WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 829/10 I

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 829/10 I BEFORE: T. Mitchinson : Vice-Chair A. Lust : Member Representative of Employers R. W. Briggs : Member Representative of Workers HEARING: April 27, 2010 at Sudbury Oral Post-hearing activity completed on December 3, 2010 DATE OF DECISION: January 20, 2011 NEUTRAL CITATION: 2011 ONWSIAT 155 DECISION(S) UNDER APPEAL: WSIB Decisions dated November 4, 2008 and September 29, 2009 APPEARANCES: For the worker: For the employer: Interpreter: Self-represented Closed N/A Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 829/10I REASONS (i) Introduction [1] This appeal was heard in Sudbury on April 27, The worker appeals two rulings by the Workplace Safety and Insurance Board (the Board). [2] The first is a November 4, 2008 decision of Appeals Resolution Officer (ARO) N.J Shruiff. The ARO upheld various decisions made by the Claims Adjudicator assigned to the worker s file, as follows: - The earnings basis used in calculating the worker s partial permanent disability (PD) award was correct. - The legislated increases and cost-of-living adjustments made to the worker s PD award were properly implemented. - The 20% award grated to the worker for fibromyalgia was properly calculated and integrated into his overall benefit entitlement. - The Canada Pension Plan (CPP) offset applied to the worker s benefits was properly calculated. [3] The worker appealed all of these decisions. [4] The second ruling is a September 29, 2009 letter from the Executive Director of the Appeals Branch. This letter deemed the September 15, 2009 of the Claims Manager and September 23, 2009 decision of the Case Manager (formerly Claim Adjudicator) to be final Board decisions. The Claims Manager increased the worker s total PD award from 82.5% to 87%, based on updated medical documentation, effective January 1, [5] The worker appealed, claiming that the arrears date for the increase should be [6] The worker attended the hearing on a self-represented basis. The accident employer is closed. The worker provided oral testimony and submissions on the various issues under appeal. (ii) Applicable law [7] The injuries giving rise to the worker s claim occurred in the 1960s. Therefore, the pre Workers Compensation Act (the Act) applies. (iii) Preliminary issues [8] As part of his appeal, the worker claimed that the Board s treatment of various aspects of his claims contravened the Canadian Charter of Rights and Freedoms (the Charter) and the Ontario Human Rights Code (the Human Right Code). He provided notice of these claims to the Attorney General of Canada and the Attorney General of Ontario, in accordance with statutory requirements and the Tribunal s Practice Direction. [9] At the beginning of the hearing the worker asked the Panel to hear and dispose of his Charter and Human Rights Code claims before dealing with the substantive issues in his appeal. After hearing submissions from the worker on this issue, the Panel decided that it was appropriate to follow the standard practice outlined in the Practice Direction as follows:

3 Page: 2 Decision No. 829/10I A Human Rights or Charter question that is raised in accordance with the Practice Direction will be addressed by the Tribunal only after a decision has been made on the other issues in the appeal under the applicable legislation and Board policy. Where the Tribunal has made a final decision on the other issues to the appeal so that a decision on the Human Rights or Charter question is no longer required, the Tribunal will not decide the Human Rights or Charter question. [10] However, the Panel agreed to hear the worker s submissions on the Charter and Human Rights Code issues before proceeding with the substantive issues in the appeal. After hearing the worker s submissions, the Panel determined that it would be appropriate to allow him a further opportunity to provide supplementary written submissions on the Charter and Human Rights Code issues, and advised the worker accordingly. Post-hearing staff were notified of this decision and commenced communications with the worker regarding his written submissions. The worker took exception to this process, arguing that he should have the right to make further oral submissions on the Charter and Human Rights Code issues. [11] The Panel considered the issue further and decided to proceed first with the substantive issues identified in the Hearing Ready letter, and to defer consideration of the Charter and Human Rights Code issues until after an interim decision on the substantive issues was finalized. We would then determine if we should remain seized of the appeal in order to deal with any outstanding Charter and Human Rights Code issues. The Panel has now decided that it is appropriate that we remain seized, and we have included directions in this interim decision as to how the remaining Charter and Human Rights Code issues should be dealt with. [12] During the course of the hearing, the worker produced a November 4, 2005 letter from Human Resources Development Canada which provides a breakdown of Canada Pension Plan Disability benefits and Disabled Contributor s Children benefits made to the worker between 1978 and The Panel decided that this document was relevant to one of the issues under consideration in the appeal, and accepted it as an exhibit. [13] Also during the course of the hearing, the worker suggested that one issue had been mischaracterized by ARO Shruiff in his November 8, 2008 ruling. According to the worker, his complaint about having to pay back pension benefits to the federal government after reaching age 65 relates to his Old Age Security pension and not to any CPP benefits, as referenced by the ARO. He seeks entitlement to section 147(4) benefits for one additional year beyond age 65 as an appropriate remedy in these circumstances. In order to provide the worker with a final decision on all outstanding issues, the Panel decided to bring this issue within the scope of the worker s appeal and clarified the issue agenda accordingly. [14] After the hearing, the worker decided to undergo left knee replacement surgery, which had been recommended by his treating physicians. This surgery took place on June 7, (iv) The issues on appeal [15] The issues under consideration in this appeal, as clarified, are: Was the earnings basis used in calculating the worker s permanent partial disability (PD) award correct?

