Written by: Sarah O’Leary, WELLS Director
In the summer of 2020, the NDP government introduced a number of changes to the Workers’ Compensation Act (The Act). One of those changes was to make it easier for people to have their Workers’ Compensation pensions extended beyond age 65 if they would, in fact, have worked past age 65 had they not been injured.
I believe that their intentions were good; that their goal was to make it easier for these injured workers.
Unfortunately, their plan backfired. In a BIG way. The language that was drafted into the amendments to the Workers’ Compensation Act not only didn’t help injured workers, it made a 180 degree change to The Act, virtually preventing the most seriously disabled workers from ever being able to extend their pensions!
How did this massive blunder occur?
Before the NDP changes of 2020, the Workers’ Compensation Act provided that the basic retirement age is 65. However, it stated that a worker in receipt of a WCB pension could ask the WCB to extend their pension later than age 65 if the worker could convince the WCB that they planned to work beyond that age.
If you planned to work until you were 75, but then were seriously injured on the job and just couldn’t continue to work after your injury, it would not be fair for you to have your Workers’ Compensation pension ended at age 65. It was only because of the injury that you stopped working earlier, and so the WCB pension should compensate you for all those years of earnings you could not longer make.
This could apply, as well, to someone who went back to work with a partial pension, and who struggled to work everyday. This person might make it to 65, but wouldn’t reasonably plan to work longer as her disability was just too much of an impediment. If she could convince the WCB that she would have worked longer, had she not been injured, she could have her pension extended.
The question the WCB asked was, “Before your injury, how long had you planned to work?” It was not ideal, but at least it gave injured workers a chance to convince the WCB they should be compensated for their lost time working.
As of January 1st 2021, that is all changed.
The amendments to the Workers’ Compensation Act are contained in s. 190(3) which states:
(3) A determination made under subsection (1) (a) (ii) as to a date on which a worker would retire after reaching age 65 may be made after a worker has reached age 63, and the Board may, when making the determination, consider the worker’s circumstances at the time of that determination.
I believe that the government thought this would make it easier for workers to prove that they would have worked longer, since they were closer to age 65.
Under the old system, it was very problematic for younger workers to convince the board that they would have worked past 65 because the Board just said that this date was so far into the future that the worker could not reliably say whether they would have worked past age 65 or not. So, younger workers rarely ever got extensions of their pensions.
Someone, somewhere, thought that if the issue were addressed closer to the date of the proposed termination, it would be better for the worker.
Well, that’s not how the WCB interpreted it. The WCB has taken the permissive statement in the Act and turned it on its head. The new policy now set out in Chapter C6-41.00 of the Rehabilitation Services and Claims Manual says:
If the Board is satisfied that a worker would work past age 65, permanent disability periodic payments may continue past that age until the date the Board has established as the worker’s retirement date. (Emphasis added)
In other words, the WCB now decides at age 63 whether the worker “would work” past age 65. Not whether they would they have worked past age 65 but for the injury.
The policy now expressly says that the WCB MAY take their present circumstances into consideration; that is, the question becomes not what the worker would have done if he were not injured, but what he WILL do, now, at age 63.
So, incredibly, this is how it now stands:
Maisie had a knee injury in 2011, at age 53. She got a 10.25% permanent functional impairment award for that. After extensive rehabilitation, she was able to return to work at her pre-injury job at a warehouse. She finds it a bit hard on the knee, but she is able to do her job without significant problems. At age 63, she gets a letter from the WCB asking her if she plans to work past age 65.
Maisie writes back and says that she has always planned to work until she is 72. Her mortgage will be paid off then, and her two children will be finished university and she won’t be having to help them out any longer. She encloses letters from a few friends and co-workers who describe conversations they have had with Maisie over the years in which they discussed their plans, and Maisie explained that she needed to keep working until she was 72. She also encloses her mortgage statement.
This is enough to convince the disability awards officer that Maisie WILL WORK until she is 72. Her pension is extended to that date.
Harold, on the other hand, was a construction worker who was severely injured in a workplace injury in 2011, also aged 53 at the time. He suffered significant head trauma and a broken back. He is able to get about now with a cane, but was too disabled to ever go back to work. He got a 41% permanent functional impairment award and a loss of earnings pension to top it up as he was never able to work again.
Harold produces the same evidence as Maisie: mortgage not yet paid off and two kids in university that he tries to help out. He always planned to work to age 72 for that reason, and, like Maisie, he also produces several letters and financial documentation establishing his intention to work until age 72.
Harold has the same evidence as Maisie that he INTENDED TO WORK to age 72. But now, under the system as the WCB interprets it, Harold will be turned down. Why? Because he was so severely injured that he can’t work at all!
Tough luck Harold. WCB will not fully compensate workers who are extremely disabled from their workplace injury!
The WCB says, “Well, when the test was what did you intend to do before you were injured, you might have convinced us, but now, that doesn’t matter!
What matters now (the way the WCB chooses to interpret the legislation), is what you WILL DO. That rules out Harold and the rest of the most severely disabled workers in our province. The WCB says, “You are too disabled to work. Too bad, so sad. No extended pension for you!”
Nice one. How NOT to write legislation and policy. It’s as if the government really doesn’t know or want to know how simple words in the Act will be used by the WCB against workers, despite 3 reports. And it’s if the WCB can’t resist an opportunity to save more money on the backs of the most severely injured workers. This interpretation by the WCB is insulting and regressive. It punishes the most horribly disabled of injured workers. You couldn’t make this stuff up.
Tell your MLAs, write the premier, express your outrage to the WCB. We can’t allow this to stand in our province.
Originally published on the Worker Education website by former WELLS Director Sarah O’Leary.
Sarah is a lawyer who has represented injured workers for many years. In 2017, she established the law firm of Harrison O’Leary, with Rolf Harrison, and comments on WCB policy and practices and represents injured workers at all levels. She continues to offer WCB courses through VDLC and was a Director of WELLS.
Sarah O’Leary email@example.com
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