Workplace Health, Safety & Compensation Review Division

Transcription

1 Workplace Health, Safety & Compensation Review Division WHSCRD Case No: WHSCC Claim No: Decision Number: Gordon Murphy Review Commissioner The Review Proceedings 1. The hearing into the review application was held at the Workplace Health, Safety and Compensation Review Division office in Mount Pearl, NL on June 11, The worker attended the hearing via teleconference and was represented by Mel Strong, Appeals Officer with the Government Members Office. 2. The Commission was represented by Rebecca Phillipps, LL.B. 3. The employer did not attend nor participate in the hearing process. Introduction 4. On October 26, 1984 the worker injured his back while employed as a Heavy Equipment Mechanic. Physiotherapy, chiropractic care and surgery were prescribed. Unable to return to pre-injury employment, the worker was retrained and returned to work in early On August 1, 2007 the worker opted to receive early Canada Pension Plan (CPP) retirement benefits. 6. On August 23, 2010 the worker filed a claim for recurrence of injury, which was accepted for both health and wage loss benefits from September 28, 2010 through to September 28, On May 16, 2012 the worker filed a Form B: Worker s Request for Pension Replacement Benefit (CPP) with the Commission. The application indicated he had been in receipt of early CPP retirement benefits since August On November 10, 2012 the worker submitted correspondence requesting information on his annuity entitlement. On November 20, 2012 the Commission advised the worker the annuity fund had been abolished by legislation. 1

2 9. On March 19, 2013 the worker submitted correspondence requesting a review of his entitlement to an annuity under the Act. A copy of a January 20, 1993 letter from the Commission was also submitted. 10. On March 20, 2013 the Pensions Adjudicator denied the worker s claim for a Pension Replacement Benefit (PRB). The worker appealed to the Review Division 11. On May 15, 2013 the Internal Review Specialist upheld the PRB denial and advised the worker that the pension loss annuity matter was not an appealable issue. The worker also appealed that decision to the Review Division. Issue 12. The worker seeks a review of a decision by the Internal Review Specialist dated May 15, 2013 and requests I find the Commission erred in finding: i) he is not entitled to a Pension Replacement Benefit (PRB) due to a reduction in his Canada Pension Plan (CPP) retirement benefit; and ii) he is not entitled to a pension annuity. Outcome Issue (i) 13. The Commission erred in failing to provide reasons which demonstrate all the relevant evidence was taken into account. The matter is remitted to the Commission for a new decision which addresses the worker s argument on the effect the injury may have had on his contribution levels between the period between 1985 and The Commission must provide a new decision which reflects that all the relevant evidence is taken into account, with reasons reflecting how this issue was addressed. Issue (ii) 14. It is my finding that the Commission acted in accordance with the Act and did not commit an error in finding that the worker is not entitled to a pension annuity. With respect, the review is denied. 2

3 Legislation and Policy 15. The jurisdiction of the Review Commissioner is outlined in the Workplace, Health, Safety and Compensation Act ( the Act ), Sections 26(1) and (2), 26.1 and 28 which state, in part: Review by review commissioner 26(1) Upon receiving an application under subsection 28(1) a review commissioner may review a decision of the commission to determine if the commission, in making that decision, acted in accordance with this Act, the regulations and policy established by the commission under subsection 5(1) as they apply to (a) (a.1) (b) (c) (d) (e) compensation benefits; rehabilitation and return to work services and benefits; an employer s assessment; the assignment of an employer to a particular class or group; an employer s merit or demerit rating; and the obligations of an employer and a worker under Part IV. (2) An order or decision of a review commissioner is final and conclusive and is not open to question or review in a court of law and proceedings by or before a review commissioner shall not be restrained by injunction, prohibition or other process or proceedings in a court of law or be removable by certiorari or otherwise in a court of law. Review commissioner bound by policy 26.1 A review commissioner shall be bound by this Act, the regulations and policy. Application to review commissioner 28(1) A worker, dependent or an employer, either personally or through an agent acting on their behalf with written consent, may apply to the chief review commissioner for the review of a decision as referred to in subsection 26(1), within 30 days of receiving the written decision of the commission. (2) A review commissioner shall not review a decision under subsection (1) except in accordance with subsection 26(1). (4) A review commissioner to which a matter has been referred for review shall 3

