The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing several decisions made by the Workers Compensation Board ("WCB")regarding his entitlement to wage loss benefits during different time periodsin 2014.  A hearing was held viateleconference on May 26, 2015 to consider these matters.

Issue

Whether or not the worker has been overpaid wage loss benefits for the period August 29, 2014 to September 5, 2014; and

Whether or not the worker is entitled to wage loss benefits from August 29, 2014 to December 1, 2014.

Decision

That the worker has been overpaid wage loss benefits for the period August 29, 2014 to September 5, 2014; and

That the worker is entitled to wage loss benefits from November 1, 2014 to December 1, 2014, less any wages earned by reason of casual employment during this period.

Decision: Unanimous

Background

On June 10, 2014, the worker suffered an accident when the tractor he was driving rolled into a ditch. His injuries included a collapsed lung, dislocated rib, spinal injuries, multiple internal injuries and a left shoulder injury. The claim for compensation was accepted based on the following diagnoses: left pneumothorax, left renal contusion, spleen contusion, left shoulder, cervical and thoracic sprain/strain. In a telephone conversation with a WCB adjudicator on July 8, 2014, the worker reported that he was not having issues with his internal injuries but his left shoulder was continuing to pop out of place.

On July 2, 2014, the worker saw a chiropractor for treatment and was diagnosed with a left acromioclavicular ("AC") joint sprain/strain, left sternoclavicular joint sprain/strain, left glenohumeral joint sprain, multiple rib sprain/strains and subluxation in the neck and upper/lower back.

In a chiropractor's progress report dated August 26, 2014, it was reported that the worker's left shoulder was still painful on movement and that range of motion in his cervical, thoracic and lumbar spines had improved. The chiropractor stated: "The return to work has been delayed due to heavy rains...expects to return on or about the 29th of August. Once the return to work, attendance for care will only be when he is able due to working from dawn to dusk. So frequency will be affected."

On September 17, 2014, the WCB advised the worker that he was overpaid compensation benefits in the amount of $652.08 for the period August 28, 2014 to September 5, 2014 and he was responsible for repaying the full amount. The overpayment was due to the worker being cleared for regular duties by his chiropractor as of August 28, 2014 and being paid compensation benefits to September 5, 2014.

On October 28, 2014, the worker advised the WCB that he was working on the family farm as the WCB stopped paying his wage loss benefits. The worker indicated that his left shoulder still goes out and he had no power in his arm.

In a chiropractor's progress report dated October 28, 2014, it was reported that the worker complained that his left shoulder dislocated when he lifts. The chiropractor noted that the treating practitioner had been unable to reproduce the dislocation of the shoulder but it was established that the worker had decreased strength and range of motion on presentation. The worker's neck, upper back and lower back were approximately at pre-injury status.

By letter dated October 29, 2014, the treating chiropractor was advised that the WCB was only authorizing chiropractic treatment to December 5, 2014 inclusive.

In a November 25, 2014 progress report, the chiropractor reported that the worker returned to work as an ambulance attendant. The worker reported increased pain in his left shoulder but it did not affect his work performance. The left shoulder range of motion had improved and there was mild swelling in the left AC joint.

On December 2, 2014, the worker saw a second chiropractor for treatment and was diagnosed with chronic left rotator cuff/bicipital tendinitis. In a further progress report of December 9, 2014, it was reported that the worker may have a tear in the rotator cuff complex and an MRI was suggested.

On December 17, 2014, a WCB chiropractic advisor reviewed the file information and opined that the worker had reached maximum therapeutic benefit with respect to chiropractic treatment. If the worker was having ongoing difficulties related to the June 10, 2014 incident, he should consider alternate therapies for an opinion.

On December 17, 2014, the WCB advised the treating chiropractor that responsibility for ongoing chiropractic treatment was not deemed beneficial beyond December 17, 2014.

On January 4, 2015, the worker advised the WCB that he may have a rotator cuff tear and that the WCB should reinstate his benefits.

On January 25, 2015, the initial treating chiropractor reported that the worker was not at his pre-injury status and that he may have a rotator cuff tear. The chiropractor noted that the worker was being referred to an orthopedic specialist and that the worker required chiropractic treatment once a week until he had an MRI.

On January 28, 2015, the treating orthopedic surgeon reported that the worker's right shoulder was worse than the left and that the worker would be seen again after an MRI assessment.

By letter dated January 20, 2015, the worker was advised that he was not entitled to benefits beyond August 28, 2014 and that the WCB would review the MRI and specialist results when they became available.

On February 19, 2015, Review Office determined that the worker was overpaid wage loss benefits from August 29, 2014 to September 5, 2014 on the basis that he was medically declared fit to return to his pre-accident duties as a farm-hand and therefore did not have a loss of earning capacity during this time period.

Review Office also determined that the worker suffered a loss of earning capacity beyond December 2, 2014 with respect to this shoulder condition based on medical information from the second treating chiropractor and the treating orthopedic surgeon.

Review Office also found that the worker was entitled to chiropractic treatment for January 5, 2015 only in relation to his compensable left shoulder injury and that any proposal for other treatment would be dependent upon the MRI results and recommendations of the consulting orthopedic surgeon.

