The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to wage loss benefits for the period November 14, 2022 to May 25, 2023. A hearing was held on March 17, 2025 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits for the period November 14, 2022 to May 25, 2023.

Decision

The worker is not entitled to wage loss benefits for the period November 14, 2022 to May 25, 2023.

Background

The worker has an accepted WCB claim for an injury to their right shoulder that occurred at work on June 25, 2022, after they slipped and fell, landing on their right shoulder. The worker attended for medical treatment at a local emergency department reporting pain in their right deltoid area. The treating physician diagnosed the worker with a soft tissue injury, provided a prescription for an anti-inflammatory pain medication and recommended the worker remain off work for one week.

In a discussion with the WCB on July 7, 2022, the worker advised that they returned to work on July 3, 2022 performing left-handed duties and modified their other duties as they could. The worker advised they had limited range of motion and a lot of pain. The worker advised they would be seeking further medical treatment. The worker attended a local urgent care centre on July 14, 2022, and was referred to a sports medicine physician. The sports medicine physician queried whether the worker had a rotator cuff injury and referred the worker for an MRI. A right shoulder MRI study conducted on September 30, 2022 confirmed the worker had "Full-thickness tearing…present within the cephalad subscapularis and the supraspinatus…The tear measures up to 3.4 cm transverse by 3.2 cm AP. There is tendinosis of the infraspinatus insertion…" The worker was referred to an orthopedic surgeon for further treatment.

On December 1, 2022, the WCB spoke with the employer who advised the worker was a seasonal employee who normally worked from the early spring until late fall and was laid off over the winter. The employer confirmed the worker was laid off at the end of their shift on November 12, 2022 and had been performing their regular duties up to that date. The employer further advised they did not have any modified duties or other work available for the worker as they were normally laid off during the winter months.

The worker was seen by the orthopedic surgeon on December 2, 2022, who opined the worker had "…sustained an acute traumatic tear…" of their rotator cuff and recommended rotator cuff tear repair surgery.

The worker spoke with the WCB on December 13, 2022, indicating they had in the past collected employment insurance during the winter layoff but had not applied for it as they were under the impression they would not be laid off. The WCB advised the worker that it had been determined based on the information from the employer that the worker was not working due to being laid off and not because of the compensable injury. As a result, the WCB advised the worker that they were not entitled to wage loss benefits.

The WCB spoke with the worker again on January 19, 2023 who advised their surgery was scheduled for January 30, 2023. The worker advised the WCB they had spoken with the employer after the last discussion with the WCB and the employer confirmed they did not have enough work for the worker, which was why the worker had been laid off. The worker noted they were in receipt of employment insurance benefits but was looking for other work as well. The WCB again advised the worker once their surgery took place, they would be placed back on full wage loss benefits. The WCB spoke with the worker again on February 8, 2023, who advised they had cancelled the scheduled surgery and would reschedule it for later in the year.

On April 25, 2023, the worker requested reconsideration of the WCB's decision not to pay wage loss benefits while they were on lay off to the Review Office. On April 26, 2023, the Review Office returned the worker's file to the WCB's Compensation Services for further investigation and as it was noted the worker had not been provided with a formal decision letter regarding this issue. The WCB spoke with the worker on May 11, 2023, who advised they would have returned to work with the employer in February or March of 2023 as they appeared to be busy however, they also noted their belief they would not have been laid off at all. On June 8, 2023, the WCB spoke with the employer who advised the winter months were slow and the worker was laid off due to a shortage of work. In addition, the employer advised that the springtime was also a little slower than normal and the lay-off recall did not happen until after the May long weekend. The employer also provided the WCB with a description of the worker's job duties. On the same date, the worker confirmed that they returned to work on May 26, 2023, but was subsequently off work on May 31, 2023 for a non-compensable health issue. The WCB provided the worker with a formal decision letter on June 15, 2023 advising that they were not entitled to wage loss benefits for the period of November 14, 2022 to May 25, 2023 as it had been determined that was the period of their seasonal lay-off due to shortage of work.

The worker again requested reconsideration of the WCB's decision to the Review Office on June 29, 2023. The Review Office found on August 24, 2023, the worker was not entitled to wage loss benefits from November 14, 2022 to May 25, 2023. The Review Office determined that period was part of a normal cyclical period of employment for the worker who worked spring, summer and fall and was laid off during the winter months, which was supported by the fact the worker was recalled to work by the employer on May 25, 2023. On September 27, 2023, the worker contacted the Review Office to advise that they had submitted copies of their pay stubs and Record of Employment to WCB on September 14, 2023, and requested that the Review Office reconsider the earlier decision on their entitlement to wage loss benefits. The worker noted their belief the payment information indicated they worked after the date the employer had advised the WCB they were laid off. On September 28, 2023, the WCB advised the worker that the information had been reviewed and there would be no change to the earlier decision that they were not entitled to wage loss benefits from November 14, 2022 to May 25, 2023.

The worker's representative submitted additional information to the Review Office on May 31, 2024 and again requested that the Review Office reconsider the worker's entitlement to wage loss benefits from November 14, 2022 to May 25, 2023. Firstly, the representative noted the WCB had, on September 21, 2023, accepted an injury the worker developed to the left shoulder as a result of overuse due to the compensable right shoulder injury. As such, the representative indicated the WCB should have reconsidered the worker's entitlement to wage loss benefits during the period noted and whether the worker was performing suitable work prior to the lay-off as they had injuries to both shoulders. With respect to the worker's assertions that they worked beyond the date of lay-off noted by the employer, the representative indicated the submitted information from the worker noted dates and times they worked into December 2022 and that they had "banked" their time with the employer, to be paid out when they were recalled the following spring. As well, the worker had provided copies of letters, signed by various customers of the employer, indicating the worker had provided services on the employer's behalf during various dates in December 2022. The representative provided this showed the worker continued to work after the date the employer had advised the worker had been laid off.