4 (a) notify the person seeking the review and the commission of the time and place set for the review; and (b) review the decision of the commission and determine whether it was in accordance with this Act, the regulations and policy. (4.1) Where a review commissioner determines that the decision of the commission was in accordance with this Act, the regulations and policy, he or she shall confirm the decision of the commission. (4.2) Where a review commissioner determines that the decision of the commission was not in accordance with this Act, the regulations and policy, he or she shall identify how the decision of the commission was contrary to this Act, regulations and policy, specify the contravened provision, set aside the decision of the commission and (a) make a decision which is in accordance with this Act, regulations and policy; or (b) where it is appropriate to have a new decision from the commission, refer the matter to the commission for a new decision with or without direction on an appropriate remedy. 16. Also relevant and considered in this case are Sections 60 and 75 of the Act. Relevant Submissions and Positions 17. Mr. Strong, on behalf of the worker, gave a brief history of the worker s claims with the Commission. The worker sustained an initial injury in October 1984, while working as a Heavy Equipment Mechanic. He was not able to return to his pre-injury job and underwent some retraining before returning to work in this Province prior to relocating to New Brunswick. The worker s claim at the Commission was closed in September Mr. Strong indicated the worker applied for a recurrence of compensation benefits in September 2010, relating back to his 1984 injury and his claim was accepted by the Commission. The worker was receiving EEL benefits until he reached age 65 in February Mr. Strong noted that on December 28, 2012 the worker was advised by the Commission that he may be entitled to a Pension Replacement Benefit (PRB). However, Mr. Strong indicated the worker received further communication in March 2013 that in fact he was not entitled to this PRB, since he had opted to take early Canada Pension Plan (CPP) benefits at age 60, in August Mr. Strong indicated the worker had been forced to continue working, in spite of his back problems, due to necessity for the protection of his family, and it was for that reason, as well, that he had availed of the early CPP benefits. Mr. Strong referred to an MRI 4

5 performed on the worker in May 2013, which indicated severe spinal stenosis at L4-L5, moderate at L5-S1, with multilevel discarthrosis of the lumbar spine. Mr. Strong contended that this information supports that the worker s injury in 2010 was really a continuation of his original injury, rather than a recurrence. Mr. Strong suggested that, as a result, the worker missed the ability to continue to pay CPP contributions and it was, therefore, unfair that this, combined with his having to take early CPP benefits, had deprived him of a PRB. 21. Mr. Strong contended the worker is entitled to a PRB, similar to others who have received such a benefit. He referred to Review Division Decision Nos , and as examples of those who have received such a benefit. Mr. Strong suggested the Commission has erred in its decision on this matter. 22. With respect to the pension annuity issue, Mr. Strong indicated, in accordance with Section 75 of the Act, the worker, who was unable to pay CPP contributions during the years in the 1980 s and in 2010, lost the benefit of those contributions and should, therefore, be paid for those losses in lieu of the annuity. Mr. Strong contended the injury to the worker created an unintended consequence which has resulted in a loss to the worker. Had the worker not been injured, he would not have been obliged to collect his CPP at age 60 and he would have worked right up to age 65, or longer. 23. Mr. Strong stated that the decision of the Internal Review Specialist of May 15, 2013 should be overturned and the worker paid a PRB, in lieu of his loss. 24. The worker echoed Mr. Strong s sentiments. He felt strongly that he is entitled to a PRB by virtue of the fact he was unable to contribute to the Canada Pension Plan from 1984 to 1987 due to his injury. He stated he is not looking for any lost benefit from 2010 onwards but only that for the 1980 s period. He stated that every Province in Canada, as well as the Parliament of Canada, pays such a benefit plus 10%. 25. The worker stated that, in his opinion, the Government unfairly took his money in 1992 when they repealed the annuity benefit and, notwithstanding the legislative change, he still feels he is entitled to an annuity. 26. Ms. Phillipps, on behalf of the Commission, discussed the issues under review with respect to the annuity issue and the PRB. With respect to the annuity issue, Ms. Phillipps stated that in 1983 the workers compensation system changed from a disability system to a wage loss system. At that time, Section 63 of the Act contained an annuity provision that entitled certain injured workers at age 65 to an annuity paid by the Commission. In 1992 this provision was repealed by the Legislature and a new Section 75 was included in the Act that would provide a Pension Replacement Benefit (PRB) in certain circumstances. 27. Ms. Phillipps stated that the worker was advised on January 20, 1993 of the change in the annuity provisions and that he would no longer be entitled to the annuity benefit established on his claim. Accordingly, since the provision for the annuity payment had been repealed by the Legislature, the Commission has no legislative authority to effect payment of such an annuity, even in circumstances where workers were previously advised that they had such an entitlement. Therefore, despite the worker s contentions to the contrary, there is no longer 5