4 Page: 3 Decision No. 829/10I (v) Was the worker s 20% PD award for fibromyalgia properly calculated and implemented into his overall PD benefit entitlement? Were the various legislated increases and cost-of-living adjustments made to the worker s PD award properly implemented? Was the CPP offset applied to the worker s benefits properly calculated? Is the worker entitled to sections 147(4) benefits for a 1-year period beyond age 65? Is the arrears date of January 1, 2008 set by the Board for the most recent PD increase correct? Background [16] The worker suffered a compensable back injury in December 1964 and a second unrelated injury to the right knee in June Over the course of approximately 40 years, the worker sought and was granted a number of benefits stemming from these injuries by the Board and the Tribunal. [17] On August 11, 2006, a different Panel issued Decision No. 975/05, which provides a good summary of various actions taken with respect to the worker s various claims to that point: On June 24, 1969, the worker was unloading asbestos sheeting from a truck when the load shifted. He attempted to jump off the truck and out of the way, but the toe of his boot got caught and the sheeting fell on his right leg. He suffered a fractured tibia. The worker s right knee injury was recognized as compensable by the WSIB (the Board ). Subsequently, the Board granted the worker entitlement to benefits for a left knee condition, claimed to have occurred as the result of his right knee injury, and entitlement was eventually extended to include a low back injury, which arose from a fall in his driveway as a result of the worker s knee having given out. As the result of an examination performed by the Board in approximately October 1981, the worker was granted a 10% permanent disability award for his low back, 25% for the right knee, 10% for the left knee and a 5% multiple factor, for a total of 50%. In approximately 1998, the worker s total permanent disability awards were increased to 62.5%, consisting of 25% for the right knee, 15% for the left knee, 15% for the low back and a multiple of 7.5%. In a decision dated October 29, 1999, Appeals Resolution Officer Shruiff granted the worker entitlement to an Independent Living Allowance ( ILA ) under his 1969 claim. In so doing, the Appeals Resolution Officer noted: Operational Policy Manual Document provides criteria for Board decision makers to apply when determining the worker s level of disability and ability to grant benefits under this policy. It specifically states the criterion for application if the worker received 100% partial permanent disability pension or a 60% non-economic loss award. The two figures for measurement of disability should not be construed to mean the same physical measurement has been taken. Both imply a significant physical disability as in a permanent disability pension set at 100%. Similarly, a significant impairment is recognized by a 60% non-economic loss award.

5 Page: 4 Decision No. 829/10I The worker has been assessed with 62.5% pension which is clearly well below the threshold of 100% as set out in the Operational Policy. The physical measurement used to establish the 62.5% pension measures the physical disability and may not necessarily capture limitations accompanying the disability. Under normal circumstances the pension is awarded for disability and vocational rehabilitation activity is afforded to lessen the work handicap stemming from that injury. Having a 62.5% pension which encompasses awards for the lower back and both knees does present a significant disability. Given the nature of the worker s injuries, they would in and of themselves when viewed separately would not necessarily present as a major limitation when performing modified employment or normal activities of daily living. When considered globally however, clearly more significant limitations are placed upon the worker pertaining to activities of daily living. The worker resides in an area of the province which would make reliance on family, friends and neighbours difficult. The worker, given the size of his property, would not be able to perform lawn care and snow removal at self-paced stages. I do not read Operational Policy Manual Document No as being absolute in this assessment of a severely disabled worker. Operational policy does allow board decision makers a certain level of discretion based on the real merits and justice of the case. When considering the global nature of the worker s compensable condition he presents as being significantly disabled enough to meet the intent of operational policy document In Decision No. 1283/99 dated June 26, 2000, a Tribunal Panel granted the worker entitlement to benefits for fibromyalgia with respect to his 1969 injury. The Panel granted the worker a 20% permanent disability award for that condition and noted that the award was to be payable in addition to the awards already granted in this claim. This provided the worker with total pension awards in the amount of 82.5%. As noted in Memo #744 dated September 25, 2001, the worker contacted the Board questioning the yearly indexing of his permanent disability awards. A clarification was requested and in Memo #745, dated September 28, 2001, a representative of the Payment Department indicated: This worker s pension has been indexed by CPI (consumer price index) from Jan. 1/96 to Jan. 1/98 and modified Friedland from Jan 1/98 to Jan 1/2001. For the period Jan. 96 & 97, if a worker was in receipt of a bill 165 award; the claim was entitled to CPI indexing. Effective Jan. 1/98 these claims are indexed by general indexing, commonly referred to as modified Friedland. The following will indicate how the pension is indexed, effective 1996: 1995 monthly pension rate x 2.4% (CPI indexing factor effective Jan. 1/96) 1996 monthly pension rate x 1.7% (CPI indexing factor effective Jan. 1/97) 1997 to 2000 monthly pension rate x.2% (general indexing factor effective Jan. 1/2000) 2000 monthly pension rate x.4% (general indexing factor effective Jan. 1/2001) 2001 monthly pension rate

