An Alberta worker has successfully appealed a decision by the Workers’ Compensation Board (WCB) to reduce her economic loss payment (ELP) earlier than warranted after discovering her birth date was incorrectly recorded. The Appeals Commission for Alberta Workers’ Compensation ruled that the worker’s corrected birth certificate constitutes new evidence, affecting the timing of her reduced benefits.
The worker, identified as T.H., injured her left shoulder in February 2011 while employed as a building caretaker and cleaner. The WCB accepted responsibility for her injury and provided compensation, including an ELP to offset her loss of earnings due to permanent work restrictions.
Typically, the WCB reduces an ELP at age 65 to reflect the standard retirement age and the associated decrease in earnings. However, WCB policy allows for an unreduced ELP past age 65 if there is “sufficient and satisfactory evidence, including independent evidence, that the worker would have continued to work past this age if the injury had not occurred.”
Working to age 75
For several years, the WCB accepted that T.H. intended to work until age 75, continuing her unreduced ELP accordingly. On April 12, 2023, the WCB decided to reduce her ELP effective May 1, 2023, based on the understanding that she would turn 75 on April 28, 2023. The WCB concluded that T.H. had not provided satisfactory evidence that she planned to work beyond age 75.
T.H. and her representative contested this decision, arguing that she planned to work until age 77 due to economic factors and the rising cost of living. They sought to have her unreduced ELP extended accordingly. However, on September 8, 2023, the Dispute Resolution and Decision Review Body (DRDRB) upheld the WCB’s decision, stating that T.H. did not provide satisfactory evidence to support her intention to work beyond age 75.
Incorrect birth date
After the DRDRB’s decision, T.H.’s representative discovered that her date of birth had been incorrectly recorded. A corrected birth certificate showed her birth date as April 28, 1949, not 1948. This meant she would not turn 75 until April 2024. The representative argued that her unreduced ELP should continue until then, with the reduction effective May 1, 2024.
On April 16, 2024, the DRDRB declined to reconsider its previous decision, stating that the new birth certificate did not meet the criteria for new evidence under Policy 01-08. The DRDRB concluded that the information would not have affected its September 8, 2023 decision.
T.H. appealed to the Appeals Commission, which considered two issues: whether the corrected birth certificate was new evidence under Policy 01-08, and whether she was entitled to an unreduced ELP beyond age 75.
Regarding the first issue, the Appeals Commission found that the birth certificate is indeed new evidence. “We find that the birth certificate is both relevant and substantive because it would have changed the effective date of the reduced ELP,” the Commission stated. It noted that the incorrect birth date directly impacted the timing of the benefit reduction.
The Commission criticized the DRDRB for recharacterizing the issue, saying, “We do not think it was appropriate to have recharacterized the issue in that way, based on our reading of the material as a whole.” The Commission reversed the DRDRB’s April 16, 2024 decision, allowing the corrected birth certificate to be considered as new evidence.
On the second issue, the Appeals Commission granted T.H.’s appeal in part. While it agreed that her ELP should not have been reduced effective May 1, 2023, it did not find sufficient evidence to extend the unreduced ELP beyond her 75th birthday in April 2024. “We confirm the DRDRB’s finding that there is not sufficient and satisfactory evidence, including some independent evidence, to show that the worker would have continued to work past age 75 if the injury had not occurred,” the Commission stated.
At the appeal hearing, T.H. and her representative focused solely on correcting the effective date of the ELP reduction, no longer arguing for an extension beyond age 75. The Commission noted, “We also did not find that the weight of evidence in the material before us supported that the worker planned to work beyond age 75.”
The Commission’s decision means that T.H.’s unreduced ELP will continue until April 2024, with the reduction taking effect on May 1, 2024. “We find that it is appropriate to reduce the worker’s ELP effective May 1, 2024,” the Commission concluded.
For more information, see Decision No.: 2024-0527, 2024 CanLII 115249 (AB WCAC).
