The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A Non oral file review was held on April 2, 2002, at the request of a worker advisor, acting on behalf of the claimant.

Issue

Whether or not the worker is entitled to payment of full wage loss benefits for the period of January 5, 2000 to May 5, 2000.

Decision

That the worker is not entitled to payment of full wage loss benefits for the period of January 5, 2000 to May 5, 2000.

Decision: Unanimous

Background

On June 27, 1997, the claimant was unloading proboard sheets from a truck when he felt something "pop" in his left shoulder. The claimant reported injuries to his left shoulder, neck and back. The Workers Compensation Board (WCB) accepted the claim for compensation and benefits were paid accordingly.

In early May 2001, the claimant met with a WCB case manager and a vocational rehabilitation consultant. The claimant advised that he had been in receipt of benefits through the Ontario WCB for the period of January 5, 2000 to May 5, 2000 due to knee surgery, which was unrelated to the Manitoba claim.

On May 30, 2001, the WCB case manager provided the claimant with an explanation as to how his benefit entitlement had been determined. The claimant was advised that the Manitoba WCB was suspending his benefits for the period of January 5, 2000 to May 5, 2000 due to his undergoing surgery for a condition unrelated to his compensable left shoulder injury.

The case manager noted that she was going to contact the Ontario WCB to confirm details regarding the nature of benefits that were paid to the claimant and once this information was obtained, a recalculation of the claimant's benefits would be undertaken.

On June 5, 2001, a worker advisor asked the WCB to confirm what section of The Workers Compensation Act (the Act) or WCB policy supported the deduction of the claimant's Ontario compensation benefits from his Manitoba claim payment. The worker advisor stated that "collateral benefits are other benefits received from other sources for the same disabling condition." (emphasis hers)

In a response to the worker advisor's query dated June 13, 2001, the WCB's case manager indicated that Section 39(2) of the Act supported the deduction noted above. The case manager stated, in part, "This section indicates that wage loss benefits are payable until the loss of earning capacity ends, as determined by the Board. If the claimant was in receipt of wage loss benefits from another source, in this case, the Ontario Workers Compensation Board, Mr. [the claimant] would not be entitled to full wage loss benefits for this time period as there was no loss of earning capacity. Depending upon the amount of benefits he received, he may, however, be entitled to partial wage loss benefits."

On June 20, 2001, the worker advisor disagreed with the case manager's decision of June 13, 2001. The WCB confirmed that no change would be made to the original decision of July 9, 2001. The case was then referred to Review Office for further consideration.

In a decision dated January 4, 2002, Review Office determined that full wage loss benefits were not payable for the period January 5, 2000 to May 5, 2000 inclusive. Review Office indicated that a final determination regarding whether or not any partial wage loss benefits were payable to the claimant would be considered pending receipt of confirmation from the Ontario WCB regarding the money paid to the claimant during this period of time.

Review Office felt that the decision of May 30, 2001 was logical and responsible to the foundation of the Act. The claimant's lost earning capacity had already been compensated by a source outside the Manitoba WCB and therefore there should be no claim for wage loss benefits made to the Manitoba WCB. On February 5, 2002, the worker advisor appealed Review Office's decision and a non-oral file review was arranged.

Reasons

As the background notes indicate, it came to the attention of the WCB in May 2001 that the claimant had received compensation benefits from another jurisdiction, namely Ontario, during the period of January 5th, 2000 to May 5th, 2000. Apparently, these benefits were paid to the claimant as a consequence of required knee surgery, which became necessary following the compensable accident in that jurisdiction. The claimant, through his worker advisor, advanced the argument that there was no basis in either the Act or the WCB policy, which allowed the WCB of Manitoba to deduct benefits received from another jurisdiction's compensation plan. In other words, the claimant's loss of earning capacity had not ended with respect to the Manitoba claim and therefore the claimant should be entitled to full wage loss benefits irrespective of his involvement with the Ontario compensation system.

We do not agree or accept this reasoning. The claimant's loss of earning capacity during the period of January 5th, 2000 to May 5th, 2000 was clearly a consequence of his Ontario compensable injury. The knee surgery performed in January 2000 had absolutely no relationship to the Manitoba accident.

Section 4(2) of the Act provides that "no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens". The Act further states that wage loss benefits are payable until the loss of earning capacity ends, as may be determined by the WCB.

In our view, the claimant did not sustain a loss of earning capacity during the period in question as a result of the Manitoba accident. Clearly, it would be a case of unjust enrichment should the claimant receive full wage loss benefits from both Manitoba and Ontario over the same four-month period. Accordingly, the claimant's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
P. Challoner, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 10th day of May, 2002