The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:

1. Responsibility should not be accepted for the worker's back complaints as being related to the July 16, 2013 accident; and 

2. The worker's partial wage loss benefit rate of $25.33 per week effective August 1, 2021 has been correctly calculated.

A teleconference hearing was held on March 10, 2022 to consider the worker's appeal.

Issue

1. Whether or not responsibility should be accepted for the worker’s back complaints as being related to the July 16, 2013 accident; and 

2. Whether or not the worker’s partial wage loss benefit rate of $25.33 per week effective August 1, 2021 has been correctly calculated.

Decision

1. Responsibility should not be accepted for the worker’s back complaints as being related to the July 16, 2013 accident; and 

2. The worker’s partial wage loss benefit rate of $25.33 per week effective August 1, 2021 has been correctly calculated.

Background

The WCB received the Worker Injury Report on August 19, 2013 reporting the worker dislocated their shoulder in an incident at work on July 20, 2013. On August 22, 2013, the WCB received an Employer’s Accident Report indicating the worker injured their right shoulder at work on July 17, 2013 when moving a ladder that got away from the worker, and instead of letting go, the worker held on to it and dislocated their shoulder.

The Emergency Treatment Record for the worker’s attendance on July 16, 2013 recorded that the worker was injured when carrying a ladder and their right arm became hyper-extended. The worker was assessed, x-rays were taken, and the worker’s shoulder was reduced. The treating emergency room physician diagnosed right shoulder dislocation.

On July 24, 2013, the worker saw a sports medicine physician in follow-up. The physician noted tenderness and reduced range of motion and diagnosed right shoulder instability. The physician recommended the worker remain off work and made a referral for an MRI study. The MRI study of the worker’s right shoulder conducted on September 24, 2013 indicated a massive rotator cuff tear, Hill-Sachs lesion and labral tearing, dislocation of the long biceps tendon, a large glenohumeral joint effusion and moderate acromioclavicular (“AC”) joint osteoarthritis. The worker underwent an arthroscopic biceps tenotomy, arthroscopic stabilization and subscapularis repair on their right shoulder on December 20, 2013 and subsequently attended for physiotherapy and continued to attend for medical treatment.

On July 17, 2014, the worker contacted the WCB to provide an update on their claim, advising that they had been experiencing back problems on their right side, and that approximately three months prior, the pain was so bad it took their breath away. The worker advised they sought medical treatment for their back issues from both a local emergency department and their family physician and had also advised their treating physiotherapist of their difficulties.

The WCB requested reports from the treating healthcare providers. In an August 5, 2014 report, the worker’s treating family physician indicated the worker had advised their back pain had started around the time of the July 2013 workplace accident, with the worker seeking treatment for “severe mid back pain” over the previous few weeks. The treating physician noted the worker’s subjective complaints of inability to walk, lift or move very much, and the worker reported spending most of their time lying in bed, unable to sleep. Upon examination, the family physician noted an abnormal gait and severely restricted range of motion due to pain, with a negative straight leg raise test. The physician opined their investigations had found no obvious cause and provided a diagnosis of mechanical back pain. The physician recommended treatment with medication and physiotherapy, and restrictions of no standing or sitting for more than one hour, no lifting more than ten pounds, no bending to the floor and remain off ladders and away from heights.

A WCB medical advisor reviewed the worker’s file on August 26, 2014 and provided an opinion that the worker’s current back difficulties were not related to the July 2013 workplace accident. The WCB medical advisor noted the lack of report of a back injury at the time of completing of the accident report, and no reference to back difficulties or an injury in the medical assessments of the worker at the time of the workplace accident, as well as the file evidence that the worker sustained a non-compensable back injury in approximately February 2013 due to a motor vehicle accident. Further, the WCB medical advisor confirmed the restrictions previously provided by the worker’s treating physiotherapist were appropriate for the worker. On September 4, 2014, the WCB advised the worker that their current back difficulties were not related to the July 16, 2013 workplace accident.

The WCB updated the worker’s temporary restrictions and advised the employer on August 27, 2014 that the worker was to avoid repetitive above shoulder work, limit floor to waist lifts to 40 pounds, and limit waist to shoulder lifts to fifteen pounds. The WCB also advised it anticipated these restrictions would be permanent. On October 16, 2014, the employer advised they were unable to accommodate the worker within their restrictions and on the same date, the WCB started vocational rehabilitation (“VR”) services for the worker.

