Decision #13/23 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to wage loss benefits after May 15, 2022. A hearing was held on November 29, 2022 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss benefits after May 15, 2022.
The worker is not entitled to wage loss benefits after May 15, 2022.
The worker provided the WCB with a Worker Incident Report on July 3, 2018, reporting he injured his right shoulder and right hand at work on May 16, 2018. The worker indicated he was pushing a cart when his knee gave out, and as he was falling, he tried to reach out for the scaffolding to hold onto it. The worker noted that "I ended up falling onto an air compressor, hitting my shoulder and hand on it." The worker left work after the incident and sought medical treatment from a sports medicine physician the following day.
The worker's treating sports medicine physician referred the worker for an x-ray of his right hand and an MRI of his right shoulder, following which the physician noted that the worker sustained a right rotator cuff tear and an injury to his right hand, later diagnosed as an aggravation of the right third metacarpophalangeal joint osteoarthritis. The worker opted not to undergo surgery to repair the rotator cuff tear. The worker's claim was accepted and payment of wage loss and medical aid benefits commenced.
The worker continued to receive medical treatment, attending physiotherapy and appointments with his treating sports medicine physician on a regular basis. At a follow-up appointment with his sports medicine physician on July 24, 2018, reduced range of motion and a positive impingement test were noted for the worker's right shoulder and it was recommended the worker remain off work. In a conversation with the WCB on August 10, 2018, the worker noted continued symptoms, with pain and difficulty moving his arm and difficulty sleeping.
At a physiotherapy treatment appointment on August 15, 2018, the worker reported persistent right shoulder pain that affected his activities of daily living and sleep, with the treating physiotherapist reporting continued reduced range of motion and persistent pain in the worker's right shoulder. The physiotherapist recommended a graduated return to work, starting with 4 hours a day for the first week, progressing to 6 hours a day for the second week, and 8 hours a day after that. The physiotherapist recommended restrictions of avoiding prolonged/repetitive use of the right arm over shoulder height, overhead lifting and carrying; carrying/lifting at waist height limited to 20 lbs bilaterally; and breaks as needed from repetitive tasks. The restrictions were provided to the employer on August 17, 2018.
On November 29, 2018, the worker's file was reviewed by a WCB orthopedic consultant, who opined that the worker's current symptoms were "…probably caused by a combination of the workplace injury and the natural history of the degenerative pre-existing conditions." The consultant recommended restrictions of no repetitive tasks above shoulder level with the right upper limb; no repetitive resisted tasks with the right upper limb away from the side of the body; no lifting and carrying with the right upper limb more than 20 lbs; and no pushing and pulling with the right upper limb with force greater than 20 lbs, to be reviewed in two months' time.
As the worker continued to report ongoing symptoms, a functional capacity evaluation ("FCE") was subsequently arranged. The worker underwent the FCE on July 17, 2019. In the report of the FCE, the WCB physiotherapy consultant indicated the worker passed only 1 of 5 validity checks for the evaluation, and the FCE results were therefore considered to be invalid.
On September 11, 2019, the WCB orthopedic consultant reviewed the results of the FCE and opined that the worker's current difficulties were "…related to the natural history of progressive osteoarthritis (OA) of the right shoulder. It cannot be medically confirmed that any of the current loss of function of the right upper limb is related to the workplace injury at this time." In a September 26, 2019 report from the worker's treating sports medicine physician, the physician noted the worker reported his right shoulder was "…getting more painful and stiffer" and provided a diagnosis of "Cuff tendinopathy/ghoa (glenohumeral osteoarthritis)".
By letter dated October 3, 2019, the WCB advised the worker that they had determined his current shoulder difficulties were not related to the May 16, 2018 workplace injury and his entitlement to benefits would end as of November 4, 2019. Additional correspondence was subsequently received from the worker's treating sports medicine physician and reviewed, and on November 28, 2019, the WCB advised the worker that there would be no change to their previous decision.
On December 18, 2019, the worker requested that Review Office reconsider the WCB's decision. On February 19, 2020, Review Office overturned the WCB's decision and determined that the worker was entitled to benefits beyond November 5, 2019. Review Office found that the medical evidence supported the worker had not functionally recovered, and that he continued to suffer from the combined effects of both the workplace accident and his pre-existing degenerative changes. Review Office therefore determined that the worker was entitled to both wage loss and medical aid benefits beyond November 5, 2019 and returned the file to Compensation Services to determine the worker's current capabilities going forward.
In a discussion with the WCB on March 2, 2020, the worker confirmed that he had not returned to work since the workplace accident. On April 9, 2020, the WCB orthopedic consultant reviewed the worker's file again and opined that the worker's recommended restrictions of no tasks with the right upper limb above shoulder level; no repetitive resisted tasks with the right upper limb away from the side of the body; no lifting from floor to waist more than 30 lbs; no lifting to shoulder level more than 10 lbs; and no pushing and pulling with force greater than 10 lbs with the right upper limb were now considered permanent. The restrictions were provided to the employer on April 10, 2020, and on April 27, 2020, the employer advised the WCB that they were unable to accommodate the worker within his restrictions.
