Decision #69/20 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to further wage loss benefits after October 23, 2019. A hearing was held on April 29, 2020 to consider the worker's appeal.
Whether or not the worker is entitled to further wage loss benefits after October 23, 2019.
That the worker is not entitled to further wage loss benefits after October 23, 2019.
On October 23, 2015, the worker sustained a fracture of his right hip when he slipped and fell at work. He was taken to hospital by ambulance and underwent hip replacement surgery the same day. The worker's claim was accepted by the WCB and payment of wage loss and medical aid benefits started. The worker was 77 years of age at the time of the accident.
On April 28, 2016, the worker's family physician noted the development of psychological symptoms. A psychological injury was subsequently accepted as compensable, and the worker was referred to a psychologist for treatment.
On December 16, 2016, a WCB orthopedic consultant reviewed the worker's file and recommended permanent restrictions of avoiding walking indoors over 15 to 30 minutes with opportunity to rest; avoiding standing indoors over 30 minutes without opportunity to sit briefly; no ladders; no lifting/carrying weights over 30 pounds; and avoiding prolonged sustained crouching, kneeling and crawling activities. On December 28, 2016, the WCB's Compensation Services advised the employer of the worker's permanent restrictions, and on January 13, 2017, the employer advised that they could not accommodate the worker within those restrictions.
On August 16, 2017, the worker attended a call-in examination with a WCB psychological consultant, who opined that the worker "…appears to have developed earlier an Adjustment Disorder with anxiety/depressed mood, and then a Major Depressive Disorder…" The WCB psychological consultant agreed with the worker's family physician that based on the diagnosis, the worker was unable to return to his previous work, and further treatment was recommended.
On August 24, 2017, Compensation Services advised the worker that they had determined he was medically unemployable. Compensation Services further advised the worker that they would continue to pay him wage loss benefits until October 23, 2019, being 48 months from the date of his workplace accident, in accordance with subsection 39(3) of The Workers Compensation Act (the "Act").
The worker continued to receive wage loss benefits and medical aid treatment related to his compensable injuries. In a telephone conversation with his WCB case manager on June 11, 2019, the case manager reminded the worker that his entitlement to wage loss benefits would be ending in October 2019, but he would continue to be eligible for medical aid benefits which were related to his claim after that.
By letter dated September 6, 2019, the worker requested that the WCB extend his wage loss benefits beyond October 23, 2019. On September 10, 2019, the worker's case manager contacted the worker to discuss his request. The worker indicated at that time that he was certain he would still be working and earning income if it had not been for the workplace accident. The case manager reviewed the August 24, 2017 decision with the worker and provided him with further information on the WCB's appeal process.
On October 2, 2019, the worker requested that Review Office reconsider Compensation Services' decision to end his wage loss benefits. The worker provided a submission outlining his background and experience, together with a copy of his September 6, 2019 letter to his case manager, and restated his belief that he would still be working had his October 23, 2015 workplace accident injury not occurred.
On November 7, 2019, Review Office determined that the worker was not entitled to benefits after October 23, 2019. Review Office acknowledged the worker's assertion that had it not been for the workplace accident, he expected that he would have continued working beyond October 23, 2019, but found that the Act did not allow for further wage loss benefits to be paid beyond that time and that the worker was not entitled to wage loss benefits.
On December 18, 2019, the worker appealed the Review Office decision to the Appeal Commission. An oral hearing was arranged and proceeded by way of teleconference on April 29, 2020.
The Appeal Commission and its panels are bound by the Act, regulations and policies of the WCB's Board of Directors.
Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.
Subsection 39(2) of the Act addresses the duration of wage loss benefits and provides as follows:
Duration of wage loss benefits
39(2) Subject to subsection (3), wage loss benefits are payable until
(a) the loss of earning capacity ends, as determined by the board; or
(b) the worker attains the age of 65 years.
Subsection 39(3) provides an exception with respect to workers who are 61 years of age or older at the time of the accident, and reads as follows:
Exception re workers 61 years of age or older
39(3) Where a worker is 61 years of age or older at the commencement of his or her loss of earning capacity, the board may pay the wage loss benefits for a period of not more than 48 months following the date of the accident.
The worker was self-represented. The worker provided a written submission, as well as an addendum to that submission, in advance of the hearing. The worker made a presentation at the hearing and responded to questions from the panel.
The worker's position was that the WCB's decision to deny him wage loss benefits beyond October 23, 2019 based on his age at the time of his workplace accident was discriminatory, and he should be entitled to wage loss benefits beyond that date.
