WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 975/05R

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 975/05R BEFORE: R. Nairn : Vice-Chair HEARING: October 26, 2006 at Toronto Written DATE OF DECISION: December 29, 2006 NEUTRAL CITATION: 2006 ONWSIAT 3076 DECISION(S) UNDER APPEAL: Worker request for reconsideration of Decision No. 975/05 dated August 11, 2006 APPEARANCES: For the worker: For the employer: Interpreter: Unrepresented Closed None 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. 975/05R REASONS (i) Introduction [1] 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 ). [2] Subsequently, the Board granted the worker entitlement to benefits for a left knee condition, claimed to have occurred as a result of his right knee injury. Entitlement was also extended to include a low back injury which arose from a fall in his driveway as a result of the worker s knee giving out. [3] Following a permanent disability assessment performed in October 1981, the Board granted the worker a 10% permanent disability award for his low back, 25% for his right knee, 10% for his left knee and a 5% multiple factor, for a total of 50%. [4] 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 factor of 7.5%. [5] The worker has appeared before the Tribunal on a number of occasions with respect to various issues arising out of his claim. 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 directed that it be payable in addition to the awards already granted in his claim. This increased the worker s pension awards to 82.5%. [6] In late 2004, the Board accepted the worker s claim for entitlement with respect to gastrointestinal cancer that he claimed was related to asbestos exposure. In a letter dated December 15, 2004, the worker was advised by the Board that he was being granted a 100% Non-Economic Loss ( NEL ) award for his cancer. [7] In 2004, the worker appeared before an Appeals Resolution Officer ( ARO ) requesting entitlement to an easy lift chair (pursuant to an Independent Living Allowance ( ILA ) which had been granted in a previous ARO decision). The worker also disputed the amount of interest processed on the ILA and asked that the Board grant entitlement to benefits for Chronic Pain Disability ( CPD ). In a decision dated July 23, 2004, the ARO denied the worker s appeal. [8] The worker appealed this decision to the Tribunal and a hearing was scheduled for May 26, After considering the oral submissions provided by the worker, it became apparent to the Panel that the issue the worker wanted to pursue was not one of those dealt with by the ARO in his decision of July 23, In reality, the issue which concerned the worker was the matter of the indexing of his permanent disability awards. Of particular concern to the worker was that 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

3 Page: 2 Decision No. 975/05R the Consumer Price Index ( CPI ). According to the worker, since 1998 however, the indexing had been governed by the Friedland formula, which provided for a much smaller increase. [9] 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 appeal in the Tribunal s inactive status in order that the worker could return to the Board for further adjudication. [10] The worker returned to the Board and in a decision dated December 20, 2005, ARO Shruiff denied his appeal concluding, in essence, that since the worker was not receiving a 100% pension under this 1969 claim, he was not entitled to have his pensions indexed as he wished. [11] Before the worker s appeal on this matter could be returned to the Tribunal, the worker advised that he had another ARO decision, dated October 11, 2005, which he also wished to appeal. This decision had denied him entitlement to Section 147(14) benefits beyond September Information on file suggested that effective July 26, 1999, the worker had become entitled to supplementary benefits pursuant to Section 147(4) of the Worker s Compensation Act. Subsequently, the worker also was granted Section 147(14) benefits. In a letter dated October 2, 2000, a Manager of the Board s Pre-1990 Claims Unit advised the worker that due to the Board s failure to take into account the increased monthly pension and the worker s CPP benefits, the worker had incorrectly been granted Section 147(4) and (14) benefits from January 1, 1998 resulting in an overpayment of about $10,000. The Board decided not to pursue recovery of the overpayment but terminated further supplementary benefits effective September 1, The worker s objection to this decision was eventually confirmed in an ARO decision dated July 3, 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 Section 147(4) benefits after the 60 month or final review that had occurred in The file was returned to the Board for implementation of Decision No. 858/02 and Section 147(4) benefits were restored. However, the Board did not reinstate Section 147(14) benefits. The worker asked for a reconsideration of Tribunal Decision No. 858/02, but 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. [12] The worker returned to the Board and in a decision dated October 11, 2005, an ARO denied the worker s appeal and confirmed the closure of Section 147(14) benefits. [13] On April 27, 2006, the worker s hearing (which had initially commenced on May 26, 2005) reconvened. The issues to be dealt with at this hearing were whether the worker was entitled to Section 147(14) supplementary benefits from September 1, 2000, and whether the worker was entitled to have his 82.5% permanent disability awards indexed according to the CPI. The worker, who elected to represent himself on both days of hearing, provided evidence and made submissions. A summary of his submissions was included in Decision No. 975/05. [14] After the hearing, the Panel noticed that due to an administrative oversight, the Board s policy on Section 147(14) benefits had not been included. By means of a memo dated May 1, 2006, the Panel asked that the Tribunal Counsel Office obtain the policy and provide the

