel is bound by the Act. The panel notes the Act was amended in 1992 and a new wage loss scheme introduced. The revised amendments, including the new wage loss scheme, only applied to new cases and not to existing claims. The panel finds that the worker's benefits must be calculated under the Act as it existed at the time of the injury.
As the worker was first injured in 1981, the panel finds that the worker's wage loss must be calculated pursuant to the provisions of the Act in effect in 1981 when the worker was first injured. The worker's wage loss benefits ("temporary total disability" payments as they were then called) must be calculated pursuant to s.43(1), s.45 and s.46 of the Act as it was in 1981.
The panel has reviewed the calculations and finds that the amount paid was correctly calculated in accordance with the appropriate legislation. The panel notes that the worker's average earnings are based on 75% of his gross insurable maximum earnings, calculated as $1,174.19 per week which was the maximum amount pursuant to the provisions of the Act. This resulted in a wage loss rate of $880.64 per week, a sum significantly lower than he currently earns.
The panel notes that the worker's wage loss benefits were lower than they would be if they were calculated under the new provisions of the Act. The panel understands the worker's concern that his wage loss benefits are causing him to suffer considerable financial loss. The panel is not able to calculate the worker's wage loss benefits according to the current legislation in force in Manitoba. The panel is not able to address the worker's concern.
The worker's appeal is dismissed.
A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 8th day of May, 2018