On January 19, 2015, the worker requested reconsideration of the WCB’s decision to deny responsibility for their back difficulties by Review Office, noting that they did not have any back difficulties prior to the workplace accident. Review Office determined on February 24, 2015 that the worker’s back difficulties could not be related to the July 16, 2013 workplace accident.

The WCB’s vocational rehabilitation specialist, after evaluating the worker’s skills and training, developed a Vocational Rehabilitation Plan under National Occupation Code (NOC) 7421 – Heavy Equipment Operator (with Class 1) for the worker with a start date of March 2, 2015 and an end date of June 20, 2016.

After a review of the worker’s file by a WCB medical advisor, the WCB advised the employer on April 27, 2015 that the worker’s restrictions were considered permanent. The restrictions limited the worker as follows: floor to knee to waist lifts to 30 pounds and occasionally to 60 pounds; waist to chest lifts to 10 pounds and occasionally to 25 pounds; bilateral carry to 20 pounds and occasionally to 40 pounds; single arm carry left/right to 20 pounds and 10 pounds respectively and occasionally to 40 pounds and 20 pounds respectively; and push/pull to 20 pounds and 30 pounds, respectively, and occasionally to 40 pounds and 60 pounds.

As part of the worker’s vocational rehabilitation training, WCB VR services arranged for the worker to take Class 1 training, to begin on May 19, 2015; however, due to non-compensable medical issues, the worker was unable to commence the training. The WCB subsequently arranged further training to commence in January 2016. On January 4, 2016, the worker’s VR Plan was amended to extend the end date to November 20, 2016. On July 21, 2016, the worker’s VR Plan was again amended to extend the end date to March 14, 2017 to allow for 30 weeks of job search. On August 31, 2016, the worker commenced a training-on-the-job program with an employer that ended on November 25, 2016. On February 24, 2017, the WCB sent a letter to the worker advising their VR Plan was ending effective March 14, 2017, at which time the worker would be deemed capable of working within NOC 7421 Heavy Equipment Operator (with Class 1) and their weekly wage loss benefits would be reduced to $92.69.

Between 2017 and 2021, the worker’s weekly wage loss benefits were reviewed and indexed annually and the worker’s benefits were adjusted accordingly. After a review on August 10, 2021 the WCB advised the worker their weekly partial wage loss benefits effective August 1, 2021 would be $25.33.

The worker requested reconsideration of the WCB’s decision on their weekly partial wage loss benefits to Review Office on September 3, 2021, noting their belief they were entitled to full wage loss benefits as they continued to suffer the effects of the July 16, 2013 workplace accident. On September 13, 2021, Review Office determined the worker’s partial wage loss benefit rate of $25.33 per week effective August 1, 2021 was correctly calculated. Review Office found the calculation of the worker’s benefit had been completed in accordance with the WCB’s legislation and policies and were consistent with the calculation methods on the worker’s file. As such, Review Office found the benefit rate was correctly calculated.

The worker filed an appeal of the Review Office decisions of February 24, 2015 and September 13, 2021 with the Appeal Commission on November 25, 2021. A teleconference hearing was arranged for March 10, 2022.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under that Act and the policies established by the WCB's Board of Directors.

A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Under s 4(2), 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.

When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid as a result of an accident, compensation is payable under s 37 of the Act. With regard to wage loss benefits, s 39(2) of the Act sets out that such benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years. Medical aid is provided for under s 27 of the Act which states that the WCB may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident.

The Act further sets out, in s 40, how a worker’s loss of earning capacity is determined. The Act provides, in part, that:

Calculation of loss of earning capacity 

40(1) The loss of earning capacity of a worker is the difference between 

(a) the worker's net average earnings before the accident; and 

(b) the net average amount that the board determines the worker is capable of earning after the accident; which amount shall not be less than zero.

Monthly payments adjusted and indexed 

40(2) The worker's average earnings before the accident calculated in accordance with section 45 shall be adjusted as of the first day of the month following the second anniversary of the accident and annually thereafter by applying the indexing factor determined under section 47.

