Decision #38/20 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to wage loss benefits after September 20, 2019. A hearing was held on January 29, 2020 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss benefits after September 20, 2019.
That the worker is not entitled to wage loss benefits after September 20, 2019.
The worker reported to the WCB that he injured his right shoulder in two incidents at work on September 21, 2015: first, where he lifted a container and felt "…a sharp tug on my right shoulder," then shortly after that, where he lifted a container above his head and "… felt a pop on my right shoulder." The worker saw his family physician that same day and reported that he injured his right shoulder after lifting objects above shoulder level and had pain with elevation of his right arm. The physician noted findings of tender right shoulder with abduction and internal rotation and diagnosed the worker with right shoulder tendinitis. Previous right shoulder tendinitis was also noted. The physician recommended the worker start physiotherapy and remain off work.
At an initial physiotherapy assessment on September 22, 2015, the worker was diagnosed with right rotator cuff tendinopathy. The physiotherapist recommended two weeks off work, followed by a gradual return to work. The worker's claim was accepted by the WCB and payment of benefits commenced. The worker returned to work on October 13, 2015, working light duties with reduced hours.
On October 29, 2015, the worker underwent an MRI of his right shoulder which indicated, in part: "High grade bursal sided partial thickness tear affecting the rotator cuff as described measuring 1 x 0.2 cm…" The worker was referred to an orthopedic surgeon on November 3, 2015, and approval for right shoulder arthroscopic rotator cuff repair was given on January 4, 2016.
On March 2, 2016, the worker underwent a right shoulder arthroscopic biceps tenotomy, rotator cuff repair and subacromial decompression, and on April 26, 2016, he began a course of physiotherapy. The worker returned to work on modified duties on September 19, 2016.
On September 22, 2016, the worker's treating physiotherapist advised the WCB that the worker had sustained an injury to his left shoulder while "…doing his pull down exercises (with both arms) and he felt a 'pop' in his left arm…" The WCB case manager advised the physiotherapist that the injury would be considered a subsequent injury as the worker was in treatment for a compensable injury.
On November 24, 2016, the worker was seen for his left shoulder injury by the same orthopedic surgeon as had treated him previously. The orthopedic surgeon noted that the worker had been diagnosed with a low grade rotator cuff tear, anterior capsular contracture and acromioclavicular joint osteoarthritis in his left shoulder in 2012, and had undergone a "…distal clavicle excision, debridement, and decompression along with an anterior capsular release" on the left shoulder at that time. The orthopedic surgeon opined that the worker had "…signs and symptoms consistent with rotator cuff disease of the left shoulder" and ordered an MRI to clarify the diagnosis. The MRI, performed December 16, 2016, indicated in part: "Supraspinatus and infraspinatus tendinosis with a small intra tendinous tear at the infraspinatus insertion…" On December 28, 2016, the WCB's Compensation Services advised the worker that they accepted responsibility for the September 22, 2016 injury to his left shoulder as a secondary injury, and would be responsible for wage loss and medical aid benefits in relation to that injury.
On January 25, 2018, the worker underwent a left shoulder arthroscopic debridement, and on February 26, 2018, the worker began a course of physiotherapy for his left shoulder. Temporary restrictions were put in place and the worker returned to work on modified duties on April 16, 2018. On August 23, 2018, Compensation Services advised the employer that the worker had permanent restrictions of no lifting or carrying more than five pounds with the right or left upper limb, no reaching of the hands more than head height, no overhead tasks and no repetitive resisted tasks with the upper limbs away from the side of the body. On September 13, 2018, a meeting was held with the WCB case manager, the employer and a union representative to discuss the worker's position. The employer advised that it might not be able to continue to accommodate the worker within his restrictions on a long-term basis but they were searching for alternate accommodations.
