The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

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

1. They have been overpaid $122,285.32 for 2019, 2020 and 2021; 

2. The overpayment must be repaid; 

3. They are not entitled to wage loss benefits; and 

4. They are not entitled to vocational rehabilitation services.

A videoconference hearing was held on November 9, 2023 to consider the worker's appeal.

Issue

1. Whether or not the worker has been overpaid $122,285.32 for 2019, 2020 and 2021; 

2. Whether or not the overpayment must be repaid; 

3. Whether or not the worker is entitled to wage loss benefits; and 

4. Whether or not the worker is entitled to vocational rehabilitation services.

Decision

1. The worker has not been overpaid $122,285.32 for 2019, 2020 and 2021 and the WCB must recalculate the amount of the overpayment; 

2. The overpayment must be repaid; 

3. The worker is entitled to wage loss benefits; and 

4. The worker is entitled to vocational rehabilitation services.

Background

The WCB accepted the worker’s claim for an injury to their right shoulder that occurred on May 19, 1999 when the worker fell down a flight of stairs at work. The WCB initially accepted the claim based on a dislocated right shoulder and later included a full thickness subscapularis tear. As a result of the accident, the worker underwent three surgeries including the most recent on January 3, 2019, which included a right shoulder scope, biceps tenotomy, subscapularis repair, and open suprapectoral biceps tenodesis and removal of a loose body. Prior to the January 3, 2019 surgery, the worker was not receiving any WCB wage loss benefits, but was self-employed in various capacities, including with a business they established and as a farmer. Following the surgery, the worker received wage loss benefits and continuing medical aid in the form of physiotherapy and treatment with their healthcare providers. The worker’s wage loss benefits following the compensable were initially calculated based on indexing of the worker’s wages at the date of accident, with ongoing indexing thereafter.

On August 25, 2021, a WCB medical advisor reviewed the worker's file and placed permanent restrictions of no lifting over ten pounds from waist to shoulder and above, and all right upper limb movements within the body envelope. The WCB referred the worker for vocational rehabilitation services on September 23, 2021.

The WCB contacted the worker to obtain further income information to confirm the worker’s wage loss benefits were correctly calculated as the worker indicated they had no other income on an Other Income Information form provided to the WCB on February 19, 2021. The WCB noted the worker reported a home business that shut down in 2019 and the WCB requested copies of business activities statements. On October 5, 2021, the worker provided the WCB with copies of the 2016 and 2017 statements, with 2018 information provided on October 18, 2021 and 2019 information received on October 19, 2021. On contacting the worker on October 20, 2021 to discuss the information received, the WCB noted the worker had reported self-employment income for 2019, which the worker stated related to work done in 2018. The WCB advised the worker the information provided conflicted with the income information the worker had previously provided and indicated the worker had returned to work but had not notified the WCB. The worker advised they would contact their accountant and provide further clarification.

On October 21, 2021, a WCB payment assessor reviewed the income information provided and calculated the worker’s compensable earnings and average gross weekly earnings for 2019. At the request of the WCB Case Manager, the payment assessor calculated an overpayment for 2019 based on the worker’s reported earnings and on November 9, 2019, the WCB advised the worker that due to their failure to report their 2019 earnings and their return to work, they were overpaid $44,244.64, which amount was required to be repaid. Further, the WCB advised the worker that their earnings for 2020 and 2021 would also be reviewed.

A WCB medical advisor reviewed the worker’s file on November 17, 2021, and found the evidence indicated the worker was demonstrating more function in their right shoulder/arm than they reported to the treating healthcare providers and concluded that level of activity indicated the worker had the capacity and tolerance to perform their pre-accident duties. The WCB provided a decision letter to the worker on November 18, 2021 advising it had determined the worker no longer had a loss of earning capacity related to the workplace injury and as such, they were not entitled to wage loss benefits or vocational rehabilitation services.

The WCB received the 2020 income tax information for the worker on December 17, 2021 and a WCB payment assessor reviewed the information on December 20, 2021. On the same date, the WCB requested a copy of the worker’s 2020 statement of business activities.

