Highlights of Noteworthy Decisions

Decision 271 23
J. Smith - G. Burkett - S. Roth
  • Supplements, transitional provisions (permanent) (retirement)

The issue under appeal was whether the worker had entitlement to s.147(4) supplementary benefits following his retirement in November 2017.

The appeal was denied.
In this case, the worker had returned to work following the 1988 accident at no wage loss and later retired. OPM Document No. 18-07-10 contemplates this very scenario in its retirement provision. The retirement provision indicates that a worker may be entitled to a supplement provided that the "circumstances arising from the permanent impairment have changed." The policy then goes on to indicate that if the worker's job is eliminated and/or their permanent disability worsens, in addition to their increasing age, entitlement to a supplement may be in order.
The Panel also recognized the more general requirement set out in OPM Document No. 18-07-10: to consider a worker for a s.147 supplement, the decision-maker must ensure that the worker's wage loss is at least partially related to the work injury. However, if there is no worsening of their permanent disability or elimination of their job, then the worker could have continued to work at no wage loss as they were prior to retiring. The subsequent decision to retire means the wage loss sustained is the result of a personal choice and is not at least partially related to the work injury.
The Panel found that the worker's low back impairment did not worsen in 2017 when the worker decided to retire. The evidence must demonstrate that a change in the permanent impairment, in this case a worsening, resulted in the decision to retire. This was not demonstrated in this case. The medical evidence indicated that the worker continued to be able to work in some employment, and could have, had he chosen to do so, worked at no wage loss in another position with the accident employer. By his own testimony, he did not pursue this option as he wanted only to work as a traffic officer. The traffic officer position also remained available to the worker at no wage loss at the time he retired, along with other positions that were also available at no wage loss. The worker had a choice to continue working at no wage loss, but instead chose to retire, which resulted in a wage loss in that his full pension was less than his earnings. The Panel found that this resulting wage loss was the result of a personal choice and not the result of the workplace injury in the manner contemplated in OPM Document No. 18-07-10, as it did not result from a change in the circumstances arising from his permanent disability. Accordingly, the worker was not entitled to s.147(4) supplementary benefits following his retirement in 2017.