6 any mechanism or authority to pay such an annuity to the worker, whatever his personal circumstances may have been or currently exist. 28. Ms. Phillipps indicated that, with the coming into force of Section 75 of the Act, a worker receiving benefits as a result of injury, at age 65, would be entitled to any pension loss he or she could demonstrate, provided the worker is receiving compensation under the Canada Pension Plan or from an Employer Sponsored Pension Plan (ESPP). 29. Ms. Phillipps indicated that, since the worker had applied for and had received early retirement benefits from CPP at age 60 in 2007, at which time his contributions stopped, which was prior to the recurrence of his injury in 2010, he was not able to demonstrate a loss in pension benefits. He was already being paid CPP benefits at the time of his recurrence in September As a result, there was no demonstrable loss at the time he turned 65 years of age. 30. Ms. Phillipps contended that the Commission has not erred in determining that the worker is not entitled to the payment of an annuity or a Pension Replacement Benefit (PRB). She requested that the Commission s decision of May 15, 2013 be upheld. Analysis 31. To provide context to the analysis of the Commission s decision, I begin by noting the following. The worker in this case sustained a back injury on October 26, Following chiropractic and therapeutic care, it was determined the worker was unable to return to his pre-injury occupation and the worker successfully availed of a retraining program. However, he relocated to the Province of New Brunswick in 1987 and returned to work in that Province on March 14, The worker sustained a work related injury to his ankles in New Brunswick on April 17, 2008 and his claim was accepted for compensation benefits in New Brunswick. The worker s claim was closed in New Brunswick in September 2010 and the worker applied for and was approved for a recurrence of his 1984 injury, effective September 28, His claim continued until September 28, 2012, after he reached age Meanwhile, citing the need to protect his family financially, given his ongoing back symptoms, which he testified never fully resolved following his 1984 injury, the worker applied for and received early Canada Pension Plan (CPP) benefits at age 60 in August Issue (i) Entitlement to Pension Replacement Benefit 34. Section 75 of the Act provides for the payment of a benefit at age 65 to injured workers who can demonstrate they have sustained a reduction in CPP benefits as a result of their injury. I will comment more specifically on the provision later, but on May 16, 2012 the worker filed an application for a Pension Replacement Benefit (PRB), indicating, as he was required to do, that he had opted for early CPP benefits at age 60. Along with his application for a 6