On January 20, 2022, as the worker had not provided the requested information, the WCB determined the wage loss paid to the worker in 2020 and 2021 would be considered as overpayment. On February 14, 2022, the WCB payment assessor calculated the worker’s overpayment of 2020 and 2021 as $78,040.68 and the WCB provided a letter to the worker on February 16, 2022 indicating the total overpayment for 2019, 2020 and 2021 was $122,285.32 and they were responsible for repayment of the full amount.

On August 15, 2022, the worker requested Review Office reconsider the WCB’s decisions, noting that they were involved in a non-compensable motor vehicle accident in December 2020 which left them with severe injuries as a result of which, they were taking strong medication and felt their ability to deal with the requests for information from the WCB was impaired. Further, the worker noted that while they did have some income from their farming operations, that income was severely limited as they could not physically perform the work needed to be done due to their compensable injury and relied on assistance from family members. The worker noted they continued to suffer the effects of the May 19, 1999 workplace accident and required ongoing wage loss benefits and vocational rehabilitation services so they could find employment within their permanent restrictions. The worker provided a further submission to Review Office on September 2, 2022 after requesting clarification of the overpayment calculations from the WCB. The worker noted the income information provided indicated they received income but indicated that income was passive income received from the sale of assets and other payments received in their name rather than their spouse’s name.

Review Office determined on October 14, 2022 that the worker was overpaid $122,285.32 for 2019, 2020 and 2021, the overpayment must be repaid, and the worker is not entitled to wage loss benefits or vocational rehabilitation services. Review Office relied on the September 23, 2022 final investigation findings report provided by the WCB’s Compliance Services Department to the worker, which detailed the investigation into the worker’s reported income. Review Office placed weight on the findings by Compliance Services that the worker misrepresented their earnings and withheld income information, finding the worker had earnings for 2019, 2020 and 2021 that they did not report to the WCB and in addition, the worker had returned to work for a business they ran, again without advising the WCB. Review Office found that while the worker had permanent restrictions for their right shoulder, those restrictions did not prevent the worker from engaging in employment activities in 2019, 2020 and 2021. Review Office further found that, pursuant to the WCB’s policies, as the overpayment was a result of “…fraud, deliberate misrepresentation and delays in providing or withholding of key information by the worker/dependant,” the worker was required to repay the overpayment. Having determined the worker had employment earnings in 2019, 2020 and 2021, Review Office further concluded the worker was not entitled to wage loss benefits or vocational rehabilitation services.

The worker filed an appeal with the Appeal Commission on January 3, 2023 and a hearing was arranged. Following the hearing, the appeal panel requested additional information prior to discussing the case further. After the requested information was later received, the appeal panel met on January 22, 2024 and January 26, 2024 to discuss the case and render its decision on the issues under appeal.

Reasons

Applicable Legislation and Policy

In determining the worker’s appeal, the panel is bound to apply the provisions of The Workers Compensation Act (the “Act”) and regulations under that Act as well as the policies established by the Workers Compensation Board. The provisions of the Act in force at the time of the accident are applicable.

The Act provides in s 4(1) that when a worker sustains personal injury by accident arising out of and in the course of employment, they are entitled to compensation for their loss of earnings resulting from that accident. Section 4(2) provides that wage loss benefits are payable for an injured worker’s loss of earning capacity resulting from a workplace accident on any working day after the day of 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. The Act also sets out how a worker’s loss of earning capacity is determined. Section 40 of 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.

Section 27(20) of the Act provides that the WCB may provide academic or vocational training, rehabilitative or other assistance to a worker where, because of an accident, the worker:

(a) could, in the opinion of the board, experience a long-term loss of earning capacity; 

(b) requires assistance to reduce or remove the effect of a handicap resulting from the injury; or 

(c) requires assistance in the activities of daily living.

The Act further provides that overpayment of compensation may be recovered from the recipient, as follows:

Recovery of overpayments 

109.2 Where a person receives an overpayment of compensation, being an amount that the board determines is in excess of that to which the person is entitled, the board may recover the overpayment from the person, or from the executors or administrators of the person, as a debt due to the board.

The WCB established Policy 35.40.50, Overpayment of Benefits (the “Overpayment Policy”) to outline when the WCB will recover overpayments from an injured worker or their dependant. The Policy sets out that while the WCB strives to prevent overpayments of benefits, payment of benefits in as timely a manner as possible means that some overpayments will inevitably occur. The Policy goes on to provide, in part, that “All overpayments will be pursued for recovery when …. there is evidence of fraud, deliberate misrepresentation, delays in providing or withholding of key information by the injured worker or worker's dependant affecting benefit entitlement…” but that the WCB will not pursue an overpayment when:

1. the overpayment is less than $50; or 

2. the overpayment resulted from an adjudicative or entitlement decision reversal at the primary level, Review Office or Appeal Commission.

