Decision No.: 2020-0352, 2020 CanLII 75041 (AB WCAC)
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Appeals Commission for Alberta Workers’ Compensation
Docket No.: AC0126-17-11 Decision No.: 2020-0352 |
Introduction
[1] The worker appeals two decisions of the Dispute Resolution and Decision Review Body (DRDRB) of the Workers’ Compensation Board (WCB).
[1.1] The DRDRB decision of March 30, 2016, determined that the 2015 Cost of Living adjustment (COLA) was correctly applied to the worker’s earnings loss supplement (ELS).
[1.2] The DRDRB decision of October 6, 2016, upheld the case manager’s decision and decided the following:
• There is no new evidence to support the recalculation and adjustment of the COLA on the worker’s pension, since the date of accident.
• There is no new evidence to support the recalculation and adjustment of the COLA on the worker’s ELS, since the date of accident.
[2] By way of background:
[2.1] The worker sustained a compensable accident on March 8, 1977, when a beam shifted and struck his left ankle. The WCB accepted responsibility for the left ankle fracture.
[2.2] On May 11, 1979, the worker was assessed with a permanent partial disability (PPD) of 2.5%, paid at his request to him by a commuted lump sum of $3941.16, based on the maximum insurable earnings at the time of accident.
[2.3] On May 19, 1982, the worker’s disability was increased to 5% PPD resulting in a monthly payment of $22.66. This payment was increased to $37.49 per month to reflect the provincial changes to the cost of living. The worker was provided with a retroactive payment of $638.20 for the period of October 28, 1980 to May 15, 1982.
[2.4] The worker received monthly PPD payments until February 28, 2001, when the WCB:
• confirmed the worker was in receipt of a monthly pension payment of $53.14 based on the previously assessed 5% disability,
• allowed for any pension assessed at or below 10% to be paid by lump sum based on section 42(3) of the Workers’ Compensation Act, RSA 2000, c. W-15 (the WCA) and WCB Policy 04-04, Part II, Application 7, and
• provided the worker with a commuted lump sum payment of his 5% PPD pension for $8,884.40.
[2.5] On September 8, 2014, the WCB wrote to the worker and confirmed that his current ELS was adjusted to reflect the increase in the Alberta Minimum Wage to $10.20 per hour, for a monthly payment of $2,218.10 effective September 1, 2014.
[2.6] On January 1, 2015, the worker received a 1.90% COLA increase resulting in an increase of his ELS to $2,260.24 per month.
[2.7] On March 2, 2016, the resolution specialist wrote to the worker’s representative (representative) and confirmed the issue of appeal was the acceptance of the recalculation of the cost of living increase that was applied to the worker’s earnings loss supplement on January 1, 2015.
[2.8] On July 13, 2016, the case manager decided that an Appeals Commission decision on another worker’s claim was not new evidence. The case manager determined that disagreement with decisions based on the representative’s opinion is not the basis of an administrative review and does not constitute new evidence.
[3] The March 30, 2016 and October 6, 2016 DRDRB decisions were appealed to the Appeals Commission on February 14, 2017 and were adjourned by the Appeals Commission on February 22, 2017, pending the outcome of a related court appeal.
[4] The appeals were filed within established time limits and all parties were provided notice.
Preliminary Matters
[5] The representative participated in this appeal as did counsel for the WCB. The worker participated via his representative, but the employer did not participate.
[6] The panel received additional submissions:
[6.1] On July 26, 2020, the panel received a written submission from the representative that was shared with the other parties.
• The panel noted at the hearing that the representative’ submission referred to questions in response to a July 17, 2020 WCB submission unrelated to this hearing.
• The panel provided instruction that, following the hearing, the representative would redact those portions pertaining to July 17, 2020 and provide an updated submission to the panel.
[6.2] On August 8, 2020, the panel received a submission from the WCB legal counsel.
[6.3] The panel confirmed the additional submissions were shared with the other parties on August 10, 2020.
[7] The panel confirmed that:
[7.1] The Appeals Commission would record the telephone conference call hearing; personal recording was not permitted, as hearings remain private to protect the privacy of all participants (Appeal Rules 3.12, 4.2(1));
[7.2] The representative and WCB counsel agreed to waive the necessity of introductory comments, given familiarity with the Appeals Commission hearing process;
[7.3] There was no objection to the composition of the hearing panel and the wording of the issues as noted below.
Subsequent Matters
[8] The worker’s representative, in response to the aforementioned redaction request in paragraph 6.1, did not fully sever the July 17, 2020 information as directed by the hearing chair. The panel received instruction from the chair to disregard any references to the July 17, 2020 portion of the representative’s submission.
Issues
[9] Issue 1: Was the 2015 cost of living adjustment appropriately applied to the worker’s earnings loss supplement?
[10] Issue 2: Is there new evidence regarding the recalculation and adjustment of the worker’s permanent partial disability pension and subsequent cost of living adjustments, since the date of the accident?
[11] Issue 3: Is there new evidence regarding the recalculation and adjustment of the worker’s earnings loss supplement, since the date of the accident?