7 PRB, the worker also included correspondence relative to a pension annuity. The matter of the annuity will also be discussed later in this decision. 35. The worker was advised on March 20, 2013 by the Pensions Adjudicator at the Commission that his request for a PRB had been denied. The letter from the Pensions Adjudicator states, in part: I have completed a review of your request for a Pension Replacement Benefit (PRB) due to a reduction in your Canada Pension Plan (CPP Retirement Benefit. Unfortunately, you are not entitled to this benefit. In order to qualify for a pension replacement benefit, you must demonstrate to the Commission that you are receiving less from your CPP retirement pension as a result of your work injury. According to information currently on file, you opted for early retirement benefits effective August 1, 2007, prior to your recurrence injury date of September 28, As a result, you are not incurring a loss to your CPP retirement benefits due to your compensable injury. Your request is therefore denied. 36. The Internal Review Specialist, in her decision of May 15, 2013, essentially reiterated the position taken by the Pensions Adjudicator and denied the worker s request for a PRB, concluding that he had not incurred a loss, since he had opted for early CPP benefits at age 60. However, the Internal Review Specialist failed to explain the rationale of why the worker was not entitled to the PRB for any potential loss of pension benefit resulting from his loss of earning capacity between 1985 and On the basis of the additional information submitted by the worker to the Commission from Service Canada regarding changes made to CPP contributions, the Internal Review Specialist referred the matter back to the Pensions Adjudicator for further review. However, despite an exhaustive search of the file documentation, I have been unable to locate any documentation to indicate whether or not this matter was subsequently addressed and the worker notified accordingly. The documents submitted by the worker outline changes that were being made to the CPP that, in certain cases, will provide greater benefits to individuals who take their CPP retirement pension after age 65, and some decreases to workers that take the CPP pension before age 65. It is interesting to note that the changes would not affect those individuals who started receiving a CPP retirement pension before December 31, 2010 and remain out of the workforce. 38. The worker testified at the hearing that, in his opinion, it was clear that he has suffered a loss in his CPP pension benefits due to the fact he had been unable to make CPP contributions to the Canada Pension Plan during 1986 and 1987 and only reduced contributions during 1985 and This was all due to the fact he was not working as a result of his injury and, therefore, unable to pay into the Canada Pension Plan. 39. The following is a reproduction of a Canada Pension Plan Statement of Contributions for the worker, produced in June 2012 by Service Canada: 7

8 Year Your Your Year Your Your Conntributions ($) pensionable contributions ($) pensionable earnings ($) earnings ($) M M M M M M M M M M M M M M M M M M M M M M M M M M M * * * 0 B * M M M B - Below Basic Exemption M - Maximum I note that, as acknowledged earlier, the worker s contributions were either reduced or were zero for the years from 1985 through It appears that the worker paid contributions on the maximum amount between 1990 and 2007 notwithstanding the injury. 8

9 40. Mr. Strong suggested that the worker had been forced to opt for early receipt of CPP to protect his family financially. Mr. Strong contended the worker would have continued to work until age 65 and would have continued to pay CPP contributions until that age, absent the 1984 injury and the 2010 recurrence. He suggested that the worker s CPP retirement pension would, therefore, have been greater than it was when he took the CPP in However, the worker testified at the hearing that he was not looking for any loss between age 60 and 65. In other words, he was not looking for any projected CPP loss after 2007, so I will not further discuss this aspect of the matter in much more detail, other than to note that the worker s withdrawal due to early retirement would not assist him in any event. If the worker was capable of working after 2007, as he apparently had been between 1990 and 2007, the fact that he elected for early retirement benefits would not support him in his claim. Whether the worker worked with symptoms or not, the file demonstrates that he had the capacity to work. The file demonstrates that he paid contributions on the maximum amount, in spite of working with symptoms, and it was not demonstrated that there was any loss in those years where he paid contributions on the maximum. The worker needed to demonstrate a loss on the basis that he was disabled, and that his contributions were reduced as a result of the disability. The worker elected to take early retirement, as was his right to do under the plan, but that does not mean that he has a loss during those contribution periods as a result of the injury, as the evidence does not establish that he could not have continued to work. I agree with the Commission s position on that point. 41. Mr. Strong also referred to Review Division Decision Nos , and as supporting documentation of decisions similar to this case. I have researched those decisions and, while they each refer to the matter of the PRB and are, accordingly, helpful for comparison purposes, neither is similar in content to the situation involving this worker. In any case, each situation must be examined and based on the specific circumstances of the specific case, despite what may have been determined in other decisions. 42. Before proceeding further, and for contextual purposes, it is helpful to restate Section 75 of the Act, in part, which is applicable in this case: Annuity at age (1) Where a worker who is eligible for benefits as a result of an injury that occurred after December 31, 1983 reaches the age of 65, an amount equal to the amount of a benefit that the worker demonstrates to the commission, that he or she has lost as a result of an injury for which he or she is receiving compensation under this Act, under the Canada Pension Plan or from a registered employer sponsored pension plan covering the worker and which is registered with and certified by the Superintendent of Pensions in accordance with the Pension Benefits Act, 1997 or an equivalent Act of another province or of the Parliament of Canada shall be paid to him or her by the commission. 9