In his written and oral submissions, the worker described how his traumatic injury had impacted his life. The worker noted that he was in excellent health, both physically and mentally, prior to his injury. In spite of his age, he was able to continue working long beyond the normal age of retirement. The worker submitted that he thoroughly enjoyed his job and was very good at it. His job was very important to him for many reasons, including that it enabled him to stay active, relevant and connected. He said he planned to continue working for the employer or someone else for as long as he was able to do so.
The worker stated that as a consequence of his workplace injury, however, he is no longer able to work. He submitted that the accident robbed him of his dignity, the pride he felt in his work and his feeling of self-worth. It deprived him of his right to earn a living; his employment was terminated; and relationships with fellow employees and customers, and the camaraderie which was so important to him, came to an end.
The worker submitted that subsection 39(3) of the Act targets and discriminates against seniors by denying them continued financial compensation benefits based solely on their age. He submitted that the application of subsection 39(3) in his case discriminated against him, by not giving meaningful consideration to his health prior to his injury and his ability to keep working at his age.
The worker argued that subsection 39(3) and the decision to end financial compensation benefits solely on the basis of age is an obvious form of unequal treatment and social injustice. The restrictive time limitations with respect to seniors fail to take into account that all workers are different and individually unique, mentally and physically, that injuries and recovery times differ, and different compensation benefits are required. He noted that seniors are living longer, healthier and more active lives, and are choosing to retire for many reasons based on their individual lifestyles, circumstances and priorities.
The worker submitted that the reason many seniors are working far beyond the normal retirement age of 65 is because they can. In his case, he felt that he could and would have continued working if it had not been for his October 23, 2015 accident. The worker stated that he believed subsection 39(3) should be flexible, compromising and changeable for the greater good by dealing with each individual on a case by case basis, in order to keep up with the rapidly changing times.
In conclusion, the worker submitted that his appeal should be allowed based on the unique circumstances in his case, and his wage loss benefits continued beyond October 23, 2019.
The employer did not participate in the appeal.
The issue before the panel is whether or not the worker is entitled to further wage loss benefits after October 23, 2019. For the worker's appeal to be successful, the panel must find that the Act permits workers 61 years of age or older at the date of the accident to receive wage loss benefits for a period of more than 48 months following the date of the accident. The panel is unable to make that finding, for the reasons that follow.
The amount and duration of wage loss benefits which are payable to a worker are expressly set out in the Act. Under subsection 39(2) wage loss benefits are payable up until 65 years of age. An exception is provided in subsection 39(3) for workers who are 61 years of age or older when their loss of earning capacity begins. In those circumstances, the WCB is authorized to pay wage loss benefits "for a period of not more than 48 months following the date of the accident."
The evidence shows, and the worker confirmed, that he was 77 years old at the time of the accident. The worker has argued that he should be entitled to wage loss benefits for more than 48 months after the date of his accident based on the particular or unique circumstances of his case. The panel is unable to accept the worker's argument.
Subsection 39(3) specifically authorizes payment of up to a maximum of 48 months of wage loss benefits "following the date of the accident." In the panel's view, the wording of that provision is clear and unambiguous. The panel is unable to identify anything in the Act or WCB policy which would allow wage loss benefits to be extended or continued beyond the 48 months which are stipulated in the Act.
While the worker suggested that he did not believe the outcome in his case was what was intended by the Act or by subsection 39(3), he was unable to point to anything to support that suggestion or anything which would indicate that subsection 39(3) should be applied differently than it was.
Rather, in response to questions from the panel, the worker acknowledged and agreed that the WCB applied subsection 39(3) correctly in this case. The worker confirmed that what he was saying was not that the WCB had applied the section incorrectly, but that the correct application of subsection 39(3) resulted in a discriminatory or unfair action against him. As indicated previously, however, the Appeal Commission and its panels are bound by the provisions of the Act.
The workplace accident occurred on October 23, 2015. The worker acknowledged, and the panel finds, that the 48 month period therefore ended on October 23, 2019. The panel is satisfied that this is the maximum length of time which is authorized under the Act for the payment of wage loss benefits in these circumstances.
In conclusion, the panel acknowledges the worker's ongoing concerns and difficulties, but is unable to find that he is entitled to further wage loss benefits beyond October 23, 2019.
The panel therefore finds that the worker is not entitled to further wage loss benefits after October 23, 2019.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 25th day of June, 2020