The Overpayment Policy also sets out that except for overpayments resulting from fraud, deliberate misrepresentation, withholding of key information by the worker or dependant or duplication of benefits paid from another source for the same injury, the WCB may decide not to pursue an overpayment when:

1. the receivable amount is not cost-effective to pursue; 

2. recovery of the overpayment, in whole or in part, would create financial hardship for the injured worker or the worker’s dependant; 

3. the individual who received the overpayment has died without sufficient funds in the estate to cover the overpayment; or 

4. the overpayment occurred more than three years prior to its discovery by the WCB.

The WCB also established Policy 43.00, Vocational Rehabilitation, (the “VR Policy”) which outlines the goals, terms, and conditions of academic, vocational, and rehabilitative assistance available to workers under s 27(20) of the Act. The VR Policy sets out, in part, that:

1. The goal of vocational rehabilitation is to help the worker to achieve a return to sustainable employment in an occupation which reasonably takes into consideration the worker's post-injury physical capacity, skills, aptitudes and, where possible, interests. 

2. The WCB will help the worker as much as possible to be as employable as she or he was before the injury or illness. Once this is done and when necessary, the WCB will provide reasonable assistance to the worker so that she or he actually returns to work. However, services may not always continue until the worker actually returns to work. 

3. Vocational rehabilitation strives to return workers to the salary level they were earning before the injury or illness. 

4. To meet these objectives, the following solutions (hierarchy of objectives) will be considered and pursued in the sequence below: 

a. Return to the same work with the same employer. 

b. Return to the same work (modified) with the same employer. 

c. Return to different work with the same employer. 

d. Return to similar work with a different employer. 

e. Return to different work with a different employer. 

f. Retraining and re-education. 

While retraining and re-education is one of the last options it may be provided as part of one of the other options. 

… 

6. The return-to-work process applies to all claims. For all injuries or illnesses occurring on or after January 1, 2007, the return-to-work process will be considered jointly with the obligation to reemploy as provided for in section 49.3 of the Act and policy 43.20.25, Return to Work with the Accident Employer. 

7. Return to work with the pre-injury employer involving the first three of the hierarchy of objectives is principally the responsibility of the Case Manager. When a Case Manager determines that return to work solutions with the pre-injury employer listed in paragraph 4 a, b and c above are not possible, then the worker may be assessed for vocational rehabilitation services by a Vocational Rehabilitation Consultant who will consider the solutions listed in paragraph 4 d, e, and f above. 

II. Eligibility 

1. A worker will receive vocational rehabilitation services when: 

a. The worker experiences a long-term loss of earning capacity; 

b. It is reasonably determined that the worker will be unable to perform the pre-injury work without help; or 

c. There are reasonable indicators that there is a risk of chronicity. 

Under these circumstances, vocational rehabilitation is intended to speed up or improve the chances of the worker returning to the pre-injury or alternate work. 

Worker’s Position 

The worker appeared in the hearing represented by legal counsel who made an oral submission on behalf of the worker and provided a further written submission following the hearing in response to the panel’s request. The worker offered testimony through answers to questions posed to them by their legal counsel and by members of the appeal panel.

The worker’s position with respect to the first question on appeal is that the overpayment amount is not correct in that the worker was entitled to wage loss benefits in 2019, 2020 and 2021, although the amount of those benefits needs to be recalculated and determined taking into account that the worker was not actively engaged in the business or work of farming or in the self-employment activities and only directed others to do the work involved in earning the income from those sources. The worker submitted that they did not earn any income from “work” in relation to farming. The worker further noted that while the income from farming is fully attributed to the worker in 2019, this was family income and could easily have been split with or attributed to the worker’s spouse. The worker noted the advice of their accountant was to have the worker declare all the farming income to minimize the tax burden on their spouse. The worker further submitted that the business based on a sale of a product they invented early in the 2000s wound up beginning in 2019 as the worker was unable to continue working, and that although their child has taken on a similar business, the worker is not involved in that business as a manager or employee or in any way other than as a parent who provides parental advice and assistance. The worker acknowledged that they ought to have disclosed the income from the other self-employment in 2019 and 2020 but confirmed that they did not actively do any work in relation to that income other than managing and overseeing it. Further, the worker stated that they did not receive any of this income as it was bound up in the bankruptcy proceedings in 2020. The worker submitted that while some portion of the income should be considered in determining their loss of earning capacity, it should be no more than half of the total amount received.