6 Page: 5 Decision No. 829/10I The indexing factor effective Jan. 1/98 & Jan. 1/99 was zero, therefore claims remained at the same monthly rate from Jan. 1/97 to Jan. 1/2000. In approximately June 2004, the worker approached the Board with respect to establishing a claim for cancer, which he related to asbestos exposure in the course of his employment. In Memo #22 dated November 24, 2004, Dr. I. Taraschuk of the Board advised the Claims Adjudicator that given our policy on gastrointestinal cancers and asbestos exposure you may wish to conclude the gentleman s cancer is work-related. In a letter dated December 15, 2004, the worker was advised that he was being granted a 100% Non-Economic Loss ( NEL ) award with respect to his cancer. When the worker s claim was considered by Appeals Resolution Officer Shruiff in 2004, the issues set out to be decided were the worker s request for an easy lift chair under the ILA, the amount of interest processed on the ILA and the worker s request for recognition of Chronic Pain Disability as a separate and distinct injury. As noted earlier, in his decision of July 23, 2004, the Appeals Resolution Officer denied the worker s appeal. The worker appealed to the Tribunal and as a result of discussions with the Office of the Vice-Chair Registrar, the issue on appeal was confirmed in Exhibit #9 to be the method of calculation of the interest payment under Bill 165, using full indexing in [the 1969 claim]. As noted in Decision No. 975/05I, after considering the submissions made by the worker at the hearing on May 26, 2005, it became apparent that the issue the worker wished to pursue was not one of those dealt with by the Appeals Resolution Officer in his decision of July 23, The issue the worker wished to pursue concerned the matter of indexing of his permanent disability awards. According to the worker, prior to January 1998, he had received a yearly increase in each of his permanent disability awards and the amount of that increase had been determined by reference to the Consumer Price Index ( CPI ). The worker indicated that since 1998, however, the indexing had been governed by the Friedland formula, which provided a much smaller increase. Noting that the question of indexing had not been the subject of a final decision by the Board, the Panel concluded, in Decision No. 975/05I, that we had no jurisdiction to deal with the matter and therefore placed the worker s appeal in the Tribunal s inactive status to permit him to return to the Board for further adjudication. The worker returned to the Board and in a decision dated December 20, 2005, Appeals Resolution Officer Shruiff denied his appeal and concluded: The worker is in receipt of an 82.5% partial permanent disability award in recognition of the residua of the occupational injury. Although this presents as a significant disability it has not been rated clinically a permanent total disability. The use of the alternate indexing factor is specifically designed for workers who had been rated as permanently totally disabled. It is noted that the worker is also in receipt of full loss of earnings benefits under [the cancer claim] and a 4.7% pension under [a prior claim] as a result the worker presently receives 187.2% benefits. The payments in the worker s claims clearly have not accounted for benefits being paid out of other claim files. If the multiple payments were factored together the worker would only be in receipt of 100% benefits out of all files, much less than what is being processed presently.

7 Page: 6 Decision No. 829/10I Since these payments are made independently from one another they should not be added together for the purposes of the indexing factor. The worker is not in receipt of a 100% pension and therefore would not be entitled to the application of the alternate indexing factor. In arriving at this conclusion it must be understood that a partial permanent disability pension is a clinical estimate of an impairment of earnings capacity. This suggests that given the degree of the injury the average worker making the average wage in the province of Ontario should be capable of making a corresponding percent of their pre-accident wages. In this case it would be estimated that the worker should be capable of making approximately 18.5% of what he was making prior to the work injury. As a result the worker cannot be classified as being unable to work. In spite of the significant disability the worker is seen to have a capacity to earn, albeit rather limited in scope. Conclusion Having studied the available evidence it is the judgment of the Appeals Resolution Officer that the worker is not entitled to the application of the Alternate Indexing Factor. Before the worker s appeal with respect to the Indexing Factor could be returned to the Panel, the worker advised the Tribunal Counsel Office that he had another matter that he would like to have addressed. He asked that the Panel also consider his appeal from the October 11, 2005, decision of Appeals Resolution Officer R. Horne which denied him entitlement to section 147 benefits beyond September Information on file suggests that effective July 26, 1989, the worker became entitled to supplementary benefits pursuant to (what is currently) section 147(4). As the worker noted in his testimony, the decision to initially grant section 147(4) benefits was based in part on a questionnaire he completed on approximately August 2, 1989, in which he indicated that his current monthly earnings before taxes were $ (including Canada Pension Plan payments). After considering the worker s escalated pre-accident earnings of $ per week and taking into account his permanent disability award of $ and CPP payments of $515.50, it was determined that the worker had a wage loss of approximately $1, a month. The worker continued to receive the section 147(4) supplementary benefits and, as noted in Memo No. 449 and confirmed in a letter from an Adjudicator dated October 31, 1994, it was decided that these benefits would remain in place until he reached the age of 65 (in July 2005). At the time the section 147(4) benefits were granted, the worker was receiving permanent disability awards totalling 50%. As noted earlier, in August 1997, his permanent disability awards were increased to 62.5% and later, an additional 20% permanent disability award was granted for fibromyalgia. In a letter dated October 2, 2000, a manager of the Board s Pre-1990 Claims Unit advised the worker in part: [ ] We also discussed details regarding the payment of section 147(4) supplementary benefits. I informed you an error had occurred when your pension increase was processed on May 20, It appears that the section 147(4) was not re-calculated in light of the increased monthly pension. Futhermore, it also appears the Canada Pension Plan benefits you were receiving were not offset as required by section