On September 24, 2018, the case manager advised the worker that they had not heard anything further from the employer with respect to accommodation. The case manager further advised the worker that he would only be entitled to wage loss benefits up to September 20, 2019, being 48 months from the date of the workplace accident, pursuant to subsection 39(3) of The Workers Compensation Act (the "WCA"). On June 13, 2019, the WCB sent a letter to the worker to confirm that his wage loss benefits would end on September 20, 2019. On June 24, 2019, the worker contacted his case manager to discuss the June 13, 2019 letter. The worker said he disagreed with the decision to end his wage loss benefits on September 20, 2019, as he had a left shoulder injury as well. The case manager advised the worker that the injury to his left shoulder was accepted as a secondary injury under the original 2015 claim, and not as a new claim, as it was a result of his September 21, 2015 workplace injury.
On July 11, 2019, the worker requested that Review Office reconsider Compensation Services' decision. The worker submitted that as he injured his left shoulder on September 22, 2016, that date should be used to calculate the four years' time and his benefits should run to September 22, 2020.
On September 4, 2019, Review Office determined there was no entitlement to wage loss benefits beyond September 20, 2019. Review Office noted that the worker's left shoulder was injured on September 22, 2016, not at work, but as a result of receiving treatment for his compensable right shoulder injury. Review Office found that the WCB's policy regarding further injuries subsequent to a compensable injury applied, such that coverage should be provided under the worker's original 2015 claim. The worker's secondary left shoulder injury would therefore not extend the duration of wage loss benefits payable, which was limited by the WCA, and he was not entitled to wage loss benefits after September 20, 2019.
On September 20, 2019, the worker appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.
Applicable Legislation and Policy
As the worker is employed by a federal government agency or department, his claim is adjudicated under the Government Employees Compensation Act (the "GECA"). Subsection 4(1) of the GECA provides that an employee who suffers personal injury "by an accident arising out of and in the course of his employment" is entitled to compensation. Subsection 4(2) of the GECA provides that a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under the WCA.
The Appeal Commission and its panels are bound by the WCA, regulations and policies of the WCB’s Board of Directors.
Subsection 4(1) of the WCA provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.
Subsection 4(2) of the WCA provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but 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.
Subsection 39(2) of the WCA deals with the duration of wage loss benefits, and provides as follows:
Duration of wage loss benefits
39(2) Subject to subsection (3), wage loss benefits are payable until
(a) the loss of earning capacity ends, as determined by the board; or
(b) the worker attains the age of 65 years.
Subsection 39(3) of the WCA provides an exception with respect to workers 61 years of age and older, and states:
Exception re workers 61 years of age or older
39(3) Where a worker is 61 years of age or older at the commencement of his or her loss of earning capacity, the board may pay the wage loss benefits for a period of not more than 48 months following the date of the accident.
WCB Policy 188.8.131.52, Further Injuries Subsequent to a Compensable Injury (the "Further Injuries Policy"), applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. The Further Injuries Policy provides that:
A further injury occurring subsequent to a compensable injury is compensable:
(i) when the cause of the further injury is predominantly attributable to the compensable injury; or
(ii) when the further injury arises out of a situation over which the WCB exercises direct specific control; or
(iii) when the further injury arises out of the delivery of treatment for the original compensable injury.
Administrative Guidelines under the Further Injuries Policy state, in part, that:
A subsequent accident or injury may be compensable if a relationship between the original compensable injury and the subsequent injury is established where:
3. The subsequent injury arises out of the delivery of treatment for the original injury (unless the treatment is not acceptable to the WCB). For example, the worker is injured while being examined or treated (e.g., falls off the examining table or suffers complications from surgery). The subsequent injury would not be compensable if the injury resulted from a hazard of the healthcare providers premises that is not connected to the actual treatment (e.g., the worker slips on ice on the healthcare providers steps or a chair collapses in the healthcare providers offices).
The WCB will not accept responsibility for a subsequent non-compensable injury where there is no causal relationship between the subsequent and the original injury (e.g., a worker with a shoulder injury trips and falls). If the subsequent injury prolongs or aggravates the original injury, the WCB will pay compensation for the estimated time that it would have paid for the original injury had the subsequent injury not occurred.
The worker was represented by a union representative, who made an oral presentation at the hearing and responded to questions from the panel.