On March 11, 2015, the worker filed an appeal with the Appeal Commission with respect to the Review Office decision that he was overpaid wage loss benefits for the period August 29 to September 5, 2014 and that he was not entitled to wage loss benefits for the period August 29 to December 1, 2014.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

The worker has an accepted claim for injuries suffered in a tractor accident on June 10, 2014.

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. Subsection 39(1) of the Act provides that wage loss benefits will be paid “… where an injury to a worker results in a loss of earnings capacity …” Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earnings capacity ends, or the worker attains the age of 65 years. Subsection 27(1) of the Act provides that the WCB “… may provide a worker with such medical aid as the board considers necessary to cure and provide relief for an injury resulting from an accident.”

Worker’s Position

The worker participated by teleconference.

The worker advised that he had not worked from the date of the accident (June 10, 2014) until the end of August 2014. A report submitted by the worker’s chiropractor stated that he would be fit to return to regular duties effective August 28, 2014. The worker however took personal days on August 27 and 28 and consequently, was not available for work on those days. The worker’s possible return to his pre-accident employer was further delayed due to rain, so that there was no work available with that employer from August 29 to September 5. The worker then took further personal leave on September 6 and 7, and was therefore unavailable to work on those days.

The worker never did return to his pre-accident employer. His failure to do so was explained in his statement of appeal, where he stated “Once I was cleared for regular duties, I didn’t go back to my accident employer as it was harvest time on the family farm.” The worker was however paid wage loss benefits during the period from August 29 to September 5, 2014. Wage loss benefits were then discontinued at that point.

The worker’s contract of employment with the pre-accident employer did not expire until October 31, 2014. The worker stated that he worked for his father on the family farm for approximately one month during September and October of 2014. He was doing light duties including seeding, planting, fixing equipment, and caring for animals. He advised that he was not paid for that work except that his father gave him money to pay his bills when needed. The worker also advised that he had cut and sold approximately four cords of wood during that time frame.

The worker had been working as a casual ambulance attendant prior to his injury, and had been doing so for approximately 4 and a half years. There had been enough hours available that he was able to work basically full time prior to accepting seasonal employment with the pre-injury employer. However, the injury that he sustained precluded him from lifting stretchers, and he was therefore unable to return to that work prior to December 1, 2014.

The worker did however work on a casual basis for a safety company that provides safety services on oil sites. He worked for four or five twelve hour casual shifts in mid-November, and then for another three or four such shifts at the end of that month. December 3, 2014 was his last such work date. The work that he did was basically of a stand-by nature, but it was sufficiently strenuous that the employer was not prepared to provide further work until the worker’s physical recovery was such that he could fully perform the duties of that position.

On December 2, 2014, the worker attended a second chiropractor who diagnosed a chronic left rotator cuff and bicipital tendonitis. Based on her findings, the worker’s wage loss benefits were reinstated on December 1, 2014.

Employer’s Position

The employer did not participate in the hearing.

Analysis

There are two issues before the panel:

Issue 1: Whether or not the worker has been overpaid wage loss benefits for the period August 29, 2014 to September 5, 2014, and

Issue 2: Whether or not the worker is entitled to wage loss benefits from August 29, 2014 to December 1, 2014.

Issue 1: Whether or not the worker has been overpaid wage loss benefits for the period August 29, 2014 to September 5, 2014.

In order for the worker’s appeal to be successful on this issue, the panel must find that the worker continued to sustain a loss of earnings capacity as a result of his workplace injury during the period from August 29, 2014 to September 5, 2014. The panel was not able to make this finding.

In that regard, the worker was declared medically fit to return to his pre-accident duties as a farm hand. The farm the worker was to begin his return to work had experienced a delay in harvesting due to heavy rains and as such, no work was available to him for reasons not related to the compensable injury. He elected however to work for his father on the family farm. He had therefore recovered from the workplace accident to the point that it was no longer contributing, to a material degree, to a loss of earning capacity. Consequently, there was no entitlement to wage loss benefits during this period. The worker was therefore overpaid wage loss benefits for the period from August 29, 2014 to September 5, 2014.

Issue 2: Whether or not the worker is entitled to wage loss benefits from August 29, 2014 to December 1, 2014.

In order for the worker’s appeal to be fully successful on this issue, the panel must find that the worker continued to sustain a loss of earning capacity throughout this period. The panel was not able to make this finding.

During the period from August 28, 2014, to the end of worker’s employment contract on October 31, 2014, the worker was medically fit to return to his pre-injury duties with his pre-accident employer. He elected not to do so. Consequently, during the remaining period of his contract of employment, the workplace accident was not contributing, to a material degree, to a loss of earnings capacity. There was therefore no entitlement to wage loss benefits during the period from August 28, 2014 to October 31, 2014.

The evidence nevertheless satisfies the panel that the worker’s ongoing shoulder injury prevented him from working throughout the month of November, and to that extent, there is a loss of earning capacity. Accordingly, the worker is entitled to receive wage loss benefits from November 1, 2014 to December 1, 2014. From this is to be deducted the wages that the worker received from other casual employment during that period. On this issue, the worker’s appeal is partially sustained.

Panel Members

D. Kells, Presiding Officer
R. Koslowsky, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

D. Kells - Presiding Officer

Signed at Winnipeg this 21st day of July, 2015