8 Page: 7 Decision No. 829/10I 147(11) of the Act. Had this occurred, the benefits under section 147(4) and (14) would not have been payable from January 1, For the period January 1, 1998 to September 1, 2000 benefits totalling $10, were incorrectly paid in view of the explanation provided above. We will not be requesting re-imbursement of this debt in view of the administrative oversight. As discussed, however, the adjustment and re-calculation has confirmed that there will be no section 147(4) and section 147(14) benefits payable effective September 1, The worker objected to this decision and the matter was referred to an Appeals Resolution Officer. In a decision dated July 3, 2001, Appeals Resolution Officer Shruiff confirmed, among other things, that the worker was not entitled to section 147(4) benefits subsequent to September 1, The worker appealed to the Tribunal and in Decision No. 858/02, the Tribunal granted the worker s appeal concluding, among other things, that the Board did not have the authority to alter the section 147(4) benefit after the 60-month or final review that had occurred in Information on file suggests that while the Board s operating level implemented Decision No. 858/02 by restoring section 147(4) benefits, it did not re-instate section 147(14) benefits. The worker asked that the Tribunal re-consider/clarify Decision 858/02 suggesting that the Panel did not address all issues of entitlement that were supposed to have been decided and that his concerns about the payment of section 147(14) benefits could be resolved by clarifying the decision. As noted in a letter dated May 26, 2005, however, the Tribunal s Acting Chair advised the worker that the most appropriate course of action would be to appeal the Board s decision to terminate section 147(14) benefits. The worker returned to the Board on this issue and in Memo No. 832 Board staff noted: Board Operational Policy Manual Document No was in effect in October 1994 when the Board s final review of the worker s section 147(4) supplement took place. Document No did not allow for an adjustment of a worker s supplement based on a change in permanent disability benefits. As of January 1, 1995, amendments to the Act provided for additional payments of up to $200 per month (indexed) to workers who were entitled to receive section 147(4) supplements. The Board s section 147(4) policy states that the Board pays section 147(4) benefits for life, unless a worker s financial circumstances change. The Policy also notes that the Board may review section 147(14) payments at any time. Section 147(16) states that section 147(14) payments for a worker with a pre-1985 injury shall be reduced if necessary so that the sum of the following amounts does not exceed 75% of the worker s pre-injury average earnings: 1. The payment under sub-section (14); 2. The amount awarded for a permanent disability; 3. 75% of the worker s average earnings after the injury, if any; 4. Any pension for old age security that the worker is eligible for under section 3 of the Old Age Security Act (Canada); 5. 75% of the worker s average earnings after the injury, if any, includes Canada Pension Plan disability benefits received by a worker.

9 Page: 8 Decision No. 829/10I Section 147(11) of the pre-1997 Act requires the Board to have regard to any payments the worker received under the Canada Pension Plan in calculating the amount of the worker s supplement. Policy specifies that where a worker is in receipt of CPP benefits, those benefits will be deducted from the pre-accident gross average earnings adjusted for inflation, creating revised gross average earnings. The intention of the Act is to compensate the worker for lost earnings and not to create windfall benefit. [ ] WCB may review 147(14) payments at any time, but routinely reviews them: September months after the initial 147(4) determination; 60 months after the initial 147(4) determination; When the 147(4) is discontinued because the worker is eligible for OAS; If the amount of a worker s partial disability payment is adjusted. Weekly gross escalated Less weekly CPP Gross weekly x 75% = x (monthly) = 1, (75% of the worker s gross earnings) (pension awards) 0 payable as 147(14) supplement Pension award is greater than 75% of the worker s pre-injury gross earnings. 147(14) benefits are not payable. The worker s objection to the closure of section 147(14) benefits was eventually considered by an Appeals Resolution Officer and in a decision dated October 11, 2005, the Appeals Resolution Officer denied the worker s appeal and concluded:... No arguments had been presented challenging the amounts used in the calculations or that the calculations themselves are incorrect. As stated above, the WSIAT has already accepted that the amounts and calculations regarding 147(4) supplement and that the amounts and calculations used in determining 147(4) supplementary entitlement are correct. Given the wording of section 147(14) and sub-section 16, I am satisfied that section 147(14) supplements cannot be paid if the amount of the permanent disability in section 147(14) supplement exceeds 75% of the pre-accident adjusted gross earnings. I am further satisfied having reviewed Decision 858/02 from the WSIAT and the Operating Area s decision of April 26, 2005, that this is the case in [the worker s] situation. The amount of section 147(14) supplement when added to [the worker s] permanent disability award, exceeds 75% of his pre-accident gross earnings to such an extent that no 147(14) benefit is payable. As suggested by the worker, section 147(14) provides that where it has been determined that a worker is entitled to benefits pursuant to section 147(4), he or she is also entitled to receive benefits pursuant to section 147(14). That being

