Decision #43/25 - Type: Workers Compensation
Preamble
The worker appealed from the Workers Compensation Board ("WCB") decision that they are not entitled to wage loss benefits after May 18, 2024. A hearing took place by videoconference on May 13, 2025 to consider the appeal.
Issue
Whether or not the worker is entitled to wage loss benefits after May 18, 2024.
Decision
The worker is not entitled to wage loss benefits after May 18, 2024.
Background
The WCB accepted the worker’s claim for a psychological injury arising out of an accident at work on June 13, 2009. In December 2013, the WCB established permanent restrictions such that the worker could not return to their pre-accident job duties and referred them to vocational rehabilitation services. On September 15, 2014, the WCB advised the worker by letter that they were deemed unemployable and would receive long-term wage loss benefits until May 18, 2024, when they reached 65 years of age, or until they no longer had a loss of earning capacity arising out of the workplace accident. The WCB continued to provide medical aid related to the compensable injury.
On February 22, 2024, the WCB advised the worker by letter that it would pay wage loss benefits to May 18, 2024, the day before the worker’s 65th birthday, and after that date, the WCB would only be responsible for medical costs related to the compensable injury.
On July 30, 2024, the worker requested Review Office reconsider the WCB's decision on the basis that they intended to work beyond age 65. On August 19, 2024, Review Office determined the worker was not entitled to wage loss benefits after May 18, 2024 based on the provisions of The Workers Compensation Act (the “Act”).
The worker appealed the Review Office decision to the Appeal Commission on January 29, 2025 and a hearing took place.
Reasons
Applicable Legislation and Policy
At the time of the accident, the worker was employed by a federal government agency or department and therefore this claim is adjudicated under the provisions of The Government Employees Compensation Act (the "GECA"). Section 4(1) of the GECA provides that an employee is entitled to compensation if they sustain personal injury by an accident arising out of and in the course of their employment. Section 4(2)(a) of the GECA provides that a federal government employee in Manitoba receives compensation at the same rate and under the same conditions as a worker who is covered under the Act.
The Appeal Commission and its panels are bound by the provisions of the Act, regulations under the Act and the policies established by the WCB's Board of Directors.
A worker is entitled to compensation under s 4(1) of the Act when it is established that they sustained personal injury as a result of an accident at work. Section 4(2) provides that a worker injured in an accident is entitled to wage loss benefits for their loss of earning capacity resulting from the accident. When a worker has sustained a loss of earning capacity or an impairment, or requires medical aid, compensation is payable under s 37 of the Act. Section 39(2) of the Act sets out that wage loss benefits are payable until the worker's loss of earning capacity ends, or the worker attains the age of 65 years.
Worker’s Position
The worker was self-represented in the appeal and relied upon the written submission to the panel provided in advance of the appeal as well as an oral submission in the hearing.
The worker’s position is that the provision of the Act that terminates payment of wage loss benefits when a worker reaches the age of 65 years is unfair and discriminatory on the basis of age. The worker indicated that had they not sustained injury from a workplace accident, they would have continued to work beyond that age, and they should not be penalized on the basis of their age. For these reasons, the worker submits that the panel should grant the appeal.
Employer’s Position
The employer was represented in the appeal by an advocate who provided a written submission in advance of the hearing, but did not participate in the hearing.
The employer’s position is that by operation of the Act, the worker is not entitled to wage loss benefits after they reach the age of 65. Therefore, the employer submits the worker’s appeal should be denied.
Analysis
The worker’s appeal relates to the termination of their wage loss benefits as of the day before their 65th birthday. For the appeal to succeed the panel would have to determine that the worker is entitled to benefits beyond that date. We are not able to make such a finding and therefore the worker’s appeal is denied.
The worker was a federal employee at the time of their injury and as such, the provisions of the GECA apply. That legislation sets out that a federal government employee in Manitoba receives compensation at the same rate and under the same conditions as a worker who is covered under the provincial legislation. As such, the provisions of the Act govern the conditions under which compensation is payable to the worker.
The provisions of the Act plainly set out that wage loss benefits are payable so long as the loss of earning capacity continues, or until the injured worker reaches 65 years of age. While the Act provides an exception to this general rule where a worker is injured after the age of 61 years, that exception is not applicable in the present case where the worker was, at the time of the compensable accident, 50 years old. As noted above, the panel is bound to apply the provisions of the Act in its decision-making.
The panel also noted that the WCB advised the worker in 2014 that their wage loss benefits would terminate when they reached the age of 65 years. The evidence confirms that the worker reached the age of 65 on May 19, 2024.
Based on the evidence, and on the standard of a balance of probabilities, we are satisfied that the worker is not entitled to further wage loss benefits beyond May 18, 2024. The worker’s appeal is denied.
Panel Members
K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 16th day of May, 2025