The WCB has established Policy 44.80.80.20, Loss of Earning Capacity Reviews (the “Reviews” Policy) to provide guidance as to how and when a worker’s loss of earning capacity will be reviewed and adjusted. The Reviews Policy provides that a worker’s loss of earning capacity will be reviewed on the indexing date, which is, for accidents that happened on or after January 1, 1992, the first day of the month following the second anniversary date of the accident and annually thereafter” and at other times as specified in the Policy. The purpose of this review is to adjust the previous benefits based on a comparison between the worker’s actual loss of earning capacity at the date of the review and the loss of earning capacity estimated at the time of the previous review and to provide a new estimate of the loss of earning capacity to establish the worker’s benefits until the next review.

The Reviews Policy sets out that the factors determining the new loss of earning capacity are the worker’s pre-accident earnings and the worker’s post-accident earning capacity. The worker’s pre-accident average earnings will be adjusted according to the indexing provisions of the Act. Further, the worker’s post-accident earning capacity may be adjusted in any of the following ways:

• Establishing a new estimate of the worker’s actual post-accident earnings based on knowledge of the worker’s circumstances acquired through the annual review. 

• Adjusting the post-accident earning capacity to reflect the effect that any other benefits, as described in WCB policy 44.80.30.10, Establishing Post-Accident Earning Capacity, have on the worker’s post-accident earning capacity. 

• Increasing the worker’s deemed earning capacity based on information about the worker’s capabilities acquired through the annual review. The determination of whether to use actual or deemed earning capacity is based on WCB policies 44.80.30.20, Post-Accident Earnings – Deemed Earning Capacity, and 44.80.30.10, Establishing Post-Accident Earning Capacity. 

• If the WCB believes that the worker’s earning capacity will remain stable until the next review, it will increase the earning capacity by the indexing factor used to index pre-accident average earnings. For workers injured on or after January 1, 1992, this will be an amount equivalent to the annual change in the Industrial Average Wage. For workers injured prior to January 1, 1992, this will be an amount equivalent to the annual change in the Consumer Price Index. 

• If the worker has been deemed capable of earning the provincial minimum wage, the earning capacity will be adjusted to reflect changes to the provincial minimum wage.

The WCB has also established Policy 44.80.30.20, Deemed Earning Capacity (the “Deeming” Policy) which provides when a worker will be deemed capable of earning an amount that they are not actually earning and how the deemed earning capacity will be determined. Since January 1, 1992 WCB has operated on a wage-loss model that pays a worker based upon the difference between the worker’s average earnings before the accident and what the worker earns, or is capable of earning, after the accident (“post-accident earning capacity”). Usually, a worker’s post-accident earning capacity is the amount that they are actually earning; however, there are some circumstances in which the WCB will determine that a worker is capable of earning more than they are actually earning. In those circumstances, the WCB will deem the amount that the worker is capable of earning and will include it in the calculation of post-accident earning capacity as if it had, in fact, been earned. The Deeming Policy provides that deemed earning capacity will be used in calculating a loss of earning capacity when a worker has participated in a VR plan and:

i. The worker has completed the training part of the vocational rehabilitation plan designed to help the worker obtain new skills or improve current skills; 

ii. The worker has been given reasonable job search assistance (i.e., separate from the training part of the plan); and, 

iii. The information the plan was based on, including labour market analysis, has not substantially changed

The Deeming Policy also provides that deemed earning capacity will be reviewed periodically in accordance with the Reviews Policy.

Worker’s Position

The worker represented themself in the hearing, supported by their spouse. The worker provided an oral submission to the appeal panel in respect of the issues under appeal and provided testimony through answers to questions posed by members of the appeal panel.

With respect to the issue relating to the compensability of the worker’s back condition in relation to the accident of July 16, 2013, the worker’s position is that their back condition was changed by the workplace injury and should be compensable. The worker indicated that they were very active prior to the accident but can no longer climb stairs, run or jump and have difficulty when sitting too long. The worker described that they are not able to walk on unlevel ground and would not be able to climb up into a heavy machine or conduct basic maintenance such would be expected of a heavy machine operator due to their ongoing back and shoulder issues which were caused by the workplace accident. The worker emphasized to the panel that prior to the workplace accident they did not have any back injury or problems and did not rely on any pain medications. The worker recalled first noticing back pain in the late fall and early winter of 2013 when travelling to and from medical appointments relating to their shoulder injury, prior to the surgery, noting their back was especially uncomfortable when driving on bumpy or rutted roadways.