Analysis – Issue 1
[12] Was the 2015 cost of living adjustment appropriately applied to the worker’s earnings loss supplement?
Legislation and Policy
[13] In deciding this issue of appeal, the panel reviewed and considered:
[13.1] The WCA, including sections 6(b), 13.1(1), 13.2(6), 24(1), 56, 59, 153(1);
[13.2] The WCA, sections 56, 59, 65, 66 (applicable versions prior to the 2018 legislative amendments);
[13.3] The 2005 WCB Board Order;
[13.4] WCB Policies, including 04-01, Part I, Interpretation 4, and 04-01, Part II, Application 4, Cost of Living Adjustments.
[14] Excerpts of applicable WCA sections and WCB policies appear in Appendix “A”.
[15] Throughout this issue of appeal, we will refer to the legislation current as of the day of the hearing and relevant sections of the legislation in force at that time. We rely on the WCB policy that is effective the date of the WCB case manager’s December 23, 2015 decision.
Case Law
[16] The panel reviewed the following decisions and case law referred to by the parties:
[16.1] Appeals Commission Decision 2009-135, reported at 2009 CanLII 68098 (AB WCAC) (Appeals Commission Decision 2009-0135);
[16.2] Osborn v, Alberta (Appeals Commission for Alberta Workers’ Compensation), 2009 ABQB 661 (Osborn); and
[16.3] Parada v Alberta (Appeals Commission for Alberta Workers’ Compensation), 2011 ABCA 44 (Parada).
Questions to be Answered
[17] To determine this issue of appeal, the panel must answer the following questions:
[17.1] Is the worker in receipt of compensation in respect of permanent total disability (PTD) or PPD?
[17.2] Is the worker in receipt of a supplement subject to COLA adjustment to bring his post-accident compensation to a level consistent with his pre-accident compensation?
Key Submissions
The Representative
[18] The key written and verbal submissions made by the representative are summarized in part, as follows:
[18.1] A two-part system is developed for impairment and disability. A pension is granted for impairment and ELS is granted for loss of earning capacity.
[18.2] A COLA is:
• governed by section 59 of the WCA and the 2005 WCB Board Order, and
• to be applied cumulatively to the worker’s pre-accident net earnings.
[18.3] Commuted pension should not be deducted from the ELS. There is no legislation to support the WCB implementation of reducing the worker’s pension.
[18.4] COLAs should be applied directly to the worker’s net earnings, and is not to exceed the maximum compensation level for the year the adjustment is applied.
[18.5] The pension was commuted19 years after the accident and was not adjusted correctly to the annual net earnings.
[18.6] WCB Policy 04-01, Part II, Application 4, supports PPD COLAs are to be added to net earnings.
WCB Legal Services
[19] The key written and verbal submissions made by WCB Legal Services are summarized as follows:
[19.1] Section 59 of the WCA states that the COLA is to be applied to the “amounts payable as compensation” to a worker. In other words, the COLA percentage is to be applied to a worker’s benefits (namely PPD). Section 59 of the WCA does not mention pre-accident “net-earnings”.
[19.2] This worker received a PPD award; therefore, the WCB appropriately applied the 2015 COLA percentage directly to the worker’s ELS.
[19.3] The 2005 WCB Board Order:
• reiterates section 59,
• directs application of the Board Order using a two-step process when a worker receives a PPD award and an ELS, or only an ELS,
• confirms The 2005 Board Order is retroactive to 1994,
• has established, since 1994, that the WCB was to apply the COLA percentage directly to the PPD award and/or ELS.
[20] The only issue before the panel in the present case is the application of the 2015 COLA as set out in the 2005 WCB Board Order to the worker’s ELS.
Evidentiary Findings and Reasons
[21] We find the WCB appropriately applied the 2015 COLA to the worker’s ELS. We rely upon the following to support our finding.
[22] Section 56 of the WCA provides direction as to the manner that compensation for disability is to be provided and, in combination with Section 59 and 66, the 2005 Board Order and WCB policy, provides the framework for this issue of appeal.
Worker not in receipt of section 59 PPD or PTD benefits at the time of the 2015 COLA
[23] We find that in 2015 the worker was not in receipt of compensation in respect of PPD or PTD pursuant to section 59 of the WCA. Our basis for this is as follows:
[23.1] The worker’s monthly PPD compensation ended upon receipt of the commuted lump sum payment on February 28, 2001. The WCB correspondence confirmed the commuted payment represented the current value of all future monthly pension payments, inclusive of the cost of living adjustments.
[23.2] The WCB correspondence of February 28, 2001 states in part:
“Payment of the lump sum does not affect your right to request a review of your claim, at any time, or to obtain medical treatment related to the accident. However, the payment does mean that you will not receive any future cost of living adjustments.”
[24] The panel notes that the first paragraph of the 2005 Board Order provides that COLAs are applied to the PPD payment (pension) and the dollar value is the adjustment that is applied to the to the worker’s net pre-accident earnings for the purpose of calculating the ELS.