10 Page: 9 Decision No. 829/10I said, however, while the worker has taken the position that once it is determined that a worker is entitled to benefits under section 147(4) or (14), a worker always remains entitled to those benefits, section 147(16) appears to suggest otherwise. As we review that portion of the legislation, it suggests, in our view, that there may be situations where benefits granted under section 147(14) will have to be either reduced or eliminated altogether. Section 147(16) is quite explicit that a worker will not be entitled to section 147(14) benefits if the total of certain items exceeds 75% of his pre-injury average earnings. The items which are combined are the payments made under section 147(14), the amount awarded for permanent disability awards, 75% of the worker s average earnings after the injury, if any and any pension for old age security for which the worker is eligible. As noted earlier in this decision, the Claims Adjudicator reviewed the worker s awards in Memo No At that time, it was estimated that 75% of the worker s pre-injury average earnings were $ per month. This figure was established by using an escalated weekly gross of $570.89, less weekly CPP benefits of $ Noting that the worker was receiving pension awards in the amount of $1, (about $200 more than 75% of the gross earnings) it was determined the worker had no entitlement to section 147(14) benefits. Once again, while we acknowledge the worker s position that once entitled to section 147(14) benefits, one should remain entitled, we are of the view that the legislation is very clear that there may be situations where the section 147(14) benefits need to be reduced or eliminated. In reaching this conclusion, we also agree with the comments of the Claims Adjudicator that the intention of the Act is to compensate the worker for lost earnings and not to create a windfall benefit. Section 147(16) is very clear that all of this new financial information shall be taken into consideration when determining if entitlement to section 147(14) benefits should be granted. In reaching our conclusion, we have also taken into consideration the worker s comments that his CPP benefits ought not to have been taken into consideration when determining his entitlement to section 147(14) benefits. Once again, we note the comments of the Claims Adjudicator, in Memo No. 832, that section 147(11) mandates that the Board shall have regard to any CPP payments the worker receives when calculating his pre-injury earnings rate. Similarly, while the worker took the alternate position that only 50% of his CPP benefits ought to have been deducted because they were awarded for compensable and non-compensable conditions, we would note that firstly, no documentation was provided confirming the basis upon which the CPP benefits were granted back in the 1970s. Secondly, while the worker has indicated that he did have some other problems involving his legs, feet and headaches, we cannot conclude that the effect of these disabilities were significant when compared to his compensable low back, right knee, left knee and fibromyalgia conditions. In light of the above, we find ourselves in agreement with the Board that pursuant to section 147(16) the worker is not entitled to section 147(14) benefits. [18] The worker asked for a reconsideration of Decision No. 975/05. The Vice-Chair from the original hearing Panel concluded that the worker s request did not meet the threshold test for reconsideration under the Tribunal s Practice Direction. His reasons are outlined in Decision No. 975/05R: In his reconsideration materials, the worker also appears to raise a concern that the Panel did not deal with certain other issues that he believes ought to have been

11 Page: 10 Decision No. 829/10I considered, including the authority to deduct CPP benefits; the fact that a reduction in his compensation benefits because of CPP also eventually reduces the CPP benefits payable (double dipping); the original calculation of his earnings basis and an objection to the Board referring to other claims of his. As noted earlier, this is a very complex claim on which the worker has appealed a number of issues resulting in various ARO and Tribunal decisions. In my view, the issues before the Panel which issued Decision No. 975/05 were quite clear - namely whether the worker s permanent disability awards ought to have been indexed with the CPI or the Friedland indexing factor and whether the worker was entitled to Section 147(14) benefits after September With regards to the indexing factor, the Panel agreed with the Board that while the worker may have been receiving approximately 190% benefits when one combined all of his claims, CPI indexing was available only to workers who had 100% permanent disability awards in a particular claim. With respect to the issue of Section 147(14) benefits, the Panel did not accept the worker s argument that once entitled, always entitled. The Panel concluded that given the information before us, the Board had correctly terminated Section 147(14) benefits pursuant to the provisions of Section 147(16). If the worker now has concerns about issues such as the correct calculation of his pre-accident earnings or how those earnings were escalated or whether it is discriminatory to deduct CPP benefits, I am satisfied that those are issues that need to be addressed at the Board level and were not something over which this Panel had jurisdiction. [19] A number of the issues identified by the Vice-Chair were subsequently dealt with by the Board s Operations Area. In his November 4, 2008 ruling, ARO Shruiff refers to them as decisions dated November 18, 2007, June 12, 2007, March 7, 2008 and May 7, [20] After hearing oral submissions from the worker and reviewing the extensive documentary record, ARO Shruiff issued his ruling which essentially upheld the various Operations Area decisions. He found: There was insufficient evidence to alter the partial permanent disability basis established in the worker s claim. The worker was being appropriately compensated though legislated increases and cost-of-living adjustments on his partial PD pension. The worker s 20% PD award for fibromyalgia was properly included in the calculation of overall PD entitlement. The application of the CPP offset provisions was correct. [21] In September 2009, the worker asked for a reassessment of his PD award on the basis that his medical condition had deteriorated. He claimed that this deterioration would entitle him to 100% PD benefits. [22] The Claims Manager took into account updated medical documentation concerning the worker s left knee and determined that the PD award for this body part should be increased from 15% to 18% and the multiple factor from 7.5% to 9%, bringing the overall PD award under the claim to 87%. The Manager set an arrears date of January 1, 2008, three months prior to the worker s request for a PD reassessment. [23] The worker appealed, maintaining the arrears date should be 1990.