With respect to the question of whether the worker’s partial wage loss benefit rate of $25.33 per week effective August 1, 2021 has been correctly calculated, the worker’s position is that the benefits are not sufficient to meet their living expenses and further, that they are not capable of earning the deemed earning amount for a heavy-duty equipment operator as a result of their physical limitations. The worker further indicated that they rely on social assistance benefits to meet their needs and have not returned to work due to their injury.

Employer’s Position

The employer did not participate in the appeal.

Analysis

There are two questions on appeal for the panel to determine: firstly, whether the WCB should accept responsibility for the worker’s back complaints as being related to the July 16, 2013 accident; and secondly, whether the worker’s partial wage loss benefit of $25.33 per week effective August 1, 2021 was correctly calculated. For the panel to grant the worker’s appeal with respect to their back condition, we would have to determine that the evidence supports a finding that as a result of the accident, the worker’s back was injured and to grant the worker’s appeal with respect to the calculation of their partial wage loss benefits, the panel would have to determine that the WCB did not properly apply the provisions of the Act and Policy in establishing the worker’s loss of earning capacity. As outlined in the reasons that follow, the panel was not able to make such determinations and therefore the worker’s appeal is denied.

In considering whether the WCB should accept responsibility for the worker’s back complaints as being related to the July 16, 2013 accident, the panel reviewed the medical reporting and the information contained within the WCB claim file.

At the time of the accident, the emergency treatment record indicates that the worker reported a history of back pain, but the only diagnosis outlined at that time was of right shoulder dislocation. This is consistent with the worker’s Injury Report to the WCB on July 20, 2013 which indicates only a shoulder dislocation injury. On questioning by members of the appeal panel, the worker could not recall any prior history of back pain.

That the worker has a history of back injury is also outlined in the medical history set out in a report from their treating psychiatrist dated April 3, 2013, some three months prior to the compensable accident. That report indicates the worker “suffered a motor vehicle accident two months ago and a fall from a 44 ft. height while doing [their] work, injuring [their] back. [The worker] is still able to walk but has several crushed vertebrae.” The psychiatrist noted that the worker presented “in obvious distress” due to their back pain.

The panel reviewed the medical reports in the WCB claim file and noted that the first medical reporting after the workplace accident indicating the worker’s complaint of back symptoms is contained in an emergency department report from June 28, 2014 indicating sudden onset of mid/right lower back pain, worse with movement and no injury. Hospital records indicate the worker attended again on July 12, 2014 with numerous complaints including shooting, stabbing back pain with movement, investigated for kidney stones. The worker returned to the hospital on July 21, 2014 again complaining of right back/flank pain that extended to the left low back, worse with activity. The worker sought care again on July 24, 2014 at which time the record indicates no evidence of radiculopathy and no injury. In an emergency department report dated July 26, 2014 the worker is noted to have been “seen here many times last 2 weeks with mechanical back pain” and outlining symptoms of severely restricted lumbar range of motion and pain, but no diagnostic evidence of any pathology. A diagnosis of mechanical back pain was provided.

The worker’s treating physician outlined in a report dated August 5, 2014 that the worker was severely restricted by their back pain, which had worsened and was very severe and limiting. The physician noted the worker’s description of their workplace injury of 2013 in which “lateral forces picked [the worker] up and spun [them] around while holding onto [their] ladder” and stated that the mechanism of injury described “would fit with some element of back pain, however, I would not expect such a delayed onset of severe pain.”

The WCB medical advisor reviewed the worker’s claim file on August 26, 2014 and concluded that the worker’s back symptoms were not related to the compensable workplace injury on the basis of the lack of reference to a back injury at the time of the initial accident reporting and the lack of medical documentation of any back injury from that time until approximately one year later. The medical advisor also noted the reference to a prior back injury arising from a motor vehicle accident in early 2013.

The panel also noted that the January 30, 2015 MRI study of the worker’s lumbar spine revealed multi-level degenerative changes, more pronounced at the lower thoracic and upper lumbar spine regions.