[25] We further note that the first paragraph of the 2005 WCB Board order does not apply to this worker’s circumstances, as the worker was not in receipt of compensation with respect to permanent total disability, or permanent partial disability at the time of the 2015 cost of living adjustment, but was in receipt of an earnings loss supplement.
[26] The panel acknowledges the representative’s argument and interpretation of the WCA section 59, the 2005 Board Order, WCB policy and referenced Court decisions and WCB policy. However, we find no support for this argument in the aforementioned sources.
[27] The representative could not direct the panel, and the panel could not identify, specific wording that provides for the worker’s COLA to be applied to the worker’s net earnings, when the worker was not in receipt of monthly pension benefits in the form of a PTD or PPD.
Worker in receipt of a supplement to bring his post-accident compensation to a level consistent with his pre-accident compensation
[28] We find that the worker was in receipt of a supplement to bring his post-accident compensation to a level consistent with his pre-accident compensation. We rely on the following to support our finding.
[29] On January 1, 2015, the worker received a 1.90% COLA increase, resulting in an increase of his earnings loss supplement by $36.95, for a total ELS of $2,260.24 per month.
[30] We find this calculation aligns with the criteria of Policy 04-04, Part II, Application 4 and Addendum B - Cost-of-Living Adjustments, in that:
[30.1] the worker’s ELS was adjusted as he was not in receipt of compensation in the form of a permanent total disability or permanent partial disability as a result of accepting the commuted lump sum payments,
[30.2] the adjustment was based on the correct Alberta Consumer Price Index formula,
[30.3] the correct 2015 COLA adjustment value of 1.90% was applied,
[30.4] the payment was effective as of January 1, 2015 and
[30.5] the calculation correctly determined the increased amount of adjustment of $36.95 for a total monthly ELS payment of $2,260.24.
[31] The representative argued that the 2005 WCB Board Order provided a mechanism for the annual application of COLA percentages cumulatively to the worker’s “net earnings”. In this case where the worker received his PPD award on a commuted basis. As stated above, we disagree.
[31.1] The panel acknowledges the representative’s argument regarding the change in methodology for the payment of COLA to ELS, which prior to 1994 was to only apply a COLA to pre-accident earnings when calculating the ELS. This approach resulted in an ELS greater than what was prescribed. The WCB Board of Directors addressed this in the 2005 Board Order.
[31.2] The panel had already determined that the first paragraph of the 2005 Board Order does not appear to apply, and that the worker receives zero compensation pursuant to section 59 of the WCA, resulting in zero COLA adjustments applied to his net earnings.
[31.3] We find that the second paragraph of the 2005 Board Order does apply to the worker’s circumstances. This paragraph provides that any COLA adjustment payable to the supplement granted under section 66, is to be applied to the supplement itself. That is, the COLA adjustments are applied to the worker’s ELS payment amount, consistent with the application of the 2015 COLA payment to the worker’s ELS.
[31.4] While the panel acknowledges the representative’s argument that the change to the Alberta minimum wage rate in 2015 resulted in a reduction of the worker’s ELS, this argument is unrelated to the issue of appeal.
[31.5] Although not argued by the representative, we note that in 2018, the worker’s clinical impairment increased by an additional 13.13% for an overall total clinical impairment of 18.3%. Given that the WCB established the effective date of the calculated pension on the additional 13.13% as of June 1, 2018, paid as an additional lump sum of $62,260.40, we find it has no retroactive bearing on the application of the COLA to the 2015 ELS.
Conclusion and Reasons
[32] Given the above, we find the WCB’s application of the 2015 COLA to the worker’s ELS, effective January 1, 2015, was appropriate and in accordance with both the WCA and WCB policy.
Decision - Issue 1
[33] The 2015 Cost of Living Adjustment was appropriately applied by the WCB to the worker’s earnings loss supplement.
[34] The worker’s appeal is denied. The March 30, 2016 decision of the Dispute Resolution and Decision Review Body is confirmed.
Analysis – Issues 2 and 3
[35] Issue 2: Is there new evidence regarding the recalculation and adjustment of the worker’s permanent partial disability pension and subsequent cost of living adjustments, since the date of the accident?
[36] Issue 3: Is there new evidence regarding the recalculation and adjustment of the worker’s earnings loss supplement, since the date of the accident?
Legislation and Policy
[37] The applicable WCA sections and WCB policies are noted below. The panel is bound by the WCA and WCB policies in effect at the time of the WCB Case Manager’s July 13, 2016 decision.
[38] The panel has elected to consider both issues of appeal together, as the same claimed new evidence was used for Issue 2 and Issue 3.
[39] In deciding these issues of appeal, the panel reviewed and considered:
[39.1] the WCA, including sections 13.2(1), 13.2(6) 13.2(6), and 17(3),
[39.2] WCB Policy 01-08, Part I (applicable version August 26, 2015).
[40] Excerpts of applicable WCA sections and WCB policies appear in Appendix “B”.
Questions to be Answered
[41] Given the relevant legislation and policy, the panel must answer the following questions to determine this issue:
[41.1] Is the new information provided consistent with the definition of new evidence as defined by policy?
• If so, is it material; that is, relevant to the issue in question?