12 Page: 11 Decision No. 829/10I [24] On September 29, 2009, S. Todorovic, Executive Director of the Appeals Branch, confirmed the Case Managers decision as a final Board decision for the purposes of the worker s appeal. (vi) (a) The worker s position Earnings basis for PD award [25] The worker makes two submissions in support of his position that the earnings basis used for setting his PD award is incorrect. [26] First, he points out that when the earnings basis was first set by the Board it was based on his 1969 earnings, which were over the allowable maximum. He agrees that he was paid at the maximum, but submits that the Board failed to take into account overtime earnings and allowances for room and board. [27] The worker also submits that the policy applicable at that time allowed the Board to calculate the earnings basis in two different ways, and was required to use the method that would be to the benefit of the worker. In the worker s view, this second option would have enabled him to receive benefits in excess of the set maximum. The worker was unable to identify this specific policy. [28] The worker s second argument is that he suffered a number of recurrences of his 1969 injury, the most recent being in 1978, and that the Board should have used actual earnings at that time as the basis for determining his earnings basis for the PD award. He points to Board Policy No in support of his position. [29] At his October 10, 2008 hearing before ARO Shruiff, the worker advanced another argument that was not raised by him at our hearing: The worker also disputed his pre-injury earnings suggesting that the maximum calculation at the present time has not kept pace with his earning potential as a skilled tradesman in the construction services. He submits that his pension basis be increased to more properly reflect today s wages. [30] In the absence of any direct submissions on this last point, we have concluded that the worker is not longer relying on this argument which, in our view, is not supportable under the Act and Board policy in any event. (b) Treatment of PD award for fibromyalgia [31] The worker takes the position that his 20% PD award for fibromyalgia is separate and distinct from any organic PD awards granted for his back and knee injuries, and that the awards should be considered independently. At the same time, he acknowledges that the fibromyalgia entitlement was granted in the context of his 1969 knee injury claim. (c) PD adjustments [32] In his testimony the worker clarified that he is not taking the position that the various adjustments to his PD award applied over the years contravene the statutory provisions or Board policy applicable to the various adjustments. Rather, he submits that changes made to the

13 Page: 12 Decision No. 829/10I compensation scheme, in particular the introduction of the Workplace Safety and Insurance Act in 1998, have had a negative impact on his earnings potential and that of other older workers. [33] The worker also takes the position that the recent adjustment to his PD award to reflect a deteriorating left knee condition should be sufficient to entitle him to benefits associated with total disability. He points out that, although the current PD award level is 87%, his doctors have indicated that a left knee replacement is required, and that this would bring his overall disability level to at least 100%, thereby triggering entitlement to a different and more generous indexing system under Board policy. [34] The worker also points out that he has other compensation entitlements, including a 100% NEL award for cancer, which bring his overall benefit entitlements to 187% which, in his view, should be taken into account in determining whether he has entitlement for a different adjustment mechanism. (d) CPP offset [35] The worker makes two submissions regarding CPP offset. [36] First, he submits that the policy applied by the Board in offsetting CPP benefits against his section 147(4) entitlement is unfair. He points out that his PD award in April 1978 when he was first granted CPP benefits was 50%, yet his full CPP pension was offset. In his view, a 100% CPP offset should be restricted to situations where a worker is in receipt of a 100% PD award. [37] The Panel noted that documentation regarding the worker s 1978 application for CPP benefits is not included in the Case Record. The worker advised that these documents cannot be located. When asked to recall, to the best of his ability, what medical issues formed the basis of his application, the worker identified his compensable back and knee injuries, as well as more generalized pain symptoms, including arthritis, and some possible psychological issues. He also acknowledged that he had not been diagnosed with fibromyalgia at that time. [38] The second CPP-related issue raised by the worker relates to child benefits. He provided a copy of a November 4, 2005 letter from the federal government which included a breakdown of CPP Disability benefits and CPP Disabled Contributor s Children (CPP-DCC) benefits paid to him between 1978 and The worker argues that only the CPP Disability benefits and not the CPP-DCC benefits should have been subject to offset under Board policy. (e) Section 147(4) benefits [39] The worker testified that his claim for section 147(4) benefits was resisted by the Board and was only resolved by Tribunal Decision No. 858/02, dated January 17, The decision granted the worker entitlement to section 147(4) benefits subsequent to September 1, 2000 until age 65. He also had other adjusted benefit entitlements that had not been paid by the Board at that time. [40] By this point the worker was 64½ years old. He applied for Old Age Security (OAS) benefits when he reached age 65 in July 2005, and received these benefits in the normal course.