10 43. Again, I note that this Section of the Act states that the benefit payable is an amount equal to the amount of a benefit that the worker demonstrates to the commission that he has lost (Emphasis mine.). As indicated above, I find that there is no loss as a result of the injury for the period after which the worker elected early retirement. However, I am less clear on the basis of the Commission s finding in relation to the period immediately following the injury. The worker has provided a base of information to the Commission that suggests, as a result of his injury, he was unable to contribute to the Canada Pension Plan during 1986 and 1987 and for parts of 1985 and So, while there are no monthly amounts or calculations attached, there is a potential loss demonstrated by the worker for those periods. I state potential because the Commission has not yet addressed this in this decision. The Commission may not have taken it into account at all, or it may have found that this period may be impacted by the CPP general drop-out provision, in which case there may not be a loss in CPP as a result of the worker s injury. However, this is speculation on my part because the reason is not provided. The Commission needs to speak to this matter one way or another before this matter can be satisfactorily resolved. I am reviewing the decision of the Commission, and its reasons, and if the Commission fails to provide reasons on an argument made by the worker and/or relevant evidence on the record, its decision is not in accordance with the Act, regulations, and policies. It must be remitted to the Commission to ensure all the relevant evidence is taken into account and that reasons are provided which address this issue. 44. In reading the decision, it appears that the Commission summarily dismissed any notion of a PRB simply on the basis the worker had opted for early retirement benefits in 2007, prior to his recurrence in There was no evidence provided in the file documentation before me to indicate whether and to what extent, if at all, the non-contribution issues in 1985 through 1988 were factored into the Commission s decision. Without evidence of what was, or was not, considered, it is not possible to determine whether or not there was a loss to the worker in respect of those years, or whether the Commission did indeed follow the Act. 45. I acknowledge that there is no reference in Section 75(1) of the Act as to whose responsibility it may be to perform the actual calculations in order to determine whether or not there is a loss. The Act, as noted above, stipulates that it is the responsibility of the worker to demonstrate the loss. However, the Commission has to make the finding that there is such a loss, and this usually involves at least some verification on the part of the Commission. The Act also does not state what form that the demonstration should take, but I do not believe the onus is entirely on the worker to quantify exactly what the loss is. The worker certainly has to put forward a basis for the loss, but, under Section 19 of the Act, the Commission is the body which has the exclusive jurisdiction to make decisions on such matters. Therefore, I find it difficult to accept that the Commission would not have to at least make an independent verification of the basis of the worker s claim and decide accordingly. The Act implies that there is some duty of investigation incumbent on the Commission, and that the worker is not exclusively responsible for obtaining all the evidence pertaining to his or her claim. As noted above, the worker has demonstrated a basis that the value of his pension could have been affected by the injury, so the Commission must address why it believes that this is, or is not, the case. 46. I allow the review on this issue and remit the matter back to the Commission for a new decision which addresses the worker s argument on the period indicated above. 10

