The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his wage loss benefits are considered to be wages under The Garnishment Act and that a Medical Review Panel should not be convened under subsection 67(4) of The Workers Compensation Act (the "Act"). A file review was held on May 2, 2018 to consider the worker's appeal.

Issue

Whether or not the worker's wage loss benefits are considered to be wages under The Garnishment Act;

Whether or not a Medical Review Panel should be convened under subsection 67(4) of the Act.

Decision

That the worker's wage loss benefits are considered to be wages under The Garnishment Act;

That a Medical Review Panel should not be convened under subsection 67(4) of the Act.

Background

This claim has been the subject of a previous appeal on this claim and the background will therefore not be repeated in its entirety. Please see Appeal Commission Decision No. 169/17.

The worker reported that he was pushing a gantry on November 8, 2012 during the course of his employment as a labourer when he felt a pop in his left shoulder and numbness in his left arm. On November 8, 11 and 12, 2012, the worker sought medical attention for his left shoulder and neck pain which he related to the November 8, 2012 incident. The claim for compensation was accepted based on the diagnosis of a left shoulder rotator cuff tear and cervical disc herniation with left upper limb radiculopathy at C5-6-7. On October 31, 2013, the worker underwent an anterior discectomy and arthroplasty at C5-6-7 which was accepted as a WCB responsibility. Various benefits, including wage loss, were paid.

On September 24, 2014, the WCB was served with a garnishing order with respect to the wage loss benefits paid to the worker and monies owed to a third party. The worker's wage loss benefits were reduced based on the amounts required to be paid by the garnishing order.

On October 21, 2016, the worker's representative requested that the WCB convene a Medical Review Panel to review the worker's claim, due to what they felt were inconsistencies with respect to the various medical opinions that were received.

On November 14, 2016, Compensation Services advised the worker that a Medical Review Panel would not be convened to review his claim. The WCB noted that pursuant to subsection 67(4) of the Act, "where in any claim or application by a worker for compensation the opinion of the medical officer of the board in respect of a medical matter affecting entitlement compensation differs from the opinion in respect of the matter of the physician selected by the worker, expressed in a certificate of the physician in writing…" Compensation Services advised that there was no difference in the medical opinion provided by the worker's physicians compared to the WCB medical advisors in terms of diagnosis or present symptoms.

On November 17, 2016, the worker's representative requested reconsideration of Compensation Services' November 14, 2016 decision to not convene a Medical Review Panel by Review Office.

On January 4, 2017, Compensation Services received a request for clarification from the worker's representative regarding the garnishment of monies from the worker's wage loss benefits. On January 10, 2017, Compensation Services, in consultation with the WCB legal department advised the worker's representative that as wage loss benefits were considered "wages", as defined by The Garnishment Act, the worker's wage loss benefits would continue to be impacted by the garnishment order as long as it was in effect.

On March 8, 2017, Review Office upheld the WCB's November 14, 2016 decision that a Medical Review Panel should not be convened. Review Office noted that while the worker's attending physician had commented with respect to the worker's diagnosed condition that he "may be suffering from chronic spondylosis as well as anterior ossification of the anterior longitudinal ligament causing effusion", the comment did not meet the definition of an "opinion" as set out in subsection 67(1) of the Act. The worker's attending physician's comments did not constitute a "full statement of the facts and reasons supporting a medical conclusion" relating the worker's condition to the workplace injury.

On March 17, 2017, the worker's representative appealed Review Office's March 8, 2017 decision to the Appeal Commission.

On November 8, 2017, the worker's representative requested reconsideration of the WCB's January 10, 2017 decision that the worker's wage loss benefits are considered wages under The Garnishment Act.

On December 6, 2017, Review Office upheld Compensation Services' January 10, 2017 decision. Review Office found that WCB wage loss benefits are subject to garnishment to the extent that is enforceable under The Garnishment Act, as they are deemed to be wages for the purpose of the Act. Review Office found that in accordance with the Act, Compensation Services adhered to the garnishing order and reduced the worker's wage loss benefits accordingly.