• If so, is it substantive; that is, is it new information that was not previously available to the decision maker and could it affect the outcome of the decision?
Key Submissions
[42] The representative’s submissions are summarized as follows:
[42.1] Prior Appeals Commission decisions are new evidence if they are relevant and substantive to the issue and could affect the outcome of a DRDRB decision.
[42.2] A prior Appeals Commission panel (Decision 2016-0302) found that when an administrative review by the WCB identified a substantive error, which was relevant to a previously decided issue, this constitutes new evidence as contemplated under Policy 01-08, as it represents a relevant and substantial decision, which could affect the outcome of other DRDRB decisions. This amounts to relevant new evidence which would allow for the:
• recalculation and adjustment of the worker’s permanent PPD and subsequent cost of living adjustments since the date of the accident; and
• recalculation and adjustment of the worker’s earnings loss since the date of the accident.
[43] The WCB legal counsel’s submissions are summarized as follows:
[43.1] There is no new evidence according to the definition of new evidence under WCB Policy 01-08.
[43.2] Prior Appeals Commission decisions are not new evidence. Findings from Appeals Commission decisions are not new evidence but could form the basis for arguments. However, the referenced Appeal Commission Decision simply restates information already before the decision maker and has no relevance to the pertinent facts of this worker’s claim.
Evidentiary Findings and Reasons
[44] For the following reasons, the panel finds there is no new information consistent with the definition of new evidence as defined by WCB Policy 01-08. We rely on the following to support our finding.
[45] WCB Policy 01-08, Part I, provides direction with respect to “New Evidence” and provides that previous decisions can be reconsidered, amended or rescinded on the basis of new evidence. The definition of new evidence within this policy is that new information that may affect the outcome of a WCB decision must meet two basic criteria to be considered new evidence:
• It must be material. That is, it must be relevant to the issue in question; and
• It must be substantive. That is, it has to be new information that was not previously available to the decision maker and it must be substantive enough that it could affect the outcome of the decision.
[46] The policy further explains that information is not new evidence if it simply summarizes or reformats information already before the decision maker or if new findings could lead to a change in diagnosis pertaining to the worker.
[47] The panel understands the policy to mean that prior Appeals Commission findings would be new evidence only if those findings were specific to the worker and the worker’s issue(s) of appeal before us.
[48] The representative has submitted that policy defines new evidence, stating in part:
“New evidence includes
• health information;
• work-relatedness;
• fitness to work earnings information;
• information about employer operations;
• administrative review findings that identify previous errors or omissions;
• appeal findings; and
• various other relevant facts.”
No appeal findings specific to the worker – administrative review findings
[49] The representative submitted that the findings of several prior appeal panels contained relevant evidence that could affect the outcome of the DRDRB decision. The panel disagrees, for the following reasons:
[49.1] The referenced decision 2016-0302, is not specific to this worker’s claim file. As well, the 2016-0302 decision does not contain “evidence” but rather provides for reasons that supported that panel’s findings.
[49.2] We acknowledge the 2016 panel in the cited case did find that the results of the administrative review conducted, as part of a regular three-year administrative review, was new evidence and they did find an error which could have been material and substantive in that case. However, those facts were relevant to that worker and not the worker that is the subject of this appeal.
[49.3] The panel in our review of the evidence has not identified an “error” arising from a WCB administrative review in this case. Nor has the representative provided this panel with evidence of an error from such a review.
[49.4] The panel notes the representative has not identified an error that is synonymous with the submitted Appeals Commission 2016 decision.
[49.5] While the results of an administrative review may affect the outcome of a WCB decision on a specific worker, we find the representative’s argument in this case to be unsupported, as it would not affect the outcome for this worker as it is not pertinent to the specific facts of this worker’s circumstances.
[49.6] Using reasons from a prior Appeals Commission decision to support a certain point of view or set of beliefs amounts to argument, not evidence. The submission of a previous Appeals Commission decision does not meet the definition of new evidence regarding the criterion of administrative review findings in this case.
Review of submission regarding remaining policy criterion
[50] While we have considered the policy criterion of administrative review findings that identify previous errors or omissions, the panel has considered the remaining policy criteria of health information, work-relatedness, fitness to work earnings information, information about employer operations, appeal findings and various other relevant facts.
[51] As we have stated above, the panel understands that Policy 01-08 means that prior Appeals Commission findings would be new evidence only if those findings were specific to the worker and the worker’s issue of appeal before the decision maker.
[52] Our review of the details of the submitted Appeals Commission decision confirms that it does not contain information that is:
• specific to this worker’s health or the worker’s compensable injuries;
• specific to this worker’s workplace, work duties or overall fitness to work;
• specific to the earnings information of this specific worker;
• specific to the worker’s employer or employer’s operations;
• specific to an appeal related to the claim number associated to the worker and before this panel;
• nor, specific to the evidence or documents contained within the appeal documents package (ADP).
[53] While we have noted the representative’s argument, we are not obligated to follow the authority of prior Appeals Commissions decisions unless their findings are specific to this worker’s claim.
