The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker appealed the decision of the Workers Compensation Board ("WCB") that they are not entitled to wage loss benefits after July 25, 2022. A hearing took place on January 22, 2025 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after July 25, 2022.

Decision

The worker is not entitled to wage loss benefits after July 25, 2022.

Background

The WCB accepted the worker’s claim for an incisional abdominal hernia as a result of an incident at work on July 26, 2018. A nurse practitioner assessed the worker on July 28, 2018, diagnosing a possible umbilical hernia and recommending the worker seek further medical treatment and perform modified duties. A surgeon assessed the worker on August 7, 2018 and diagnosed mid-abdominal incisional hernia, noting the worker would need surgery at a later date following an already scheduled CT scan. In discussion with the WCB on August 17, 2018, the worker confirmed how the injury occurred and that they had a previous claim for a hernia. The worker advised that a CT scan was scheduled for January 2019 in relation to their previous hernia, and that they continued to work modified duties. On November 9, 2018, a WCB medical advisor reviewed the worker’s file and confirmed that the mechanism of injury, in the context of the worker’s previous hernia, supported the diagnosis of incisional abdominal hernia.

After surgery on May 3, 2019, the worker was initially to remain off work until July 21, 2019 and the WCB provided full wage loss benefits. On July 3, 2019, the surgeon recommended a return to work on a graduated basis with updated restrictions in place for two months. The WCB provided those restrictions to the employer on July 19, 2019 but due to ongoing concerns with the worker’s recovery, the treating family physician recommended they remain off work until September 3, 2019 and then return to full duties. On August 19, 2019, the employer advised the WCB that they attempted to find an accommodated position for the worker, but that the worker was laid off due to a shortage of work.

The worker attended a call-in examination with a WCB medical advisor on October 6, 2020, who examined the worker and outlined permanent restrictions. As the worker was permanently laid off, the WCB then referred the worker to vocational rehabilitation services. On December 15, 2020, the WCB determined that given the permanent restrictions and the worker’s age, they were deemed unemployable.

On December 16, 2020, the WCB advised the worker that they would receive full wage loss benefits until they reach the 4-year mark of their claim, noted as July 25, 2024. On March 16, 2021, the WCB spoke with the worker to provide an update and advised that there was a typographical error in the December 16, 2020 letter, which should have noted that wage loss benefits would be paid until July 25, 2022, which the WCB confirmed in a letter to the worker of the same date. On March 4, 2022, the WCB confirmed to the worker that their entitlement to wage loss benefits would end as of July 25, 2022.

On July 6, 2022, the worker requested Review Office reconsider the WCB’s decision to end their entitlement to wage loss benefits, noting they relied on the initial end date of July 25, 2024 in making financial decisions. Review Office determined on July 14, 2022 that the worker was not entitled to wage loss benefits after July 25, 2022. The worker appealed the Review Office decision to the Appeal Commission on May 22, 2024 and a hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the “Act”), regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the Act in effect as of the date of the worker’s accident apply.

Section 4(1) of the Act provides for compensation to be paid by the WCB where a worker has sustained personal injury by accident arising out of and in the course of employment, and s 4(2) outlines that a worker injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid because of an accident, compensation is payable under s 37 of the Act. Section 39 of the Act sets out that wage loss benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years but if a worker was 61 years of age or older when the loss of earning capacity began, wage loss benefits may be paid for up to 48 months following the date of accident.

Worker’s Position

The worker appeared in the hearing represented by legal counsel who made oral submissions in support of the worker’s appeal. The worker offered testimony through answering questions posed by their lawyer and by members of the appeal panel.

The worker’s position is that they should be entitled to rely upon the WCB’s December 16, 2020 correspondence to them outlining that they are entitled to wage loss benefits through to July 25, 2024 and that fairness demands the appeal panel should exercise discretion to extend the worker’s wage loss entitlement beyond the statutory limit of 48 months after the date of accident as the worker relied on that communication in making subsequent financial arrangements.

Counsel submitted that as the worker continues to experience the effects of the compensable injury and has further medical treatment planned in relation to that injury, they remain impacted by the compensable accident and had not recovered by the date the benefits were terminated. Furthermore, the worker may have a mental health condition that could potentially be related to the workplace injury.

Counsel acknowledged that the Act provides that the worker’s wage loss entitlement ended 48 months after the date of accident but submitted that the panel has discretion to extend that entitlement where fair and equitable to do so and that in these circumstances, where the WCB erred in providing the information as to the end date to the worker and the worker relied on that information to their detriment, it is appropriate to exercise that discretion.

Analysis

The worker’s appeal arises out of the WCB’s application of s 39(3) of the Act which provides that a worker who is 61 years of age or older at the time they experience a loss of earning capacity arising from a compensable workplace injury is entitled to wage loss benefits for up to 48 months after the date of accident. For the worker’s appeal to succeed, the panel would have to find that this provision does not apply or was incorrectly applied by the WCB in the present case. As detailed in the reasons that follow, the panel was not able to make such findings and is satisfied that the provisions of s 39(3) are applicable and therefore, the worker is not entitled to wage loss benefits after July 25, 2022.

The panel noted that at the date of accident, on July 26, 2018, the worker was 68 years of age. The evidence indicates the worker’s stated intention to work until they reached 80 years, and that the worker had no plans to retire at the time of the accident. Following the accident, the evidence indicates that the worker continued to work, at modified duties as recommended by their treatment providers, until the surgery in May 2019, at which time the worker sustained a loss of earning capacity as a result of this accident and became entitled to receive wage loss benefits from the WCB. The panel noted that the WCB determined on December 15, 2020 that the worker was deemed unemployable having determined that permanent restrictions were in place and the worker was permanently laid off due to the employer’s lack of work. At the time of that decision, the worker was 71 years of age.

The panel considered that s 39 of the Act provides for payment of wage loss benefits to an injured worker until their loss of earning capacity ends or they reach 65 years of age, but that when a worker is at least 61 years of age at the time they experience a loss of earning capacity, they may be entitled to wage loss benefits up to 48 months following the date of accident. The Act does not set out any exceptions to these limits, and as such, the panel is bound by these provisions.

In the present case, the WCB initially erred in its communication of this decision to the worker, as set out in the letter to the worker of December 16, 2020 which states “Wage loss benefits will continue until you reach the 4 year mark of your claim July 25, 2024, unless your earning capacity changes.” This error was noted by the WCB during a telephone conversation with the worker on March 16, 2021 at which time the worker was advised that the end date of 2024 was a typographical error, with benefits payable only for up to 4 years from the date of the claim. The WCB confirmed this by letter to the worker of March 16, 2021, which describes a pending change to the worker’s claim but fails to acknowledge in writing that the change is the result of an error made by the WCB and further does not acknowledge that this “change” may have a negative impact upon the worker. Although technically accurate, the panel noted the letter failed to communicate to the worker that the WCB made an error or to acknowledge the potential effect of that error on the worker.

Counsel for the worker urged the panel to exercise discretion by extending the worker’s wage loss entitlement beyond the statutory limit; however, the panel is bound by the legislation which contains no exceptions to that limit and provides no discretion to the panel in respect of this issue. We accept the worker’s testimony that they relied on the WCB’s initial communication as to the end date of their benefit entitlement and made their financial arrangements on that basis; however, the panel does not have any discretion to provide the relief the worker requested through their counsel.

Based on the evidence and on the standard of a balance of probabilities, the panel is satisfied that the worker is not entitled to wage loss benefits after July 25, 2022. The appeal is denied.

Panel Members

K. Dyck, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 31st day of January, 2025