4 Page: 3 Decision No. 975/05R worker with a copy and give him three weeks in which to make further written submissions. The worker submitted further written material which was considered prior to making our decision. [15] After considering all of the material before us, the Panel, in Decision No. 975/05 denied the worker s appeal and concluded: (a) Indexing factor In this case the worker has requested that effective January 1, 1998, his 82.5% permanent disability award granted under this claim ought to have been indexed in accordance with the CPI or Alternate Indexing Factor rather than the modified Friedland Indexing Factor or the General Indexing Factor as it was otherwise known. Section 50(2)(a) of the Workplace Safety and Insurance Act, 1997, provides that the use of the Alternate Indexing Factor or the CPI applies with respect to the calculation of payments to workers whose loss of earnings is 100%. The Panel does not dispute that this worker has developed significant disabilities as a result of the accident in June He receives permanent disability awards totalling 82.5%. We also acknowledge the worker s position that when one considers his permanent awards under all of his claims, they total close to 190%. That being said, however, after considering the matter, we find ourselves in agreement with the Appeals Resolution Officer that for the purposes of the legislation, it would be improper to combine all of the worker s claims in determining whether or not he is permanently totally disabled. We agree with the reasoning of the Appeals Resolution Officer that if the intent of the legislation was to combine all of a worker s claims, then this worker would not have been able to receive 187.2% benefits. If the intention of the legislation had been to deal with a worker in a global context, then he could not have received more than 100% benefits in total. We agree with the Appeals Resolution Officer that since the awards under the worker s claims are made independently of each other, they should not be combined for the purposes of considering the application of the alternate indexing factor. Put another way, since the worker has had the benefit of a system which does not combine permanent disability awards and permits one to be granted awards in excess of 100%, he must also share the burden of the fact that those awards cannot be considered together for the purposes of an indexing formula. In light of the above, we are satisfied that this portion of the worker s appeal must be dismissed. (b) Section 147(14) benefits Section 147 provides: 147(1) In this section, "amount awarded for permanent partial disability" means the amount awarded for permanent partial disability under, (a) subsection 43(1) of the pre-1985 Act, with respect to a pre-1985 injury, and (b) subsection 45(1) of the pre-1989 Act, with respect to a pre-1989 injury; ("montant accordé au titre d'une invalidité partielle à caractère permanent") "worker" means a worker who is permanently disabled as a result of a pre-1985 injury or a pre-1989 injury. ("travailleur") (2) Subject to subsections (9) and (10), the Board shall give a supplement to a worker who, in the opinion of the Board, is likely to benefit from a vocational rehabilitation program which could help to increase the worker's earning

5 Page: 4 Decision No. 975/05R capacity to such an extent that the sum of the worker's earning capacity after vocational rehabilitation and the amount awarded for permanent partial disability approximates the worker's average or net average earnings, as the case may be, before the worker's injury. (3) A supplement under subsection (2) is payable for the period during which the worker participates in a Board-approved vocational rehabilitation program. (4) Subject to subsections (8), (9) and (10), the Board shall give a supplement to a worker, (a) who, in the opinion of the Board, is not likely to benefit from a vocational rehabilitation program in the manner described in subsection (2); or (b) whose earning capacity after a vocational rehabilitation program is not increased to the extent described in subsection (2) in the opinion of the Board. (5) A supplement under subsection (4) for a worker described in clause (4)(a) becomes payable as of the later of, (a) the 26th day of July, 1989; or (b) the day the Board determines the worker has a permanent disability. (6) A supplement under subsection (4) for a worker described in clause (4)(b) becomes payable as of the latest of, (a) the 26th day of July, 1989; (b) the day the Board determines the worker has a permanent disability; or (c) the day the worker ceases to participate in a vocational rehabilitation program. (7) A supplement under subsection (4) shall continue until the worker becomes eligible for old age security benefits. (8) The amount of a supplement under subsection (4) shall not exceed the amount of a full monthly pension for old age security under section 3 of the Old Age Security Act (Canada), including amendments thereto. (9) The amount of a supplement under this section for a worker with a pre-1985 injury shall be calculated so that the sum of the supplement, the amount awarded for permanent partial disability, $200 and 75 per cent of the worker's average earnings, if any, after the injury equals 75 per cent of the worker's pre-injury average earnings. (10) The amount of a supplement under this section for a worker with a pre injury shall be calculated so that the sum of the supplement, the amount awarded for permanent partial disability, $200 and 90 per cent of the worker's net average earnings, if any, after the injury equals 90 per cent of the worker's pre-injury net average earnings. (11) In calculating the amount of a supplement under this section, the Board shall have regard to the effect of inflation on the worker's pre-injury earning rate and to any payments the worker receives under the Canada Pension Plan or the Quebec Pension Plan with respect to a disability arising from the injury. (12) A supplement under this section shall be a monthly or other periodic payment. (13) The Board shall review a supplement given under subsection (4) in the twenty-fourth month following the award and in the sixtieth month following

