Estate of Worker, 2022 CanLII 128920

Decision number:

20230008

ESTATE OF Worker

REPRESENTED by:

estate representative

n/a

HEARD by:

l. diaz, appeals resolution officer

DATED:

NOvember 18, 2022

ISSUE

The worker’s Estate objects to the Adjudicator’s January 13, 2022 decision which denied entitlement to Survivor benefits under two claims.

BACKGROUND

The history of the worker’s claim has been reviewed in several past appeals decision and will therefore not be repeated at length in this decision. Under claim XXXXXXXX, on March 18, 1970, the worker fell approximately 20 feet onto the ground/gravel. They did not lose consciousness and did not sustain any fractures. Entitlement in the claim was accepted for a left hand contusion, a left shoulder contusion and hemiarthrosis, left hip and buttock contusions, and pain in the lower back. A 15% Permanent Disability (PD) benefit was accepted for the diagnosis of left hip arthralgia and osteoarthritis, a 2% PD benefit was accepted for the left wrist, and a 48% PD benefit was accepted for Psychotraumatic Disability for the diagnoses of Major Depressive Disorder, Anxiety Disorder, and Post-Traumatic Stress Disorder (PTSD). The worker’s combined PD benefit was 65% under this claim.

Under claim YYYYYYYY, on September 20, 1977, the worker slipped and fell, injuring their lower back. Entitlement was accepted for mechanical low back pain for which the worker received a 35% PD benefit.

The worker’s combined PD benefits under both claims totalled 100%.

On February 2, 2019, the worker unfortunately passed away. The worker’s Estate is claiming for entitlement to Survivor benefits under the claims.

The worker’s file was referred to an external Occupational Medical Consultant (OMC) for an opinion as to whether the worker’s death could be occupationally related. Dr. Razavi, OMC, provided an opinion on the matter, which is documented in a January 11, 2022 file memo.

Adjudicator’s January 13, 2022 decision

Following review of the OMC opinion, the Adjudicator concluded in a January 13, 2022 decision that the cause of the worker’s death was unrelated to their injuries under the claim. In addition, as the worker’s PD quantum of 100% encompassed two claims, the Adjudicator denied entitlement to Survivor benefits under the claim.

Estate’s position

The Estate’s representative did not dispute that the worker’s cause of death was unrelated to their workplace injuries. Rather, the Estate’s representative referenced Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision 1724/16, which granted the worker Estate’s entitlement to Survivor benefits despite the worker’s 100% pension being awarded over two claims instead of one. As a result, the Estate’s representative contended that the Estate had met the threshold for entitlement to Survivor benefits.

AUTHORITY

Operational Policy Manual Published

20-03-16, Payments to Dependants (Accidents before 1998) January 2, 2018

18-07-08, Payments to Dependants (Accidents before 1998) March 3, 2008

ANALYSIS

I find the worker’s Estate is not entitled to Survivor benefits under the claims. In arriving at this decision, I had regard for the arguments presented, the relevant file information, and the applicable Policies.

The February 2, 2019 Medical Certificate of Death – Form 16, confirms the worker unfortunately passed away on February 2, 2019, with the ‘immediate cause of death’ listed as ‘lower leg cellulitis’ (with the duration listed as ‘months’). This Certificate of Death also confirms that ‘chronic renal failure’ (of ‘years’ duration) was an antecedent cause giving rise to the immediate cause of death, and that ‘alcohol abuse’ (of ‘years’ duration) was another significant condition contributing to the death but not causally related to the immediate cause.

Dr. Razavi, OMC, indicated the following in a January 11, 2022 review: “I am unable to state with any degree of confidence that either (their) skin condition (cellulitis of the lower leg) or chronic renal failure were related to the conditions accepted under both claims”.

Of importance, the Estate’s representative is not claiming that the worker passed away due to their compensable injuries under the claim. Rather, the Estate’s representative is requesting entitlement to Survivor benefits on the basis that the worker’s combined pension under two claims was 100%.

Policy 20-03-16, Payments to Dependants (Accidents before 1998), published January 2, 2018, records the following, in part:

Workers entitled to 100 per cent permanent disability benefits

If a worker with an accident date prior to January 2, 1990 is entitled in one claim to total (100 per cent) permanent disability benefits, and then subsequently dies, a survivor is entitled to the same survivors' benefits as if the worker had died as a result of the work-related injury/disease.

The worker’s representative referenced WSIAT decision 1724/16 which awarded Survivor benefits to the worker’s dependants despite the fact that the worker in that case did not have a 100% pension in one claim. In WSIAT decision 1724/16, the worker had a 48% pension in one claim for an accident occurring in 1975, and a 60% pension for another accident occurring in 1977. Similar to the present claim, in WSIAT decision 1724/16, the worker was in receipt of ILA and PCA benefits.

However, in reviewing WSIAT decision 1724/16 I note that the Vice-Chair referenced Policy 18-07-08, which was in effect at the time of WSIAT decision 1724/16. Policy 18-07-08, Payments to Dependants (Accidents before 1998), published March 3, 2008, which was in effect at the time of the WSIAT decision records the following in part:

Workers entitled to 100 per cent permanent disability benefits

If a worker suffers a severe injury such that the worker is entitled in one claim to total (100 per cent) permanent disability benefits, and then subsequently dies, a survivor is entitled to the same compensation (death) benefits as if the worker had died at the time of the accident.

However, Policy 20-03-16, which is effective January 2, 2018, and which would have been in effect at the time of the worker’s passing, differs slightly, yet significantly, from Policy 18-07-08. Policy 20-03-16 specifically addresses the date of accident to which this policy applies compared to Policy 18-07-08 which does not, and is therefore more prescriptive.

Policy 20-03-16 specifically records “If a worker with an accident date prior to January 2, 1990 (emphasis added)”, which would encompass all accident dates prior to January 2, 1990, including that of the worker in the present claim. As noted above, this policy further records that a Survivor is only entitled to Survivor benefits if a worker has a 100 percent permanent disability benefit in one claim.

In summary, given that the worker does not meet the criteria in Policy 20-03-16 of having a 100% permanent disability benefit in one claim, for accident dates prior to January 2, 1990, I therefore conclude the worker’s Estate does not have entitlement to Survivor benefits in the claim.

CONCLUSION

I conclude the worker’s Estate is not entitled to Survivor benefits in the claim.

The Estate’s objection is therefore denied.

DATED: November 18, 2022

L. Diaz

Appeals Resolution Officer

Appeals Services Division