[54] We find there were no other relevant facts or persuasive arguments placed before this panel by the representative in relation to the Appeals Commission decision number 2016-0302 and the remaining criteria contained within the new evidence WCB Policy 01-08, that satisfies the definition of new evidence.
Conclusion and Reasons
[55] Given our finding that the information provided is not consistent with the definition of new evidence under WCB Policy 01-08, there is no need for this panel to determine whether the new information was relevant and sufficiently substantive to have affected the outcome of the October 6, 2016 DRDRB decision with respect to the:
• recalculation and adjustment of the worker’s PPD pension and subsequent COLA since the date of the accident and;
• recalculation and adjustment of the worker’s earnings loss since the date of the accident.
Decision Issue 2 and Issue 3
[56] The provided documents do not constitute new evidence regarding:
[56.1] the recalculation and adjustment of the worker’s permanent partial disability pension and subsequent cost of living adjustments, since the date of accident.
[56.2] the recalculation and adjustment of the worker’s earnings loss supplement, since the date of accident.
[57] The worker’s appeal is denied and the October 6, 2016 Dispute Resolution and Review Body decision is confirmed.
Decision Summary
Issue 1: Was the 2015 cost of living adjustment appropriately applied to the worker’s earnings loss supplement?
[58] The 2015 Cost of Living Adjustment was appropriately applied by the WCB to the worker’s earnings loss supplement.
[59] The worker’s appeal is denied. The March 30, 2016 decision of the Dispute Resolution and Decision Review Body is confirmed.
Issue 2: Is there new evidence regarding the recalculation and adjustment of the worker’s permanent partial disability pension and subsequent cost of living adjustments since the date of the accident?
[60] The provided documents do not constitute new evidence regarding the recalculation and adjustment of the worker’s permanent partial disability pension and subsequent cost of living adjustments since the date of accident.
[61] The worker’s appeal is denied and the October 6, 2016 Dispute Resolution and Review Body decision is confirmed.
Issue 3: Is there new evidence regarding the recalculation and adjustment of the worker’s earnings loss supplement since the date of the accident?
[62] The provided documents do not constitute new evidence regarding the recalculation and adjustment of the worker’s earnings loss supplement since the date of accident.
[63] The worker’s appeal is denied and the October 6, 2016 Dispute Resolution and Review Body decision is confirmed.
This decision is made with the full agreement of the hearing panel.
Decision signed in Edmonton, Alberta on October 5, 2020.
S. Jacobi
Hearing Chair
(on behalf of the panel)
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Hearing Panel: |
S. Jacobi |
– Hearing Chair |
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J. McKenna |
– Commissioner |
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T. Axworthy |
– Commissioner |
Typed by: ab
DEC08D
(20191203)
APPENDIX A
Legislation and Policies Applicable to Issue 1
Workers’ Compensation Act, RSA 2000, c W-15 (the WCA);
Workers’ Compensation 2005 Board Order and WCB Policy
LEGISLATION
Workers’ Compensation Act (current version unless otherwise noted)
Section 6(b) states that the Board of Directors of the WCB is empowered to pass resolutions for the conduct of the business and affairs of the WCB.
Section 13.1(1) establishes the exclusive jurisdiction of the Appeals Commission to hear appeals and to examine, inquire into, hear and determine all matters and questions arising under the WCA and the regulations, in respect of appeals from decisions under section 46 made by a review body appointed under section 45 of the WCA.
Section 13.2(6) provides that the Appeals Commission is bound by the WCB policies relating to the matter under appeal.
Section 24(1) indicates that compensation is payable to a worker who suffers personal injury by an accident.
As the current version of section 59(1) in the WCA addresses 2018 and subsequent years, we revert to the most current applicable section.
Section 59 “Cost of living adjustments” (effective May 27, 2016 to December 14, 2017):
“Cost of living adjustments
“59(1) The Board may by order, for the purpose of maintaining approximate parity with the cost of living, make adjustments in the amounts payable as compensation to persons who are receiving compensation under this Act or any predecessor of this Act in respect of permanent total disability, permanent partial disability or death of a worker.
(2) An order referred to in subsection (1) applies only to persons receiving compensation referred to in subsection (1) on the day specified in the order.
(3) An adjustment is subject to the maximum pension payable under section 56 that is in effect on the day specified in the order referred to in subsection (1).” [Emphasis added]
Section 66(1): (Version: in force from June 1, 2018 to August 31, 2018)
“Increase respecting residual disability
66(1) In the case of an accident causing permanent partial disability, if the Board is satisfied that the worker’s net earnings after the accident together with any compensation the worker is receiving with respect to that accident are less than the worker’s net earnings calculated under section 56 the Board may, in addition to the compensation payable under that section, pay compensation in an amount up to 90% of the earnings loss, according to what percentage of the earnings loss is, in the Board’s opinion, caused by the residual disability.
. . .
(4) Section 59 applies to the net earnings of the worker used in calculating the additional compensation under subsection (1) for earnings loss.”
Section 158(1) provides that the current version of WCA applies to accidents that occur on or after January 1, 1982, unless the WCA specifically states otherwise.