6 Page: 5 Decision No. 975/05R the award and recalculate the amount of the supplement in accordance with subsections (9) and (10). (14) The Board shall pay an additional $200 per month to a worker who is receiving an amount awarded for permanent partial disability or who received a lump sum commuted from such an amount if the worker is entitled to a supplement under subsection (4) or would be but for subsection (7). (15) Subsection (14) applies even if the amount of the supplement, as calculated under subsection (9) or (10), is zero. (16) The payment under subsection (14), 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 percent of the worker's pre-injury average earnings: 1. The payment under subsection (14). 2. The amount awarded for permanent partial disability per cent 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). (17) The payment under subsection (14), for a worker with a pre-1989 injury, shall be reduced, if necessary, so that the sum of the following amounts does not exceed 90 per cent of the worker's pre-injury net average earnings: 5. The payment under subsection (14). 6. The amount awarded for permanent partial disability per cent of the worker's net average earnings after the injury, if any. 8. Any pension for old age security that the worker is eligible for under section 3 of the Old Age Security Act (Canada). 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 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

7 Page: 6 Decision No. 975/05R 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 preinjury 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. (ii) The reconsideration test [16] The Workers Compensation Act and the Workplace Safety and Insurance Act provide that the Appeals Tribunal s decisions shall be final. However, Sections 70 and 92 of the Workers Compensation Act and Section 129 of the Workplace Safety and Insurance Act provide that the Tribunal may reconsider its decisions "at any time if it considers it advisable to do so". Because of the need for finality in the appeal process, the Tribunal has developed a high standard of review, or threshold test, which it applies when it is asked to reconsider a decision. [17] Generally, the Tribunal must find that there is a significant defect in the administrative process or content of the decision which, if corrected, would probably change the result of the original decision. The error and its effects must be significant enough to outweigh the general importance of decisions being final and the prejudice to any party of the decision being reopened. The threshold test has been discussed in some detail in Decisions Nos. 72R (1986), 18 W.C.A.T.R. 1; 72R2 (1986), 18 W.C.A.T.R. 26; 95R (1989), 11 W.C.A.T.R. 1; and 850/87R (1990), 14 W.C.A.T.R. 1. (iii) The worker s submissions [18] In his Request for Reconsideration/Clarification form dated September 15, 2006, the worker provided the following reasons for making the reconsideration request: Significant new evidence was not available per requested attendance of (injured worker) as per May 8/06 to TCO and letter of appeal to (OVCR) dated Aug 23/06. Tribunal failed to consider all appeals of I/W and to answer all questions concerning different (but connected) issues re CPP benefits; double dipping; original calculation; WSIB comments including illegal info by WSIB re other claim.