The worker’s position on the question of repayment of any overpayment is that the overpayment resulted from the worker’s inadvertent misstatement or miscommunication with the WCB and are not the result of any deliberate attempt by the worker to misrepresent or withhold information, and therefore the WCB is not required to and should not pursue the overpayment.

The worker’s position on the question of wage loss entitlement is that they remained entitled to wage loss benefits after the surgery of January 3, 2019 as they remained disabled from all physical labour and further, that after the motor vehicle accident in December 2020 they were further disabled. The worker submits that the evidence confirms they have a loss of earning capacity after January 3, 2019 that continued through to November 2021 when their benefits were terminated by the WCB.

The worker’s position on the question of entitlement to vocational rehabilitation services is that because they were unable to return to their pre-accident employment as a result of the chronic effects of the workplace injury and because of the permanent restrictions placed in August 2021, the worker experienced a long-term loss of earning capacity and required VR services to support their return to work process in the context of those permanent restrictions.

Employer’s Position

The employer did not participate in the appeal.

Analysis

This appeal relates to the worker’s entitlements arising out of the injuries sustained in the compensable workplace accident of May 19, 1999, specifically in the form of wage loss benefits and vocational rehabilitation services from the WCB beginning in January 2019. The worker appealed from the decision of Review Office in relation to four issues and the panel’s decisions and reasons in respect of each issue are set out below.

In considering the evidence in this appeal, the panel noted the worker’s reluctance to provide information requested by the WCB and inconsistency in the information they provided to WCB. The worker admitted in the hearing to having significant distrust of the WCB arising from the history of this claim, which is demonstrated by the pattern of delay in and resistance to providing information to the WCB from 2019 onwards. The panel further noted that the worker’s approach to the claim impacted the adjudication of the claim and resulted in negative findings of credibility against the worker. The panel also found the worker to be reluctant to provide clear answers to questions in the hearing and unable to recall relevant information in relation to their claim. The panel did not find the worker’s evidence to be credible in all respects, and as a result, in considering the evidence and making our determinations, we gave less weight to the worker’s evidence when it was not corroborated by other documentation or evidence, and greater weight when there was corroboration.

Is the worker entitled to wage loss benefits? 

For the worker’s appeal on this question to succeed, the panel would have to determine that the worker sustained a loss of earning capacity in the period at issue, from 2019 – 2021, arising from the injuries sustained in the compensable workplace accident of May 19, 1999. As outlined in the reasons that follow, the panel was able to make such a finding and therefore the worker’s appeal on this question is granted.

The panel considered the medical information as to the worker’s status in relation to the compensable surgery of January 3, 2019. We noted that in providing approval for the surgery, the WCB medical advisor outlined on June 18, 2018 that the surgery was appropriate and related to the compensable injury, with anticipated recovery in 6-12 months, unless the tear could not be repaired in this case recovery was expected in 3-6 months with a greater risk of residual effects. The post-operative report and follow-up reports from the treating orthopedic surgeon indicate the procedure seemed to be successful and that the worker’s recovery was not complicated by any unanticipated events. On January 28, 2019, the treating surgeon comments that the worker would not be fit for work until about 4 months post operative. On April 3, 2019 (at exactly 4 months post-surgery) the surgeon reported that the worker was “not able to work on a heavy job and would be restricted to extremely light duties and sedentary activity until” reassessment in 3 months.

The panel noted that on May 15, 2019, the treating physiotherapist outlined some concerns in respect of the worker’s progress toward recovery and requested that the WCB physiotherapy advisor assess the worker. In a WCB Healthcare Service Request of the same date, the case manager outlined their questions to the WCB physiotherapy advisor, which led to the call-in examination of May 29, 2019. In the interim, the treating physiotherapist submitted their request for additional treatment authorization on May 23, 2019, in which they indicated that the worker was capable of sedentary duties. The call-in examination notes of May 29, 2019 indicated that the worker was “relatively early in [their] recovery” and that “Return to work recommendations will be made following the specialist appointment.”