Workers’ Compensation Board Order
The 2005 Board Order reads, in part:
“IN THE MATTER
OF sections 6(b), 59, 65(5) and 66(4) of the
Workers' Compensation Act, R.S.A. 2000, Chapter W-15
BOARD ORDER
Under the authority of section 6(b) of The Workers' Compensation Act, R.S.A. 2000, Chapter W-15 (WCA), the Board of Directors of the Workers' Compensation Board (‘the Board of Directors’) is empowered to pass resolutions for the conduct of the business and affairs of the Workers' Compensation Board (‘the WCB’).
Under the authority of section 59 of the WCA, the WCB may by order, for the purpose of maintaining approximate parity with the cost of living, make adjustments in the amounts payable as compensation to persons who are receiving compensation under the WCA in respect of permanent total disability, permanent partial disability or death of a worker; and the Board of Directors has from time to time, in the exercise of the power under section 59, enacted such Orders.
Sections 65(5) and 66(4) provide that section 59 applies to the net earnings of the worker used in calculating the supplement provided for in those sections.
For the purposes of clarity and certainty, the Board of Directors by resolution orders that:
For the purposes of applying section 59 to the net earnings of a worker in receipt of a section 65 or 66 supplement, the dollar value of the adjustment granted under section 59 in an individual case shall be applied to the net earnings of the worker for the purposes of calculating the supplement; and
For the purposes of applying section 59 to the compensation payable under sections 65 and 66, the adjustments made under section 59, expressed as a percentage, shall be applied to the supplements themselves.
Further, under the authority of section 157 of the WCA, this Order shall have retroactive application to July 1, 1994 to give effect to adjustments made under section 59 prior to the date of this Order to supplements granted under sections 65 and 66.
By order of the Board of Directors of the Workers’ Compensation Board by resolution 2005/05/14, passed at Edmonton, Alberta on May 24, 2005.”
Workers’ Compensation Board Policies
The following Workers’ Compensation Board Policies were effective August 26, 2015, consistent with the WCB case manager’s December 23, 2015 decision.
WCB Policy 04-01, Part I Establishing Net Earnings states:
WCB Policy 04-01 provides that when a compensable disability results in earnings loss, WCB will compensate the worker for the earnings loss, based on confirmed earnings for a period or periods of time that fairly represents the worker’s wage loss or impairment of earning capacity.
“INTERPRETATION
1.0 Compensation for Earnings Loss
Compensation for earnings loss is based on 90% of the worker’s net earnings, calculated in accordance with the Workers’ Compensation Act (WCA) and Workers’ Compensation Regulation (WC Regulation).
If the worker is totally disabled (either temporarily or permanently), WCB pays compensation at 90% of net earnings, subject to the maximum insurable earnings on the date of accident. If the disability is only partial, WCB pays the worker a proportionate amount of 90% of net earnings, based on the degree of disability and WCB’s estimate of the worker’s loss of earning capacity.
WCB will continue to pay compensation for earnings loss for as long as the disability lasts.”
WCB Policy 04-01, Part I also references “Addendum B - Cost-of-Living Adjustments”, which reads as follows:
“COST-OF-LIVING ADJUSTMENTS and LEGISLATED INCREASES1
|
Year |
Effective Date |
% Increase |
|
2020 |
January 1, 2020 |
1.78% |
|
2019 |
January 1, 2019 |
2.41% |
|
2018 |
January 1, 2018 |
1.2% |
|
2017 |
January 1, 2017 |
0.84% |
|
2016 |
January 1, 2016 |
0.81% |
|
2015 |
January 1, 2015 |
1.9% |
|
2014 |
January 1, 2014 |
1.12% |
|
2013 |
January 1, 2013 |
2.13% |
|
2012 |
January 1, 2012 |
0.53% |
|
2011 |
January 1, 2011 |
0.0% |
|
2010 |
January 1, 2010 |
2.20% |
|
2009 |
January 1, 2009 |
4.07% |
|
2008 |
January 1, 2008 |
3.69% |
|
2007 |
January 1, 2007 |
2.13% |
|
2006 |
January 1, 2006 |
1.15% |
|
2005 |
January 1, 2005 |
2.28% |
|
2004 |
January 1, 2004 |
4.0% |
|
2003 |
January 1, 2003 |
1.44% |
|
2002 |
January 1, 2002 |
2.0% |
|
2001 |
January 1, 2001 |
2.99% |
|
2000 |
January 1, 2000 |
1.41% |
|
1999 |
January 1, 1999 |
0.0% |
|
1998 |
January 1, 1998 |
2.1% |
|
1997 |
January 1, 1997 |
1.7% |
|
1996 |
January 1, 1996 |
2.22% |
|
1995 |
|
N/A |
|
1994 |
July 1, 1994 |
2.5% |
|
1993 |
|
N/A |
|
1992 |
January 1, 1992 |
5.0% |
|
1991 |
|
N/A |
|
1990 |
January 1, 1990 |
10.0% |
|
19862 |
July 1, 1986 |
8.0% |
|
1983-85 |
|
N/A |
|
1982 |
January 1, 1982 |
10.0% |
|
1981 |
January 1, 1981 |
20.0% |
|
1980 |
|
N/A |
|
1979 |
July 1, 1979 |
10.0% |
|
1978 |
July 1, 1978 |
6.0% |
|
1977 |
July 1, 1977 |
7.5% |
|
1976 |
July 1, 1976 |
10.5% |
|
1975 |
April 1, 1975 |
11.0% |
1 Prior to 1990 (and
including the 1990 adjustment), cost of living increases were at the discretion
of the government and required legislative amendment. In 1990, the process was
simplified so that legislative amendment was no longer required. In 1995, authority
for cost of living adjustments was fully transferred to the Board and the board
of directors approved an annual COLA indexation formula effective
January 1, 1996. Legislative amendment in 2017 established a revised COLA
formula that came into force on January 1, 2018.