The worker's position was that he is, or should be, entitled to wage loss benefits from September 20, 2019 through to September 22, 2020 as a result of his subsequent left shoulder injury.
The worker's representative submitted that the issue on this appeal was largely one of interpretation. He noted that the worker suffered two injuries, both of which were accepted by the WCB. The first injury, a right shoulder injury, occurred on September 21, 2015 and corrective surgery was done on March 2, 2016. The second or subsequent injury, to his left shoulder, occurred on September 22, 2016 while the worker was receiving physiotherapy treatment following his right shoulder surgery, and corrective surgery was performed on January 25, 2018. The representative submitted that this second injury was not a re-injury, as it was on a different limb, and the injury and circumstances causing that injury were not disputed by the WCB.
The worker's representative submitted that the main crux of their appeal centred around subsection 39(3) of the WCA, which provides that where a worker is 61 years of age or older at the time of his loss of earning capacity, the WCB may pay benefits for a period of not more than 48 months following the date of his accident. The representative noted that the worker was 62 years old at the time of the first injury, and 63 years old when the second injury occurred. His wage loss benefits ceased September 20, 2019, or 48 months after the first injury.
It was submitted that the worker was coping and trying to work, but was not ready to retire. Had the secondary injury not occurred, the worker would have had full range of motion and full use of his left side. He wished to continue working and had the right to do so, but now had permanent restrictions on both arms and was extremely limited in the duties he could perform and the number of hours he could work.
The worker's representative submitted that the WCB did not dispute that both of the worker's injuries were compensable. He submitted that the Further Injuries Policy mandates that compensation be paid for the estimated time it would have paid for the original injury had the subsequent injury not occurred. He submitted that the subsequent injury has not prolonged or aggravated the initial injury, as it involves a separate limb, and should therefore not be subject to the initial injury timeline invoked by the Further Injuries Policy and subsection 39(3) of the WCA. Rather, it should be considered as a separate injury or incident, and wage loss benefits should be paid from September 20, 2019 through to September 22, 2020, which would give him 48 months' benefits for that injury.
The employer was represented by a Human Rights Specialist, who made an oral presentation at the hearing, a written copy of which was also provided.
The employer's position was that the worker is not entitled to wage loss benefits beyond September 20, 2019.
The employer's representative submitted there is no dispute the injury to the worker's left shoulder occurred during treatment for his right shoulder compensable injury. She submitted that while the worker's representative appeared to have suggested the left shoulder injury should result in a new WCB claim, the injury did not occur at work or while doing work activities, and in their view, did not satisfy the requirements of a new claim as an accident arising out of and in the course of employment.
The employer's representative submitted that the Further Injuries Policy is quite specific in terms of the wording and scenarios it covers, and clearly establishes the principles where a further injury is compensable. In the employer's view, the Policy was correctly followed with the second injury being deemed compensable as related to delivery of treatment for the original compensable injury.
With respect to the duration of the worker's wage loss benefits, the employer's representative submitted that subsections 39(2) and (3) of the WCA provide clear direction for workers 61 years of age and older. The representative made reference to Policies 44.60.20, Date of Retirement, and 44.30.60, Notice of Change in Benefits or Services, and submitted that the WCA and policies were properly administered in determining that the worker's wage loss benefits would end on September 20, 2019, being 48 months after the date of the original compensable accident.
In conclusion, it was submitted that the WCB properly and correctly applied the WCA and policies, and the worker’s appeal should be dismissed.
The issue before the panel is whether or not the worker is entitled to wage loss benefits after September 20, 2019. For the worker's appeal to be successful, the panel must find that the worker is entitled to further wage loss benefits as a result of his subsequent or secondary injury suffered September 22, 2016. The panel is unable to make that finding, for the reasons that follow.
The panel notes that the amount and duration of wage loss benefits which are payable to a worker are expressly dealt with in the WCA. Under subsection 39(2), wage loss benefits are payable up until 65 years of age. An exception is provided in subsection 39(3) for workers who are 61 years of age or older when their loss of earning capacity begins. In such circumstances, the WCB is authorized to pay wage loss benefits "for a period of not more than 48 months following the date of the accident."