The file evidence confirms that the worker saw the treating surgeon again on August 21, 2019 at which time the surgeon indicated that the worker needed “to work on strength and posture through physio before [they] can safely return to [their post-accident occupation]. On August 28, 2019, the treating physiotherapist again advised the WCB that the worker was capable of sedentary work activities, and on October 18, 2019, the physiotherapist outlined that the worker was cleared for office duties and able to lift 2 pounds with their right arm, engage in limited repetitive activities and should avoid overhead activities and outside of body envelope activities. The physiotherapist continued to make similar recommendations until the WCB determined in December 2019 that further physiotherapy was not warranted. On December 11, 2019, the treating surgeon indicated the worker would have a permanent disability with permanent restrictions and recommended a functional capacity evaluation (“FCE”). On January 13, 2020, the WCB medical advisor outlined that “Recovery is going about as expected” and that the worker had likely reached maximal recovery, with the treating medical providers supporting restrictions from overhead work and heavy lifting. The medical advisor agreed that an FCE would be appropriate. The panel noted that evaluation was scheduled to take place on February 12, 2020, and then rescheduled to March 10, 2020 at which point it was cancelled “pending further medical investigation”. The panel noted that an MRI of January 30, 2020 identified “a new full thickness subscapularis tear” which the WCB medical advisor concluded on May 4, 2020 was related to the compensable injury and would require conservative management, with no prognosis for full recovery or a return to manual labour. In October 2020, the treating surgeon again assessed the worker, noting continued severe pain and restricted range of motion, with likely adhesive capsulitis. The surgeon recommended physiotherapy and noted the worker “…will need permanent disability or a sedentary job” and would be unable to continue farming. On reviewing the surgeon’s report, the WCB medical advisor stated on November 10, 2020 that “With such limited [range of motion], an FCE isn’t likely to give much useful information now….With [the worker’s] ROM now, [they] would only be able to use the right arm within the body envelope, so [they] would basically be fit for sedentary level tasks…..”

On reviewing the worker’s file, the panel did not note any discussions between the WCB and the worker in 2019 relating to the worker’s potential return to work until mid-2021, despite the recommendations contained in the medical reporting that indicated the worker was capable of sedentary duties beginning as of April 3, 2019 and continuing through to November 2020. The panel also noted the evidence that the worker sustained further injuries arising from a motor vehicle accident (“MVA”) in December 2020, with injury to the worker’s neck and upper thoracic spine reported. Nonetheless, the WCB continued to provide wage loss benefits to the worker through this period.

On August 24, 2021, another WCB medical advisor placed permanent restrictions relating to the worker’s use of their right shoulder, leading to the WCB initiating a vocational rehabilitation program for the worker, as described further below.

On November 17, 2021, a WCB medical advisor noted the file information that the worker had an unreported return to work, with farming income reported as well as other self-employment income in 2019. The medical advisor reviewed the medical reporting and the job description information provided to them by the case manager and concluded that “The level of activity [the worker] has demonstrated (farming) is not consistent with [their] presentation to treating practitioners. [Their] demonstrated level of activity would be more objective than clinical tests…so it is apparent that [the worker] has the capacity and tolerance to perform duties at the same physical level as [their] pre-accident duties….” Having considered the evidence, including the testimony of the worker, the financial records, the medical reporting, and the file information, the panel does not accept the conclusion reached by the WCB medical advisor on November 17, 2021. We do not agree that the level of activity that the worker demonstrated in 2019 while managing the wind-up of their farming operation and undertaking or overseeing the self-employment work activities is indicative of a worker capable of a return to their physically demanding pre-accident job duties as described in the November 17, 2021 medical advisor opinion and in the November 18, 2021 decision letter to the worker. There is no support for that conclusion from any of the treating medical practitioners, and indeed, the same WCB medical advisor and other WCB medical and physiotherapy advisors did not support that position before the evidence of the worker’s 2019 income sources became available. To come to any other conclusion would require the panel to accept that all the treating professionals were completely duped by the worker in relation to their post-surgical functional capacity and ongoing degree of disability arising from the workplace injury. Rather, the medical reporting supports a finding that the worker was capable of no more than sedentary duties, and the evidence in relation to the nature of the work the worker did in 2019 and in 2020 suggests that work was within their permanent physical restrictions.