14 Page: 13 Decision No. 829/10I [41] During the course of his first year of OAS entitlement, the Board processed certain outstanding benefit entitlements under his compensation claims, which brought his income for that year over the threshold level for claw-back under the OAS statutory scheme. According to the worker, because he had already received one year s work of full OAS payments, the federal government assessed him for an overpayment, which was deducted from his OAS entitlements in the following year. [42] The worker submits that, through no fault of his own, he has in effect been denied OAS benefit entitlements for a 1-year period through the application of the claw-back provisions which would otherwise not have applied had the Board processed his outstanding entitlements in a timely manner. He asks for a 1-year extension of section 147(4) benefits as an appropriate remedy for this situation. (f) Arrears date for most recent PD increase [43] The worker submits that the appropriate arrears date for his most recent PD reassessment should be 1990 rather than the January 1, 2008 date set by the Board. He argues that his treating orthopaedic surgeon, Dr. McIntosh, advised him at that time that he would eventually require a left knee replacement. The worker decided not to proceed with surgery at that time for a number of reasons, including his cancer diagnosis. However, in his view, he has needed a knee replacement for many years and the arrears date set by the Board does not accurately reflect the state of his left knee impairment. (vii) (a) Analysis and findings Earnings basis for PD award [44] The earnings basis for PD awards relating to injuries occurring prior to 1985 is set out in the pre-1985 Act and the Claims Adjudication Branch Procedures Manual Document This document states: The permanent disability basis is calculated on the worker s average weekly earnings during the twelve months immediately preceding the accident or shorter period if worker employed less than one year. Allowance for lost time from work is made under certain conditions. [45] In order to determine the actual earnings in a particular case, the Board obtains information from the worker and the employer by way of forms S96 and EA1, which was done in this case. [46] The policy provides that the earnings basis for purposes of PD benefits is determined on the same basis as used for the calculation of temporary disability benefits: The permanent disability basis is the same as the temporary disability basis - 90% of net average earnings. See, COMPUTING: Earnings Basis For Temporary Disability, Document Number [47] Document No provides: In calculating the compensation rate, consider the maximum and minimum in effect at the time of the accident. See Exhibit #1.

15 Page: 14 Decision No. 829/10I [48] Exhibit #1 sets maximum wage limits on a yearly and weekly basis, as well as corresponding compensation rates. [49] On the evidence, the Panel finds that the actual earnings of the worker were accurately determined when his initial earnings basis was set by the Board. ARO Shruiff references this in his November 4, 2008 decision: It is noted that the worker provided earnings information at the time of the partial permanent disability basis calculation by completing the Form S96. The worker indicated that he earned approximately $ in the year immediately prior to the accident. This same figure was confirmed by the accident employer in their completion of the EA1. There has been no evidence submitted to the claim file record to support that this figure used to establish the partial permanent disability basis is incorrect. The worker s basis was set at the maximum at the time of the occupational injury and has been compensated with the yearly increases appropriately. The worker was given the opportunity to peruse these documents at the time of the hearing and was able to confirm that the writing on the S96 was in fact his. [50] As far as overtime payments and allowances for room and board are concerned, regardless of whether they are legitimate sources of income for the purpose of setting the earnings basis, they would only serve to increase the worker s earnings further above the set maximum and, as such, could not advance the worker s case. [51] Turning to the worker s submissions regarding an alternative option for calculating the earnings basis, as best we can determine, the worker may be referring to OPM Document No This policy provides for two methods of calculation for accidents prior to 1974 when the pre-accident or net average earnings exceed the maximum in effect at the time of the accident. The policy goes on: For a worker who was injured before 1974, decision-makers calculate the value of the worker s monthly permanent impairment benefit in one of two ways: 1) If a worker s earnings exceed the legislated maximum at the time of the accident, decision-makers use the maximum earnings in effect at the time of the accident as the earnings basis for calculating the monthly value of the permanent impairment benefit. Consequently, all increases from the legislated escalation factors are compounded on the maximum in effect at the time of the accident. OR 2) If it to the worker s advantage, the decision-makers use the worker s actual earnings at the time of the accident for the earnings basis, even though these earnings may exceed the legislated maximum. All increases due to the legislated escalation factors are compounded on the worker s actual earnings. However, in applying the legislated escalation factors, the resulting monthly benefit cannot exceed the current maximum. After making calculations using both methods, decision-makers set the worker s monthly benefit according to the method that provides the worker with the higher amount.