On December 11, 2017, the worker's representative appealed Review Office's December 6, 2017 decision to the Appeal Commission, and a file review for both issues was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by the Act, regulations and policies of the WCB's Board of Directors.

The worker has questioned whether WCB wage loss benefits are considered to be wages for the purposes of The Garnishment Act. The relevant provision is subsection 23(1) of the Act which provides:

Wage loss benefits exempt from garnishment order 

23(1) Wage loss benefits payable to a worker or dependant under this part are deemed to be wages for the purposes of The Garnishment Act and are exempt from seizure or attachment under a garnishing order to the same extent as wages are exempt under that Act.

The worker has also requested that an MRP be convened pursuant to subsection 67(4) of the Act. The relevant provisions of the Act are subsections 67(4) and 67(1).

Subsection 67(4) provides:

Reference to panel on request of worker 

67(4) Where in any claim or application by a worker for compensation the opinion of the medical officer of the board in respect of a medical matter affecting entitlement to compensation differs from the opinion in respect of that matter of the physician selected by the worker, expressed in a certificate of the physician in writing, if the worker requests the board, in writing before a decision by the appeal commission under subsection 

60.8(5), to refer the matter to a panel, the board shall refer the matter to a panel for its opinion in respect of the matter.

Subsection 67(1) defines opinion as "a full statement of the facts and reasons supporting a medical conclusion."

Worker's Position

The worker was assisted by a worker advocate who provided a written submission in support of his appeal.

With respect to the first issue, the worker's position was that the panel should overturn the December 6, 2017 decision with respect to the garnishment of wage loss benefits and find in favour of the worker.

The worker advocate submitted that wages are defined under The Garnishment Act, to include

…salary, commission and fees, and any other money payable by an employer to an employee in respect of work or services performed in the course of employment of an employee…

The advocate submitted that the worker is not employed or providing a service or work; he does not have an employer and is not receiving a wage by law under The Garnishment Act.

The worker is also not an employee of the WCB. The worker advocate noted that the heading of subsection 23(1) of the Act states "Wage loss benefits exempt from garnishment order." It was submitted that this is misleading and would lead the reader to believe that any garnishment order sent to the WCB would be exempt from the order.

The worker advocate further submitted that The Garnishment Act speaks of garnishment of wages, but does not mention garnishment of monies other than from a pension. It does not address WCB benefits, wage loss benefits or insurance.

With respect to the second issue, the worker advocate submitted that an in-depth Medical Review Panel needs to be convened with respect to the worker's WCB claim so that his entitlement to continuing compensable benefits can be determined. The advocated submitted that there are a number of inconsistences on the worker's file which need to be addressed.

Employer's Position

The employer did not participate in the appeal.

Analysis

Issue 1. Whether or not the worker's wage loss benefits are considered to be wages under The Garnishment Act.

For the appeal on this issue to be successful, the panel must find that WCB wage loss benefits are not to be considered wages under The Garnishment Act. The panel is unable to make that finding.

The panel finds that the legislation is clear. Subsection 23(1) of the Act specifically states that WCB wage loss benefits which are payable to a worker are deemed to be wages for the purposes of The Garnishment Act.

The panel notes that there is nothing in the Act which shields WCB wage loss benefits from being subject to garnishment. There is also nothing in the Act which relieves the WCB from the requirement to comply with a properly obtained and served garnishing order.

The panel finds that the worker's wage loss benefits are considered to be wages under The Garnishment Act.

The worker's appeal is dismissed.

Issue 2. Whether or not a Medical Review Panel should be convened under subsection 67(4) of the Act.

For the appeal on this issue to be successful, the panel must find that there is difference of medical opinion that affects entitlement to compensation or medical aid benefits. The panel is unable to make that finding.

To initiate the convening of a Medical Review Panel, there must be a differing opinion between a medical officer and the WCB and a physician selected by the worker. Having reviewed and considered a very non-specific submission from the worker advocate and carefully reviewed the claim file, the panel finds that it cannot clearly identify a difference in medical opinions between a WCB doctor and an external physician that affects an entitlement.

The panel therefore finds that a Medical Review panel should not be convened under subsection 67(4) of the Act.  

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 28th day of June, 2018