11 Issue (ii) - Annuity 47. The second issue, dealt with by the Internal Review Specialist on May 15, 2013, was the issue of a pension loss annuity. 48. On November 10, 2012 the worker wrote the Commission concerning an annuity he indicated had been established on his behalf in 1987 to be available when he reached age 65 in February The Case Manager called the worker on the same day and advised him of the abolishment of the annuity fund in The previous Section 75, which contained a defined provision for an annuity, was repealed in 1992 and a new Section 75 was added. The current Section 75 provides for a model which is usually referred to as a Pension Replacement Benefit (PRB), although that term does not appear in the provision itself. I have discussed Subsection (1) at some length earlier in this decision. Section 75 of the Act also contains the following: (2) All the money that the commission has set aside in reserves of the commission on behalf of a worker to provide an annuity shall, after December 31, 1992, revert to the injury fund of the commission. (3) After December 31, 1992 a right that a worker may have had to receive the money set aside in reserves of the commission prior to January 1, 1993 or to have the money paid into an established superannuation fund is extinguished. (Emphasis added) 50. The evidence on the record indicates the worker was advised on January 20, 1993 of the change in the legislation and in the Workers Compensation Act. The letter stated, in part: I am writing today to outline a recent change in the Workers Compensation Act that may affect you. Basically the section of the Act which stated that an annuity would be set up for a worker who was receiving workers compensation benefits for a period exceeding 24 consecutive months, has been repealed. As a result you are no longer entitled to the annuity benefit that was previously established on your claim. You are, however, entitled at age 65, to any actual pension loss resulting from your work injury that you can demonstrate. 51. While the worker has disagreed with the abolishment of the annuity, or that it should be treated as abolished in relation to his claim, the legislature has the authority to make and repeal laws and legislation. It did so, above, in the plainest possible language. The funds that had been set aside at the Commission on behalf of workers for the annuity reverted to the Injury Fund at the Commission after December 31, Any such rights a worker may have had to this annuity fund were extinguished by the legislature on that date. Since there is no such annuity fund existing at the current time, the Commission has no legislative 11

12 authority to pay such an annuity, even in circumstances such as those applicable to the worker in this case, who had been previously advised they had such an entitlement before the amendment. Consequently, the worker in this case no longer has any right to any annuity funds, as outlined in the letter from the Commission on January 2, The review jurisdiction of a Review Commissioner is limited to reviewing a decision of the Commission for accordance with the Act, regulations, and Policies. The Act in question is the Newfoundland and Labrador legislation. The worker had argued the provision should be interpreted with reference to legislation of other provinces, without reference to what those provisions state, but I do not accept this argument. The legislation of other provinces, or the federal government, does not apply, and Section 75 is so obviously clear that there can be no reasonable doubt as to its meaning and the intent behind it. This being the case, it is unclear as to what assistance that provisions in other provinces could provide, even if references had been provided to me. 53. My role is not to review the Commission s decisions based on what the provisions of the Act once were, or what it is argued that they could be, or should be. I am not reviewing the wisdom of policy choices contained in the legislation, but whether the Commission followed the Act which it is bound by. The provision in this case abolished the annuity, as of a specific date, with retroactive effect. The Commission followed the Act in finding that the annuity entitlement was extinguished. 54. I make the final note that the Commission appeared to advise the worker that his review was denied because his appeal on this point did not speak to an appealable issue. Whether the issue was appealable from a procedural point of view, or not, is arguable, but it is very clear that the substance of the appeal effectively called for the Commission to enforce a provision that no longer exists. The Commission has no jurisdiction to apply provisions which no longer exist, because it is limited to the actual contents of the Act and any related legislation which necessarily affects the issue. Therefore, if the Commission s finding is that it lacked jurisdiction to entertain the request, I would not disagree with the Commission s conclusion, however they may have expressed it. I have performed my own analysis of the merits of the claim, and I find that the Commission came to the right conclusion. The annuity has been abolished and the provisions of the current Section 75 apply according to their own terms. The worker s claim to an annuity was abolished in I find that the Commission acted in accordance with the Act in finding that the worker is not entitled to a pension annuity. Decision Issue (i) 56. The Commission erred in failing to provide reasons which demonstrate all the relevant evidence was taken into account. The matter is remitted to the Commission for a new decision which addresses the worker s argument on the effect the injury may have had on 12

13 his contribution levels between the period between 1985 and The Commission must provide a new decision which reflects that all the relevant evidence is taken into account, with reasons reflecting how this issue was addressed. Issue (ii) 57. It is my finding that the Commission acted in accordance with the Act and did not commit an error in finding that the worker is not entitled to a pension annuity. With respect, the review is denied. Issue (i) Referred to WHSCC Issue (ii) Review Denied Gordon Murphy Review Commissioner July 30, 2014 Date 13