- Supplements, transitional provisions (benefit from rehabilitation)
The issue under appeal was whether the worker was entitled to supplementary benefits under section 147(4) of the pre-1997 Workers' Compensation Act (the pre-1997 Act) (or section 135(4), the predecessor provision) from 1991.
The appeal was allowed in part.The worker's representative submitted that the Board did not have the legislative authority nor the jurisdiction to revoke their original decision of April 3, 1991, which had initially granted entitlement to a section 147(4) supplement as of March 1, 1991, as there was no flaw in the initial decision. Second, as an alternative argument, the worker's representative submitted that the worker should be entitled to a section 147(4) supplement on the basis that at the completion of her WT plan (effective September 1, 1993), the worker had no reasonable prospect of being able to approximate her pre-injury earnings, and was never able to do so.The Vice-Chair came to a different conclusion on the first issue. It was noted that the Board did not rescind the worker's entitlement to section 147 benefits as suggested by the worker's representative, but rather, reconsidered their original decision and replaced the section 147(4) supplementary benefit with a temporary supplement under section 147(2). The Vice-Chair found that the Board had the legislative authority and jurisdiction to reconsider their original decision of April 3, 1991, and grant the worker entitlement to section 147(2) benefits instead of section 147(4) benefits from March 1, 1991 to September 1, 1993, while she participated in a WT plan.The Vice-Chair agreed with the Vice-Chair in Decision No. 1068/16 that section 147 "is a complete code to deal with supplementary benefits and must be considered as a whole", and as such, found that the worker would not be entitled to supplementary benefits under section 147(4) from March 1, 1991, noting that the worker received a temporary supplement under section 147(2) from March 1, 1991 to September 1, 1993. As there was no dispute that the worker was participating in the WT program from March 1, 1991 to September 1, 1993, awarding a section 147(2) benefit rather than a section 147(4) benefit was also consistent with the Act and Board policy.Turning to the issue of the worker's entitlement to supplementary benefits under section 147(4) from September 1, 1993, entitlement was also granted. The Vice-Chair found that the worker's earning capacity after participating in a WT plan and receiving a supplement under section 147(2) did not increase to the extent that the worker's total potential earning capacity approximated her escalated pre-injury earnings, nor did the WT plan provide the worker with a competitive ability to find remuneration in the open labor market.The Vice-Chair noted that Section 147(7) unequivocally states that supplementary benefits under section (4) shall continue until the worker becomes eligible for old age security benefits (i.e., usually age 65). The worker turned 65 in 2016. Furthermore, section 147(13) indicates that the Board shall review a supplement given under subsection (4) in the 24th month and 60th month following the award and recalculate the amount of the supplement. As such, the worker would continue to have entitlement to supplementary benefits under section 147(4) from September 1, 1993 onwards. The worker's entitlement would have ended on her 65th birthday in 2016. This would also mean that the worker would continue to have entitlement to section 147(4) supplementary benefits through the 24th and 60th month following the award, subject only to the relevant adjustments to the calculation as set out in section 147(10). Therefore, the worker was found to be entitled to a section 147(4) supplement as of September 1, 1993. It was referred back to the Board to determine the precise amount of the section 147(4) supplement.