On April 27, 2020, the worker's file was referred for possible vocational rehabilitation services. In a discussion with the WCB on April 30, 2020, the worker advised he had "no plans to retire anytime soon" and wanted to continue searching for work. On May 26, 2020, a WCB vocational rehabilitation consultant summarized the worker's file. The consultant noted that the employer could not accommodate the worker due to the worker's permanent restrictions, and given the worker's age and that he had not had any plans of retiring, it was recommended the worker be deemed unemployable and continue to be paid full wage loss benefits to May 15, 2022, being the 48-month time period after the workplace accident date during which the worker would be entitled to benefits pursuant to the legislation. On June 18, 2020, a WCB deem committee agreed with that recommendation. By letter dated November 24, 2020, the WCB advised the worker that he would continue to receive full wage loss benefits to May 15, 2022 unless his earning capacity changed.
By letter dated February 23, 2022, the WCB informed the worker that he would be paid wage loss benefits until May 15, 2022, but would no longer be eligible to receive wage loss benefits after that date. The worker contacted the WCB on February 23, 2022 to discuss his benefits ending. The WCB confirmed that pursuant to the WCB legislation, a worker who is over the age of 65 at the time of a workplace injury is paid 48 months of wage loss benefits, which in the worker's case would be until May 15, 2022.
On April 27, 2022, the worker requested that Review Office reconsider the WCB's decision to end his benefits on May 15, 2022. The worker noted that despite his age, his plans were to continue working. Due to the workplace injury, however, he was in constant pain and had sleepless nights. The worker stated he believed he should be entitled to some form of long-term disability payments going forward.
On June 15, 2022, Review Office determined that the worker was not entitled to wage loss benefits beyond May 15, 2022. Review Office noted there was no provision under the WCB legislation to extend wage loss benefits beyond the 48-month period set out in the legislation. Review Office found the worker was 71 years old at the time of the May 16, 2018 workplace accident, and wage loss benefits were therefore payable to May 15, 2022.
On August 9, 2022, the worker appealed the Review Office decision to the Appeal Commission and a hearing was arranged.
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations under the Act, and policies established by the WCB's Board of Directors. The provisions of the Act that were in effect at the time of the May 16, 2018 accident are applicable.
Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.
Subsection 39(2) of the Act addresses 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) provides an exception with respect to workers who are 61 years of age or older at the time of the accident, and reads as follows:
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.
The worker was self-represented and made a presentation to the panel at the hearing.
The worker's position was that he has not recovered from his May 16, 2018 workplace injury and is, or should be, entitled to wage loss benefits beyond May 15, 2022.
The worker submitted that his right shoulder and right hand injury would never have occurred if the WCB had not sent him back to work on modified duties before his knee injury from a 2016 WCB claim was completely healed. The worker submitted that the WCB should take responsibility for forcing him to return to work too early on that previous claim, and provide him with some form of wage loss or long-term disability payments going forward.
The worker submitted that he never had a planned retirement date. His plan was not to retire but to start a small company of his own with a few workers, but that never happened because of the injury to his left leg and knee in 2016 and the injury to his right shoulder, which changed all his plans.
The worker stated that more importantly, the injuries he has suffered are permanent and have changed his life, including his health and his quality of life, forever. He said he lives with constant pain, sleepless nights, medication and braces.
The employer did not participate in the appeal.
The issue before the panel is whether or not the worker is entitled to wage loss benefits after May 15, 2022. For the worker's appeal to be successful, the panel must find that the worker is entitled to wage loss benefits beyond that date in the circumstances of this case. The panel is unable to make that finding, for the reasons that follow.
The panel notes at the outset that while the worker referred to the previous 2016 claim, this appeal deals only with the worker's 2018 claim and the issue of the worker's entitlement to further wage loss benefits.
In this regard, the panel notes that the amount and duration of wage loss benefits which are payable to a worker are expressly set out in the Act. 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 those 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 evidence shows, and the worker confirmed at the hearing, that he was 71 years of age at the time of the accident. The worker has argued that he should be entitled to wage loss benefits for more than 48 months after the date of his accident in the circumstances of his case. The panel is unable to accept the worker's argument.
Subsection 39(3) specifically authorizes payment of up to a maximum of 48 months of wage loss benefits "following the date of the accident." In the panel's view, the wording of that provision is clear and unambiguous. The panel is unable to identify anything in the Act or WCB policies which would allow wage loss benefits to be extended or continued beyond the 48 months that are stipulated in the Act.
The workplace accident occurred on May 16, 2018. The 48-month period was therefore determined to have ended on May 15, 2022. Evidence on file indicates the worker was paid wage loss benefits through to that date, and the worker acknowledged at the hearing that he was paid wage loss benefits for a period of 48 months after the date of the accident. The panel is satisfied that this is the maximum length of time which is authorized under the Act for the payment of wage loss benefits.
The panel accepts that the worker intended to continue working and had no plans to retire. The panel acknowledges the worker's ongoing issues and difficulties, but is unable to find that he is entitled to further wage loss benefits in the circumstances of this case.
The panel therefore finds that the worker is not entitled to wage loss benefits after May 15, 2022.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 27th day of January, 2023