8 Page: 7 Decision No. 975/05R [19] Attached to the Reconsideration form was a five page letter dated September 15, 2006, in which the worker expanded upon his request for a reconsideration. The material before me also includes a 12 page letter from the worker dated August 23, 2006, with some attachments. Those attachments are: 1. A November 4, 2005, letter from the Income Security Programs Branch of the Canada Pension Plan in which it is confirmed, among other things, that there is no copy available of the Notice of Entitlement previously sent to the worker. The document does provide however, a detailed breakdown of the Disability and Disabled Contributor s Children s Benefits he received during the period of April 1978 to July 2005, in the amount of $172, A bank statement confirming a CPP deposit of $ A July 28, 1982 Claims Review Branch decision which had denied the worker entitlement to benefits for his neck, shoulders, hands and feet. 4. Operational Policy Manual Document # Benefit of Doubt. 5. A copy of Memo #728A, an Access Review Memo, dated May 23, A copy of Memos 729 and 730 dealing with entitlement for prescription medication and massage therapy. (iv) Analysis [20] At the outset, it is worth noting that the Tribunal s reconsideration process is not meant to be a further level of appeal for workers or employers who are dissatisfied with their decision. Generally speaking, Tribunal decisions are meant to be final determinations of the matters on appeal and will be reopened only in limited circumstances. As indicated above, those circumstances include situations where there has been a significant defect in the administrative process leading to a decision or where there is a significant defect in the content of a decision which, if corrected, would likely lead to a different result. [21] One of the issues which the worker has raised in his materials is an objection to the fact that his reconsideration request is being dealt with by means of written submissions rather than through an oral hearing. The worker has also objected to the fact that the reconsideration request was returned to my attention rather than being placed before a different Adjudicator or Panel. As the Tribunal Chair noted in a letter to the worker dated October 16, 2006, the Tribunal s Practice Direction: Reconsiderations (created pursuant to the Tribunal s statutory authority to develop its own practice and procedure) provides that a reconsideration may be assigned to the original decision-maker. The reasoning behind this is that the original Vice-Chair or Panel will have the benefit of having heard testimony at the hearing and will be in the best position to consider whether the arguments provided satisfy the threshold test of establishing a significant defect in the process or content of the decision. In this case, the Chair of the Tribunal assigned the reconsideration request to the original Vice-Chair concluding there do not appear to be any exceptional circumstances which would justify appointing a new Panel. I retained the discretion however, to direct that an oral hearing be convened. After considering the matter, I find myself in agreement with the position taken by the Tribunal Chair that there is nothing exceptional about this particular application which would merit a departure from the Tribunal s

9 Page: 8 Decision No. 975/05R general practice of considering reconsideration requests on the basis of written submissions or assigning the reconsideration to the original Vice-Chair. [22] While it is not entirely clear, it appears that the worker may also have requested that the April 27, 2006, hearing be reconvened for him to make his submissions on the additional Board policy provided. In my view however, given that the Panel was quite aware of the worker s position on the issue of Section 147(14) entitlement, it was quite proper for the matter to have proceeded by means of written submissions. I am not satisfied that the failure to reconvene the appeal to deal with this post-hearing matter was a significant defect in the administrative process leading to the decision. [23] With respect to the issue of Section 147(14) benefits, the Panel concluded that Section 147(16) was 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 in Decision No. 975/05, the Board, in Memo No. 832, had determined that this worker was not entitled to Section 147(14) benefits because he was receiving pension awards in the amount of $1, which was about $200 more than 75% of his pre-accident escalated earnings of $1, In calculating the worker s gross earnings, the Board deducted the amount he was receiving for CPP benefits. In his reconsideration materials, the worker has repeated his position that at most, 50% of his CPP benefits ought to have been deducted because a portion of those benefits were paid for noncompensable conditions. Unfortunately, as the new material provided by the worker establishes, there is no longer any information available to confirm why the CPP benefits were initially granted. Secondly, as acknowledged by the Panel in Decision No. 975/05, there is no medical evidence before us to suggest that any other disabilities from which the worker may have suffered were as significant as the compensable low back, right knee, left knee and fibromyalgia conditions recognized by the Board. It is not disputed that the worker may have suffered from these conditions or continues to do so however, I do not believe it was unreasonable for the Panel to conclude, as did the Board, that there was insufficient evidence available to warrant ignoring the statutory requirement to include CPP benefits when calculating pre-injury earnings. [24] 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 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

10 Page: 9 Decision No. 975/05R 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 preaccident 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. [25] This appeal took place over two days. The worker was present on both days and provided testimony and submissions. He elected to represent himself. After carefully considering the material before it, the Panel issued two decisions, the first of which correctly identified the issues the worker sought to appeal and the second which denied the appeal. Not unexpectedly, the worker did not agree with the final decision and filed a request for reconsideration. A review of the material filed in support of that request for reconsideration indicates that for the most part, it is essentially an attempt to reargue his appeal and consists of arguments that were considered and ultimately rejected when the Panel reached its decision. As noted earlier, Tribunal decisions are meant to be final determinations of the issues dealt with. Reviewing the material submitted as a whole, I see nothing in it which would suggest that there was a significant defect in the administrative process which led to the Panel s decision or in the content of the decision itself, which, if corrected, would have led to a different result. In my view, the Panel reached a reasonable decision which was capable of being supported by the balance of available evidence. While the worker may not agree with the result, I cannot conclude that the decision was sufficiently defective to warrant reopening the matter.

11 Page: 10 Decision No. 975/05R DISPOSITION [26] The request for reconsideration is denied. DATED: December 29, 2006 SIGNED: R. Nairn