2 The 1986 legislated increase does not apply to temporary disability benefits. Until 1986, the WCA had a provision ([section] 54) that enabled application of legislated increases to temporary disability benefits. The WC Amendment Act 1986 authorized a legislative increase but also rescinded [section] 54, so that the 1986 increase did not apply to temporary disability benefits. This was changed again in 1990, when the WC Amendment Act 1990 added a new section ([section] 53.2), enabling application of the 1990 and subsequent increases to temporary disability benefits.”
WCB Policy 04-01, Part II, Application 4: Cost of Living Adjustments
“1.0 How are cost-of-living adjustments determined?
*Note: The indexation formula in effect for 2014 and future years shifts the time frame from the end of March of the year immediately prior to the end of September. As a result, the COLA calculation for 2014 takes the 18-month period into consideration, rather than the usual 12-month period.
Prior to 1996, cost-of-living adjustments (COLAs) were made on an ad hoc basis, and required either legislative amendment (prior to 1990) or approval of the Lieutenant-Governor-in-Council (from 1990 to 1995).
Effective January 1, 1996, WCB’s Board of Directors approved annual indexation. The annual cost-of-living adjustment, arrived at through the approved formula, is ratified by the Board of Directors prior to its application. Cost-of-living adjustments are applied on the first day of January each year, beginning in 1996.
The indexation formula in effect from January 1, 1996 for calculating COLA up to and including the COLA for 2013 is based on 100% of the change in the Alberta Consumer Price Index for the 12 months ending March 31 of the year immediately prior to the adjustment, less 0.5%.
The indexation formula in effect for calculating COLA for 2014* and future years is based on 100% of the change in the Alberta Consumer Price Index for the 12 months ending September 30 of the year immediately prior to the adjustment, less 0.5%.”
2. Do cost-of-living adjustments apply to all wage loss and dependency benefits?
Cost-of-living adjustments apply to permanent disability compensation and dependency benefits specified in the legislative amendment (on or before January 1, 1990) or Board Order (after January 1, 1990). In addition, cost-of living adjustments are applied to temporary disability benefits under the following conditions:
1. On or before June 30, 1986, cost-of-living adjustments were applied to temporary disability benefits if:
• a worker was temporarily totally disabled or temporarily partially disabled for more than 12 months, or
• more than 12 months had elapsed between the day of the accident and the commencement of temporary total or temporary partial disability which results from the accident.
2. On or after January 1, 1990, cost-of-living adjustments are applied to temporary disability benefits if a worker is receiving compensation for temporary disability 24 months after the date of accident.
In both cases, WCB will adjust the compensation by the same percentage as if the worker has been permanently totally disabled at the time of the accident.
The cost-of-living adjustment does not apply to wage-loss allowances paid when a worker is called in for a WCB-directed or approved medical assessment. Refer to Policy 04-02, Temporary Benefits, for further information on this type of allowance.
Refer to Addendum B, Cost-of-living Adjustments, for a list of approved cost-of-living adjustments since April 1, 1975.
3. Are cost-of-living adjustments subject to the maximum insurable earnings?
The adjusted compensation rate (original compensation rate plus cost-of-living adjustment) cannot exceed the equivalent compensation based on the maximum insurable earnings in effect on the date of the adjustment.”
4. When is this policy application effective?
This policy application (Application 4 – Cost-of-Living Adjustments) is effective January 1, 2013, except when noted otherwise in a specific policy section.”
WCB Policy 04-04, Part I, Permanent Disability states:
“POLICY:
When a compensable accident results in permanent disability, WCB provides permanent disability benefits to the worker for any measurable permanent clinical impairment and for any permanent impairment of earning capacity attributable to the compensable injury.
. . .
INTERPRETATION
. . .
4.0 Permanent Disability Benefits
The method of calculating permanent disability benefits was revised effective January 1, 1995, and depends on whether the date of accident was before January 1, 1995, or on or after January 1, 1995.
. . .
Injuries Occurring before January 1, 1995
When an accident occurred before January 1, 1995, WCB provides the following permanent disability benefits:
1) when there is a permanent clinical impairment
• a permanent disability award in the form of a pension, to compensate the worker for the permanent clinical impairment and assumed loss of earnings, and
• consideration of an earnings loss supplement if the actual loss of earning capacity due to compensable permanent work restrictions exceeds the value of the permanent disability award.