The Review Office determined on July 10, 2024, the worker was not entitled to wage loss benefits from November 14, 2022 to May 25, 2023. The Review Office found the evidence provided by the worker was that they did continue working after the lay-off date and that the injuries to their shoulders had not stopped them from performing the general duties of their position. The Review Office further found that the worker had advised the WCB they normally collected employment insurance during the winter months and returned to their job in the spring, which occurred on May 26, 2023. As such, the Review Office found the worker did not have a loss of earning capacity and was not entitled to wage loss benefits.

The worker's representative filed an appeal with the Appeal Commission on July 29, 2024, and a hearing was arranged.

Reasons

Applicable Legislation and Policy

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

Section 4(1) of the Act provides that compensation shall be paid where a worker suffers personal injury by accident arising out of and in the course of employment.

Section 4(2) states that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Section 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.

The WCB has established Policy 43.20.25, Return to Work with the Accident Employer (“the Policy”), which outlines the approach to the return to work of injured workers through modified or alternate duties with the accident employer.

The Policy also outlines when a worker is eligible for additional benefits in the case of work interruptions. The Policy provides that when determining whether a worker is eligible for additional benefits, the WCB will consider whether there is a loss of earning capacity and if so, whether or not it is due to the injury.

A list of questions or criteria is set out in the Policy for the WCB to consider in determining whether the loss of earnings was due to the injury. The questions to consider are as follows:

a) Is the work interruption expected to be temporary or long term? 

b) Is the work interruption a normal cyclical event? 

c) What is the worker’s actual earning capacity in the general labour market? 

d) Is the worker’s current wage representative of actual earning capacity, or is it partially subsidized as part of a rehabilitation initiative? 

e) Is the worker at a competitive disadvantage compared to uninjured workers so that, as a result of the worker’s injury, the worker cannot effectively compete with other workers in the job market?

If a work interruption becomes prolonged to the point where similarly employed workers are pursuing other employment opportunities, and the injury places the injured worker at a competitive disadvantage in the general labour market, then the WCB will determine whether there is an entitlement to wage-loss benefits and rehabilitation services.

Worker’s Position

The worker was present at the hearing, represented by a worker advisor. Their representative relied on their submissions made to the Review Office dated May 31, 2024 and September 7, 2025 and provided an oral submission to the panel. The worker also answered questions posed by their representative and members of the appeal panel.

The position of the worker is that they are entitled to additional wage loss benefits for the period in question.

The worker’s evidence is that they continued to work after the reported last day of work and specifically that they worked until December 20, 2022.

The worker relies on the Policy and submits that the work duties they were engaged in at the time of their lay off were not suitable, given their compensable shoulder injuries.

The worker also submits they experienced a loss of earning capacity. The worker states that they experienced a long-term layoff and as such, they did not maintain their pre-accident earning capacity. The worker further states that their injured shoulder and associated medical restrictions placed them at a competitive disadvantage against other uninjured workers within the general labour market. The worker’s ability to be competitive against other candidates for other kinds of work was significantly impacted following their lay off.

The worker is seeking entitlement to wage loss benefits for the period November 14, 2022 to May 25, 2023.

Employer’s Position

The employer did not participate in the hearing.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits for the period November 14, 2022 to May 25, 2023. For the worker’s appeal to be successful, the panel must find, on a balance of probabilities, that the evidence supports that the worker had suffered a loss of earning capacity in that period arising from the injury sustained in the compensable workplace accident of June 25, 2022. The panel was unable to make that finding, for the reasons that follow.

The panel has considered the worker’s ability to return to work following the injury on June 25, 2022, which the WCB accepted as compensable. The evidence does not demonstrate the worker was totally disabled. The panel acknowledges that the worker continued to work for approximately one month following their lay off, and the evidence available to the panel does not suggest that the worker could not complete their job duties. The worker was working and therefore did not experience a loss of earning capacity for the period of November 14, 2022 to their last day of work in December 2022.

The panel has also considered the argument that the worker was at a competitive disadvantage after they stopped working in December 2022 until they returned to work in May 2023, however the panel notes that this was the period of time the worker was typically off work each year. The evidence before the panel is that the work was interrupted due to economic conditions (specifically a shortage of work due to the absence of seasonal clients) and the worker was expected to return to employment when the seasonal clients returned in May. The Policy states that if the worker is expected to return to the previous employment in a reasonable period of time, the worker is not at a disadvantage compared to other workers at that workplace who are also experiencing a loss of earnings. As a result, the panel finds that this was a reasonable period of time for this particular worker and the worker was not at a disadvantage compared to other workers. If the worker had been off work beyond their normal lay-off recall date, for example sometime later than May, then this may have not been considered a reasonable period of time.

The panel finds that the worker experienced a temporary lay off and that this was a cyclical event. The worker would have been laid off during the period in question regardless of the injury and therefore did not experience a loss of earning capacity as a result of their workplace accident of June 25, 2022. The panel finds, on a balance of probabilities, that the worker is not entitled to wage loss benefits from November 14, 2022 to May 25, 2023.

The worker's appeal is denied.

Panel Members

R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 16th day of May, 2025