The panel considered and reviewed the income information for the relevant years, including the information supplied by the worker to the WCB before the income tax returns were provided, and the information in those returns. We noted that the worker’s 2018 income tax return, on file, indicates that the worker’s income in that year leading up to the surgery of January 3, 2019, was from two primary sources – farming and commission-based (self-employment) income. The panel noted that in 2019, the worker’s income came from those same two sources, plus the WCB wage loss benefits received. The panel considered that the worker was not cleared for any kind of work duties from the date of their surgery on January 3, 2019 through to April 3, 2019 when the surgeon indicated they could undertake sedentary duties. The panel also considered the nature of the work that the worker received income from in 2019, which was work of a seasonal nature that the worker would not likely have been able to undertake or manage until the spring of 2019. We also considered that the worker maintains that although they received the income from these activities, they only oversaw or managed the work that others did. The invoices the worker provided to the WCB support this position in relation to certain farming activities in 2019, although the panel noted there is no evidence that the worker paid those invoices. Furthermore, the worker maintained that a portion of the income from farming recorded in 2019 related to efforts from 2018 and the sale of inventory arising from those efforts. The panel noted that the information contained in the schedules attached to the 2019 income tax return supports this assertion.

The panel further noted that the worker’s 2020 income tax documentation indicates income in that year from the same self-employment activities, in a gross amount significantly reduced from that in 2019, as well as from government benefits related to Covid-19 pandemic supports, and the worker’s wage loss benefits from WCB. Consistent with the information provided by the worker that their farming operation wound up in 2019, there is no farming income reported for 2020 or thereafter. The worker further advised that the self-employment work they earned income from until 2020 was no longer available after that year due to changes in industry practice.

The panel noted that the worker’s 2021 income tax documentation indicates income from WCB wage loss benefits and Covid-19 pandemic supports as well as RRSP income and does not include any self-employment income.

The panel gives significant weight to and relies upon the income tax return information provided, noting that a chartered professional accountant prepared the worker’s returns.

The panel also reviewed and considered the findings of the WCB Compliance Services investigation, as set out in the final report of September 22, 2022. We note that as a result of the findings in that report, the WCB imposed administrative penalties upon the worker which are not before this panel to consider; however, the panel considered those findings in reviewing the worker’s income information for 2019, 2020 and 2021, as well as the related evidence, to determine whether there is any evidence that the worker continued to earn any income from or to provide services to the business they established in 2001 based on a product they invented, nor to the successor business operated by the worker’s child. The panel noted that the conclusions drawn in that investigation in relation to the worker’s ongoing involvement in this business are based upon inference, conjecture, and possibility, but have little foundation in objective evidence. As such, the panel gives little weight to these findings which are not supported by any other evidence before us.

We are satisfied based on the evidence before us that the worker had a complete loss of earning capacity from the date of their surgery on January 3, 2019 until cleared for sedentary work duties by the treating surgeon. We further find, based on the evidence that the worker did return to work in or about the spring of 2019, that the worker demonstrated an ability to undertake at minimum sedentary duties and as a result, they were able to reduce their loss of earning capacity in that year. Based on the evidence before us and on the standard of a balance of probabilities, the panel is satisfied that the evidence supports a finding that the worker was entitled to full wage loss benefits from the date of surgery on January 3, 2019 through to April 3, 2019 when the worker was authorized to return to sedentary duties. Thereafter, and for the balance of 2019, the worker’s loss of earning capacity must be recalculated considering the worker’s actual earnings from all employment and self-employment activities, including farming, net of appropriate expenses, but excluding any income that relates to such activities in any prior calendar years such as prior year inventory adjustments or sales. The panel directs the WCB to recalculate the worker’s actual earnings for 2019 on this basis, and to determine any further wage loss entitlement in that year based upon the worker’s actual earnings from April 3, 2019 onwards.