2) when there are compensable permanent work restrictions with no measurable permanent clinical impairment,
• consideration of an earnings loss supplement if the compensable permanent work restrictions impair the worker’s earning capacity.
Injuries Occurring from January 1,1985 to December 31, 1994
When an accident occurred during the period of January 1, 1985 to December 31, 1994 inclusive, the worker may also be eligible for a Permanent Injury Award (PIA).
A PIA is intended to provide compensation for accidents resulting in serious and permanent disfigurement or other permanent injury that, in WCB’s opinion, the worker is not already appropriately compensated for, and for which WCB has no other means to compensate the worker. In most cases it is paid as a lump sum.”
WCB Policy 04-04, Part II (August 26, 2015 Version)
“APPLICATION 4: INJURIES PRIOR TO JANUARY 1, 1995
1. What is a Permanent Disability Award, and who is eligible for it?
A permanent disability award is a pension which includes compensation for permanent clinical impairment and assumed permanent loss of earning capacity resulting from the clinical impairment.
The pension is based on a medical determination of the extent of the compensable clinical impairment. WCB uses the WCB-approved rating schedule (see Appendix D) as a guide to determine the extent to which the compensable clinical impairment impairs or may impair earning capacity, and expresses that impairment as a percentage of disability.
Workers are eligible for a permanent disability award when they have a permanent clinical impairment due to a compensable accident which occurred on or before December 31, 1994.
2. How is the pension amount determined?
The pension is calculated as a proportion of permanent total disability. The pension for permanent total disability is based on 90% of the worker’s annual net earnings at the time of the accident, calculated in accordance with the WCA and WC Regulation. Partial permanent disability pensions are a proportion of that amount, based on the degree of disability. For example, a worker with a permanent partial disability of 20% would receive a pension equal to 20% of 90% of annual net earnings.
The pension is subject to minimum and maximum amounts, as ordered by the WCA and the Board of Directors. Pensions may be adjusted by cost-of-living increases, as set out in the WCA or ordered by the Board of Directors.
. . .
10. When is this policy application effective?
This policy application (Application 4 – Injuries Prior to January 1, 1995) is effective July 1, 2003, except when noted otherwise in a specific policy section(s).”
Appendix B
Legislation and Policies Applicable to Issues 2 and 3
Legislation
[64] Workers’ Compensation Act.
“Power of Appeals Commission
13.1(1) Subject to sections 13.2(11) and 13.4, the Appeals
Commission has exclusive jurisdiction to examine, inquire into, hear and determine all matters and questions arising under this Act and the regulations in respect of
(a) appeals from decisions under section 46 made by a review body appointed under section 45
. . .
(d) any other matters assigned to it under this or any other Act or the regulations under this or any other Act,
and the decision of the Appeals Commission on the appeal or other matter is final and conclusive and is not open to question or review in any court.
Appeals
. . .
13.2(6) In the hearing of an appeal under this section, the Appeals Commission
. . .
(b) is bound by the board of directors’ policy relating to the matter under appeal,
. . .
Jurisdiction of the Board
17(1) Subject to section 13.1, the Board has exclusive jurisdiction to examine, inquire into, hear and determine all matters and questions arising under this Act or the regulations and the action or decision of the Board on such matters and questions is final and conclusive, and is not open to question or review in any court.
. . .
17(3) The Board has authority to reconsider any matter that it has dealt with and to rescind or amend any decision or order previously made by it.
WCB Policies
The panel relies upon the WCB policy as was in effect at the time of the July 13, 2016 WCB Case Manager’s decision.
WCB Policy 01-08, Part I
“Policy:
WCB will consider any new evidence and, if appropriate, amend or rescind its previous decision. The effective date of the amended decision depends on the nature of the decision.
This policy is effective June 1, 2010, and applies to all decisions and administrative reviews on or after that date, except when noted otherwise in a specific policy section(s).
INTERPRETATION
1.0 New Evidence
New Evidence is new information that may affect the outcome of a workers’ compensation decision. It must meet two basic criteria:
1. the evidence is material (relevant) to the issue in question
2. the evidence is substantive – it gives new information that was not previously available to the decision maker and could affect the outcome of the decision
Information is not new evidence when it simply summarizes or reformats information that was considered by the decision maker when the decision was made. For example, a medical report is not new evidence if it consists of the same clinical findings, by the same or another physician, already taken into account by the decision maker. A medical report may be new evidence if, for example, new clinical findings lead to a change in diagnosis.
New evidence includes
• health information;
• work-relatedness;
• fitness to work earnings information;
• information about employer operations;
• administrative review findings that identify previous errors or omissions;
• appeal findings; and
• various other relevant facts.
The principles of fairness and natural justice generally require that WCB considers all relevant evidence, new or otherwise, when reviewing a decision. However, WCB expects that interested parties will make all reasonable efforts to provide all relevant information when the initial decision is made. If new evidence was reasonably available to the party at the time of the initial decision, WCB will take into consideration why the information was not provided at the time. Depending on the circumstances, WCB may decide not to accept the information as new evidence.”