The worker was 62 years of age at the time of the original September 20, 2015 accident and was paid wage loss benefits up to September 20, 2019, being 48 months after the date of that accident. The worker did not dispute that the 48 month cap on wage loss benefits applied with respect to his original accident. The worker's position was that because he suffered a subsequent injury on September 22, 2016, he was entitled to wage loss benefits beyond September 20, 2019, up to September 22, 2020, being 48 months after the date of that injury, which would amount to approximately 12 additional months' benefits beyond the original date of accident. In the panel's view, this is not permitted under the WCA.
In arriving at our conclusion, the panel notes that subsection 39(3) specifically authorizes payment of up to a maximum of 48 months' wage loss benefits "following the date of the accident." The panel finds that the wording of that provision is clear and unambiguous. It expressly refers to the date of "the accident", not the date of treatment or of any subsequent incidents or events. The panel is unable to identify anything in the WCA or WCB policies which would allow wage loss benefits to be extended or continued beyond the 48 months which are set out in the WCA.
While the worker's representative has argued that the September 22, 2016 incident was essentially a new or separate incident or claim, the panel is unable to accept that argument. The panel notes there is no dispute that the subsequent incident occurred while the worker was undergoing physiotherapy treatment in relation to his right shoulder injury, and not at work or while the worker was performing his work duties. The panel is satisfied that the injury and incident did not meet the requirements under the GECA or the WCA of having arisen "out of and in the course of" the worker's employment. The panel is therefore unable to accept that the September 22, 2016 incident or injury qualifies as a new or separate incident or claim. Rather, the panel finds that this secondary injury falls squarely within point (iii) of the Further Injuries Policy as a further injury which "arises out of the delivery of treatment for the original compensable injury."
Further or alternatively, the worker's representative argued, with reference to the Further Injuries Policy, that benefits should be paid through his recovery from his September 22, 2016 injury or the additional period where he did not recover, with the four-year cap being applied on that basis. In response to questions from the panel, the representative acknowledged that the September 22, 2016 injury fell within point (iii) of the Further Injuries Policy, but argued that this injury should not be "lumped in with" or "tacked onto" the original injury as it was to a different limb or appendage and did not impact directly on the original injury. He argued that there was only one mention in the Further Injuries Policy of a timeframe or "back-dating" benefits, which appeared in the last sentence of the Administrative Guidelines and did not apply in this case, and that nothing in that Policy or anywhere else spoke to a subsequent injury automatically being tagged with the same timelines as the initial injury.
The worker's representative further suggested that it would be a huge injustice if such a secondary injury happened, for example, just before a worker's coverage expired. He submitted that to some degree this happened to the worker, where he went through an additional year of having to deal with both shoulders being injured and no wage loss benefits. He submitted that in these circumstances, the fair and reasonable thing would be to cover the worker for this extra time, to September 2020, and that the panel could and should exercise discretion and provide additional wage loss benefits beyond the original timeline.
The panel acknowledges the representative's position in this regard, but notes, as indicated above, that we are bound by the WCA and WCB policy. The panel does not accept that there is a "hole" in the Further Injuries Policy, as suggested by the worker's representative. As previously stated, the panel finds the wording of subsection 39(3) is clear and unambiguous, and limits wage loss benefits to a maximum of 48 months after the date of the original compensable accident and injury. The panel does not have discretion to extend benefits beyond that 48 month or four year maximum entitlement.
In conclusion, the worker received wage loss benefits up to September 20, 2019, being 48 months after the date of his original compensable accident. The panel is satisfied that this is the maximum length of time which is authorized under the WCA for the payment of wage loss benefits in these circumstances, and that the worker is not entitled to wage loss benefits beyond that date.
Based on the foregoing, the panel finds that the worker is not entitled to further wage loss benefits as a result of his subsequent or secondary injury suffered September 22, 2016, and is therefore not entitled to wage loss benefits after September 20, 2019.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 25th day of March, 2020