For the calendar year 2020, the panel considered that there is evidence of a further tear injury related to the compensable injury, first diagnosed in January 2020, and that by later in 2020, the worker was developing adhesive capsulitis in their shoulder. Nonetheless, there is also evidence that the worker was able to resume self-employment activities in 2020, earning income from that work. While the planned FCE did not take place, based on the evidence, the panel is satisfied that the worker was not fully recovered and continued to sustain a loss of earning capacity arising from the compensable workplace injury. Nonetheless, the evidence also confirms that the worker demonstrated a continuing ability to engage in at least sedentary job duties and was able to reduce their loss of earning capacity in 2020 to an extent. Based on the evidence before us, we find that the worker was capable of employment in 2020, as demonstrated, but remained unable to resume the employment they held prior to the surgery in January 2019. As such, we are satisfied that the worker continued to sustain a loss of earning capacity arising from the compensable injury and is entitled to partial wage loss benefits. The panel directs the WCB to recalculate the worker’s actual earnings for 2020 on this basis, and to determine the extent of their wage loss entitlement based upon their actual pre-surgical earnings and considering the worker’s actual earnings in that year.

For the calendar year 2021, the panel noted that following the further injury sustained by the worker in the motor vehicle accident of December 2020, the worker continued to receive wage loss benefits. The evidence does not support a finding that those injuries had any impact upon the worker’s compensable workplace injury. As such, we are satisfied that because of the workplace injury, the worker remained capable of at least sedentary job duties and was entitled to continuing wage loss benefits for 2021. That entitlement continued while the worker actively participated in the VR services arranged by the WCB in the fall of 2021 until those services were discontinued as of November 17, 2021 when the WCB discontinued the worker’s benefits and deemed them capable of a return to their pre-accident employment. The panel finds that there is no evidence that the worker returned to any other employment in 2021, despite making applications and participating in interviews while supported by the VR services. As such the panel finds that the worker is entitled to full wage loss benefits in 2021 to the termination of their VR program on November 17, 2021, but the panel makes no findings as to the worker’s wage loss entitlement beyond November 17, 2021 as such further entitlements will need to be adjudicated by the WCB in light of the present decision.

Is the worker entitled to vocational rehabilitation services? 

For the worker’s appeal on this question to succeed the panel would have to determine that as a result of the worker’s injury, they sustained a long-term loss of earning capacity, cannot return to their pre-accident employment without support or have a risk of chronicity such that they require vocational rehabilitation (“VR”) support to achieve a return to sustainable employment and their pre-accident income level. As detailed below, the panel is satisfied that the worker is entitled to the VR services and therefore the worker’s appeal on this question is granted.

The Act permits the WCB to provide VR services when it determines that a worker “…could, in the opinion of the board, experience a long-term loss of earning capacity” as a result of a compensable injury. The VR Policy sets out that the goal of vocational rehabilitation is to help the worker to achieve a return to sustainable employment in an occupation which reasonably takes into consideration the worker's post-injury physical capacity, skills, aptitudes and, where possible, interests, and that the WCB will help the worker as much as possible to be as employable as she or he was before the injury or illness, providing “reasonable assistance to the worker” until they return to work, although services may not always continue until the worker actually returns to work. The Policy also confirms that a worker is eligible for VR services when they experience a long-term loss of earning capacity, or it is determined that the worker will be unable to perform the pre-injury work without help, or there are reasonable indicators of a risk of chronicity and notes that eligibility for VR services is distinct from eligibility for wage-loss and other benefits such as medical-aid benefits.

The WCB initially determined that the worker was entitled to VR services after the worker’s permanent restrictions were established in late August 2021, as outlined in a file memo from September 1, 2021. That memo noted the services were required based on the worker’s permanent restrictions and the fact that the worker could not return to work with the accident employer. The file evidence indicates that the worker actively participated in the VR process, working with the consultant to update their resume, assess their transferable skills, abilities, and interests, and to begin applying for work. This process continued through the fall of 2021 until November when the WCB determined that the worker was no longer entitled to VR services based on its finding that the worker did not have a loss of earning capacity in 2019.