16 Page: 15 Decision No. 829/10I [52] Although this policy allows for two methods of calculating the earnings basis for PD benefits, it would appear that both methods limit workers to the maximum monthly benefit in any year of entitlement. [53] That being said, the Panel is unable to determine whether the Board at any point actually calculated the worker s earnings basis under both methods and provided him with a rationale for choosing the method that is to his advantage. The worker obviously sees this as an important issue. Accordingly, although the Panel makes no finding regarding an error on the Board s part in calculating the earnings basis for purposes of the worker s PD benefits, we would encourage the Board to provide the worker with further details as to how OPM Document No was applied and how the worker s benefit entitlements were determined under both optional calculation methods. [54] As far as the worker s second submission is concerned, he relies on the provisions of Claims Adjudication Branch Procedures Manual Document No , which outlines computation policies based on a worker s most recent earnings. [55] The Document states: Sections 43(7) and 134 provide for the payment of compensation to a worker, who: - Has become entitled to benefits under the Act, - Has returned to employment, and - Becomes entitled to payment of temporary total or temporary partial disability by reason of any matter arising out of the original accident, On the basis of either the average weekly earnings at the date of accident or the average weekly earnings at the date of most recent employment, whichever is the greater. [56] In the worker s view, this policy would permit his higher wages earned at the time of his most recent recurrence in 1978 to be used to calculate the earnings basis for PD benefits, rather than the lower actual earnings at the time of the compensable accident in [57] We disagree. [58] The scope of Policy No is unambiguous - it deals with situations where a worker is entitled to temporary total or temporary partial disability benefits as a result of a recurrence. That is not the situation here. In 1978 the worker was in receipt of a partial PD benefit, not temporary disability benefits. As such, Policy No has no application. [59] A similar conclusion was reached by the Panel in Decision No. 338/94. That case involved a worker who suffered an ankle injury in He was initially paid temporary disability benefits, but was granted a PD award in Benefits were calculated on the basis of earnings at the time of the accident. The worker suffered a recurrence in He was paid temporary disability benefits following the recurrence, which were calculated by using the earnings basis at that time, but the earnings basis reverted to the worker s pre-accident earnings following recovery.

17 Page: 16 Decision No. 829/10I [60] In rejecting the worker s claim that his PD benefits should be based on earnings at the time of the recurrence, the Panel found: The worker's representative argued that justice had not been served by the Board's decision to calculate the worker's pension on the earnings basis at the time of the accident in He defined the term "equity" as the responsibility to decide cases on the basis of natural justice and not strictly on the letter of the law. The Panel had considered the worker's argument, but is unable to change the Board's decision. Sections 43(1) and 43(5) clearly state that the earnings basis which must be used in calculating pensions is the pre-accident earnings basis. Section 43(1) states that the amount shall be based on the average weekly earnings during the 12 months preceding the accident or such period as the worker has been employed. Section 45(6) gives the additional option of using the earnings at the time of the accident as a basis for the pension calculation. (Our emphasis). We cannot interpret the statute as giving adjudicators any authority to calculate a permanently-injured worker's benefits on the basis of his or her earnings at the time of a recurrence. In the present case, the accident at issue occurred on January 21, It is impossible to consider the recurrence of May 18, 1989, as a new accident, given that it was not an accident arising out of and in the course of the worker's employment in Ontario. Therefore, the earnings basis as of January 21, 1974, was correctly used.... [61] Similar reasoning is applicable to the present appeal. The worker sustained a compensable injury in 1969 and his PD award was correctly set by the Board on the basis of preaccident earnings. He suffered at least one recurrence, in 1978, after having reached maximum medical recovery from his original accident. The worker may have been entitled to reinstated temporary disability benefits at the time of the recurrence, that is not clear and also not before us in this appeal. However, the Act and applicable Board policy do not provide authority to set PD benefits on the basis of earnings at the time of any such recurrence. [62] Accordingly, the worker s second basis for objecting to the manner in which the earnings basis for his PD award is dismissed. (b) Treatment of PD award for fibromyalgia [63] Board Operational Policy Manual (OPM) Document No provides that PD benefits for fibromyalgia are considered under the Chronic Pain Disability (CPD) rating schedule. [64] This same policy document requires the Board to take a holistic approach when dealing with CPD entitlements: When assessing a worker for a permanent chronic pain disability (CPD), all aspects of the work-related impairment are considered, e.g. the organic, psychological, and psychiatric components of the disability. Because the rating is holistic, any impairment related to the identified organic or psychiatric source will be accounted for in the global impairment rating. To add the organic component to the CPD rating would be to recognize, twice, the part of the impairment due to the organic source. Therefore, there can be no stacking of