2010 CanLII 96410

WORKPLACE SAFETY AND INSURANCE BOARD

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER: 20100198

OBJECTION BY: Employer

PARTICIPANTS: Employer, Employer’s representative, Worker

HEARING LOCATION: N/A

ISSUE

The employer objects to the allowance of loss of earnings (LOE) benefits from March 30, 2010 as the worker had retired.

HOW THE ISSUE ARISES

This claim was allowed for a foreign body which had penetrated the worker’s left index finger. The date of injury was December 5, 2008. The worker reported that while working as a Shop Teacher, he accidentally had a metal sliver enter his left index finger. As a result of this occurrence, the worker went on to contract necrotizing fasciitis which resulted in the spread of the condition into his left arm and chest wall. The worker had to have his left index finger amputated through the metacarpal.

Following the initial surgery, the worker had been scheduled for further treatment including skin grafting at various sites.

The Workplace Safety and Insurance Board (WSIB) allowed LOE benefits for the amputation and resulting skin grafting. The worker was off work until December 21, 2009.

The worker was also scheduled for additional surgeries and the WSIB allowed additional LOE benefits from March 30, 2010 and ongoing.

The employer objected to the payment of ongoing LOE benefits from March 30, 2010 as the worker had chosen to retire effective June 30, 2009.

The employer provided a written submission.

AUTHORITY

Workplace Safety and Insurance Act (the Act) Section 43.

ASSESSMENT OF THE EVIDENCE

I note the submission of the employer’s representative dated October 26, 2010 which included a number of attachments and they are;

• A copy of the memorandum signed by the WSIBs Chief Operating Officer and the Vice President of Strategic Communications Policy & Research dated January 18, 2010.
• Decision 884/08 of the Appeals Tribunal.
• Decision 250/09 of the Appeals Tribunal.
• Decision 1586/06 of the Appeals Tribunal.

I have reviewed the analyses in the various decisions and also noted the memorandum of the WSIBs Chief Operating Officer dated January 18, 2010.

The issue is essentially that Section 43 of the Act does not allow for the payment of LOE benefits in the cases where a worker is not earning on the date of injury and had retired.

It is the position of the employer’s representative that as the worker had been retired at the time of the recurrence on March 30, 2010, he should not be entitled to ongoing LOE as per the memorandum from the WSIBs Chief Operating Office and the Appeals Tribunal decisions.

In looking at this issue, I note the following:

• The memorandum of the WSIB Chief Operating Officer dated January18, 2010 does indicate that in order for a worker to be entitled to LOE benefits, they must have a LOE on the date of injury, and the WSIB decision-makers do have the limited discretion to decide whether a LOE exists based on the facts and circumstances of the case when the worker is not earning on the date of injury, but has not necessarily “left” the workforce.
• The thrust of the Appeals Tribunal decisions cited dealt with cases where a worker had developed a disease and the WSIB had paid LOE benefits many years after they had been retired. The primary finding of the Appeals Tribunal decisions is that the worker had not suffered a LOE as a result of the injury in cases where they had been retired at the time they developed their disease.

The essence of the argument is that Section 43 only applies in cases where the worker had developed a disease or condition while still employed. Those individuals whose condition became apparent after retirement, could not receive LOE benefits as they did not suffer a wage loss due to the condition. The LOE was in fact due to the retirement and not the injury.

The decisions of the Appeals Tribunal have relied on the interpretation of Section 43 from the WSIB and the Appeals Tribunal Counsel Office. With respect to the interpretation of Section 43, I note Decision 1581/06, Page 5 and 6, which state the following:

“Ms. Shaw surveyed a number of Appeals Tribunal decisions and submitted it was clear that any estimation of the amount of future LOE is determined as of the time of the accident and not on speculation about the worker’s potential future earnings in a position that the worker might have attained had he or she not been injured. However, she also noted Decisions 1698/00 and 1462/97, which found that LOE is fundamentally an estimation of a worker’s loss of future earnings. She stated that even though the legislation provides that the estimation be based on earnings as of the date of accident, it is nevertheless an estimate of future LOE. Ms. Shaw submitted even on a plain reading of “LOE”, it may be, in some circumstances, entirely appropriate to grant LOE benefits where a worker is retired at the time of diagnosis. However, she stated, the Appeals Tribunal would have to find it, more likely than not, that the worker would have had future earnings if it were not for the occupational disease.

Ms. Shaw offered the following examples:

As a hypothetical example, take a worker who retires at age 55 and is diagnosed with a long latency occupational disease two years later when he is 57. Assume that there is evidence that the worker’s family had depleted its retirement savings to pay for costly medical treatment for their daughter. Assume that the worker had, under these circumstances, intended to return to the workforce to perform his pre-retirement work, but was then unable to do so because of his disabling occupational disease. In these circumstances, it is submitted that the worker has indeed suffered a LOE as a result of his work place injury and is entitled to s.43 benefits because the worker would have been earning, but for the occupational disease. Put another way, his LOE is a result of his injury and not the result of his retirement.

As an example, imagine a different worker who retires at age 65 and has in place generous retirement savings. The worker enjoys retirement and has no plans to ever return to the workforce. He has ample funds and thus, no apparent financial incentive to return to work. At age 90, he is diagnosed with a long latency occupational disease. In this case, it does not appear the worker has suffered any LOE as a result of the injury because there is no evidence that he ever intended to earn again. His LOE is a result of his retirement and not his injury.”

The circumstances of this case are as follows:

• The worker was aged 28 when he started his employment as a teacher with a school board in 1983.
• The worker continued in his occupation until his injury to the finger in December 2008 (the worker was then 54 years old and had 25 years of experience).
• The worker decided to retire from his occupation primarily because of his work-related injury. This is outlined in memo 20 wherein the following is documented:

“Mr. B. Said he will either retire or go back to work, but he has not yet decided. He wants to wait and see how things progress. At this time, he continues to retire easily and does not have the stamina to RTW (return to work).”

• The worker also noted in memo 35 that further surgery was to be considered in November 2009 and he had permanent restrictions as outlined by his specialist. It was also noted that as per the previous discussion with him, he had made the decision to retire from the school board and will not be returning to work in September (2009).
• In memo 46, the worker stated that he used to work at the Beer Store before his injury and was not working at all (this is interpreted to mean that he had given up his job at the Beer Store because of his injury).

In looking at the available evidence, the worker was aged 54 at the time of his injury. He had 25 years of experience as a teacher. It is an unusual circumstance that an individual aged 54 would retire after 25 years in an occupation unless there were other factors that caused the retirement. In this case, the evidence establishes that the worker decided to retire solely because of his compensable injury and the slow progression in his recovery. He stated as much in memo 20. In addition, not only did the worker have to give up his job as a teacher because of his injury, but he also gave up his part time employment at the Beer Store.

The available evidence therefore is that the worker decided to retire because of his compensable injuries.

As outlined by the Appeals Tribunal Counsel’s Office in the analysis described previously, this is a case which fits the scenario outlined by the Appeals Tribunal Counsel Office in the first hypothetical example. The worker had retired early at age 55 at the time he was receiving treatment for his serious compensable condition. He had to give up both his full time and part time employment due to his lack of progress in recovering from the compensable disease. Therefore, the worker suffered a compensable LOE as a result of his workplace injury and is entitled to Section 43 benefits because he would have been earning, but for the occupational injury. I am satisfied that his LOE is a result of his injury and not a result of his retirement.

CONCLUSION

The worker is entitled to LOE for his recurrence beyond March 30, 2010.

The employer representative’s objection is denied.

DATED December 28, 2010

N. Kissoore

Appeals Resolution Officer

Appeals Branch