The evidence before the panel confirms that the worker was not capable of returning to their pre-injury work and has a chronic condition with permanent restrictions in place that effectively restricted the worker’s job prospects to sedentary employment. As the case manager noted in the September 1, 2021 file memo, the worker had permanent limitations arising from the workplace injury of May 19, 1999, as well as several substantial and non-compensable health conditions, and likely would require a shoulder replacement surgery at some point in the future. The worker had been employed prior to the surgery in 2019 but not in their pre-accident employment and the pre-surgery employment was not available to the worker. Based on these facts, the WCB determined the worker was eligible for VR services. The panel does not find that any of these factors were changed or impacted by the fact that the worker earned income from self-employment and farming sources in 2019 and 2020. There is no evidence that when the WCB determined the worker was eligible for VR services on September 1, 2021, the worker had any source of income other than WCB wage loss benefits, nor is there evidence that the worker had any other source of income at the time those VR services were provided. Further, there is no evidence that the worker failed to actively participate in the VR services offered to them. The panel also noted the information in the claim file indicates that by late October, the worker was already actively applying for work, having received support from the VR consultant in preparing for that process.

Based on the evidence before the panel, and on the standard of a balance of probabilities we are satisfied that the worker is entitled to VR services.

Was the worker overpaid in the amount of $122,285.32 for 2019, 2020 and 2021? 

This question arises from the WCB’s determinations that the worker was overpaid in wage loss benefits in the years 2019-2021. For the worker’s appeal on this question to succeed, the panel would have to determine either that there was no overpayment or that if there was an overpayment, it was in an amount other than $122,285.32. As detailed below, the panel determined that the amount of overpayment for 2019, 2020 and 2021 was not correctly calculated and will need to be reviewed and recalculated by the WCB. Therefore, the worker’s appeal on this question is successful.

Having reviewed the evidence as to the worker’s actual income in 2019, 2020 and 2021, together with the medical reporting and other file information, as well as considering the information provided by the worker in the hearing and subsequently, and having found, as set out above in this decision that the worker’s entitlement to wage loss benefits continued through to November 17, 2021, with a recalculation required to take into account the worker’s actual earnings in the relevant years, the panel is satisfied that the overpayment amount of $122,285.32 is not correct.

Based on the evidence and on the standard of a balance of probabilities, we are satisfied that the amount of overpayment for 2019, 2020 and 2021 is not correctly calculated and therefore find that the worker has not been overpaid $122,285.32 for those years.

Must the overpayment be repaid? 

This second question presumes that there is an overpayment and as outlined above, the panel is satisfied that more likely than not, there is an overpayment to the worker in terms of wage loss benefits during the period of 2019 – 2021, although the specific amount of that overpayment is not yet determined. For the worker to succeed on this question, the panel would have to determine that the overpayment did not result from fraud, deliberate misrepresentation, withholding of key information by the worker, or from duplication of benefits paid from another source for the same injury. As detailed below, the panel was not able to make such a finding and therefore the worker’s appeal of this question is denied.

The WCB’s Overpayment Policy outlines when the WCB will pursue overpayment of a benefit. Under the provisions of that policy, pursuing repayment of an overpayment is not discretionary or optional when there is evidence of fraud, deliberate misrepresentation, delays in providing or withholding of key information by the injured worker or their dependent that affects benefit entitlement.

While the specific overpayment amount has yet to be calculated and determined by the WCB based upon the findings of the appeal panel in this decision, the panel considered the evidence as to how the overpayment of wage loss benefits arose in this case. The overpayment of wage loss benefits in this case is the result of the worker’s failure to report to the WCB that they returned to some work in 2019 and 2020, and further as a result of the worker’s misrepresentation to the WCB as to their sources of income, in statements provided by the worker signed on December 31, 2019 and on January 13, 2021. While the worker advised the WCB of some farming related income on December 31, 2019, the information the worker provided on that statement in no way encompasses the extent of the worker’s income in that calendar year. The January 13, 2021 statement, which the panel presumes is related to the worker’s 2020 income, indicates there was no other income source in that period. The panel is satisfied that neither statement was accurate and that this was a misrepresentation on the part of the worker which was neither innocent nor inadvertent. We are further satisfied on the basis of the evidence before us that the worker did not at any time in 2019 or 2020 advise the WCB of the nature and extent of the work they were doing, related to farming and their self-employment, and as such, we find that the worker withheld key information from the WCB which the worker ought to have disclosed.

In these circumstances, based on the evidence and on the standard of a balance of probabilities, we are satisfied that any overpayment to the worker in relation to benefits paid in 2019, 2020 and 2021, must be repaid. The worker’s appeal on this question is denied.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
S. Briscoe, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 9th day of February, 2024