Although the worker testified to not experiencing any back symptoms prior to the compensable accident and is of the view that their current back condition is attributable to that accident, the evidence before the panel does not support that position. The panel is unable to make a finding that the workplace accident of July 16, 2013 caused or resulted in any injury to the worker’s back. Both the subsequent diagnostic imaging and the timing of the onset of the worker’s back complaints nearly one year after the accident support a finding that the worker’s back condition is rather related to other non-compensable causes.

The panel therefore determines, on the standard of a balance of probabilities, that responsibility should not be accepted for the worker’s back complaints as being related to the July 16, 2013 accident. The worker’s appeal of this question is denied.

The panel also considered whether there is any evidence to support the worker’s position that their partial wage loss benefit of $25.33 per week effective August 1, 2021 was not correctly calculated. The Act sets out that loss of earning capacity is the difference between the worker's net average earnings before the accident; and the net average amount that the board determines the worker can earn after the accident. The WCB initially established the worker’s average pre-accident earnings at $772.42 per week and that this amount would be indexed annually on August 1. As a result, the worker’s 2021 indexed pre-accident earnings were established at $908.29 per week. Upon completion of the worker’s Vocational Rehabilitation plan in 2017 in National Occupational Code (“NOC”) 7521 as a Heavy Duty Equipment Operator, the worker was deemed capable of earning $664.79 per week (as at June 2016). The VR plan also set out that on completion of the plan, the worker would be capable of earning that amount, plus an annual increment of 2.85% to a maximum of $809.19.

The WCB file documents that the worker’s deemed earning capacity in NOC 7521 has been indexed annually, increasing by 2.85% each year plus the annual increase in the Industrial

Average Wage, such that as of August 2021, the worker’s indexed income earning capacity was found to be $813.83 per week. The WCB calculated that the worker was therefore entitled to partial wage loss benefits at a rate of $25.33 per week effective August 1, 2021. This is the decision that the worker disputes.

The panel noted the worker’s submission that they were never, since the accident, capable of earning the deemed earning capacity amount for a heavy-duty equipment operator as they were not physically capable of doing that work given their physical limitations arising out of the compensable accident as well as their other non-compensable limitations as noted in the WCB claim file. The worker confirmed that this was their desired career path but that they were not capable of doing that work as they are unable to climb stairs and ladders or undertake the kind of equipment maintenance required of such machine operators. The panel noted that the VR Plan indicated that the worker had all the transferrable skills, knowledge, and abilities for this goal, as well as an aptitude and interest in it, and that the worker was expected to be able to work within their physical restrictions. The panel also noted that the initial VR assessment commented on the worker’s non-compensable medical issues (neck and back injury) but that these were not noted as a barrier to the worker’s success in the VR plan developed. While the worker set out in their submission that they were unable to undertake this kind of work at any point after the completion of the VR plan due to their back and shoulder limitations, the panel noted that the worker has not brought the question of appropriateness of the VR plan to the Review Office for consideration and therefore the panel is not able to address this aspect of the worker’s submissions other than as noted.

As outlined in their submission to the panel, the primary basis for the worker’s challenge of the amount of the weekly partial wage loss benefit as of August 1, 2021 is that the amount received is not sufficient to meet the worker’s expenses. While the panel accepts that this may be correct, it does not provide a basis for the panel to set aside the WCB’s decision in this regard. The panel must determine that the amount has not been correctly calculated for the worker’s appeal of this question to be granted. As set out above, the Reviews Policy provides that the worker’s loss of earning capacity is determined by the worker’s pre-accident earnings and the worker’s post-accident earning capacity. The worker’s pre-accident average earnings are to be adjusted according to the indexing provisions of the Act. The Reviews Policy also sets out that if the WCB believes that the worker’s earning capacity will remain stable until the next review, it will increase the earning capacity by the indexing factor used to index pre-accident average earnings.

On reviewing the worker’s WCB claim file, the panel is satisfied that the WCB correctly applied the provisions of the Act and the Reviews Policy in establishing the worker’s loss of earning capacity as of August 1, 2021. We therefore determine, on the standard of a balance of probabilities, that the worker’s partial wage loss benefit of $25.33 per week effective August 1, 2021 was correctly calculated. The worker’s appeal of this question is denied.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 20th day of April, 2022