The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker appealed from the Workers Compensation Board ("WCB") decision that they are not entitled to wage loss benefits after January 31, 2024. A hearing took place on May 8, 2025 to consider the appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after January 31, 2024.

Decision

The worker is not entitled to wage loss benefits after January 31, 2024.

Background

The WCB accepted the worker’s claim for a shoulder injury that occurred at work on January 31, 2020 and provided wage loss benefits to the worker, beginning on February 1, 2020. At the time of the accident, the worker was 69 years of age. Following a surgical repair of the worker’s compensable injury on August 4, 2020, the worker received wage loss benefits until their return to work on February 20, 2021. The worker continued to experience difficulties with their shoulder and sought further treatment, resulting in a recommendation for additional surgery, which the WCB approved on February 16, 2024.

On July 31, 2024, the worker advised the WCB that they were laid off as the employer was out of business as of that date. On August 22, 2024, the WCB advised the worker that their wage loss entitlement ended as of January 31, 2024, or 48 months from the date of the accident. The WCB confirmed that the worker would remain eligible for medical aid benefits. The WCB confirmed this by letter to the worker of September 4, 2024. On September 23, 2024, the worker requested Review Office reconsider the WCB's decision, noting they continued to work and sought wage loss benefits only for the surgery and recovery period after the surgery. Review Office determined on October 17, 2024 that the worker was not entitled to wage loss benefits after January 31, 2024 based on the provisions of The Workers Compensation Act (the “Act”).

The worker filed an appeal with the Appeal Commission on January 21, 2025 and a hearing took place.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by the provisions of the Act, regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the Act in effect at the time of the accident are applicable.

A worker is entitled to compensation under s 4(1) of the Act when it is established that they sustained personal injury as a result of an accident at work. Section 4(2) provides that a worker injured in an accident is entitled to wage loss benefits for their loss of earning capacity resulting from the accident. When a worker has sustained a loss of earning capacity or an impairment, or requires medical aid, compensation is payable under s 37 of the Act.

Section 39(2) 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 is over 61 years old when their compensable loss of earning capacity begins, s 39(3) provides that the WCB may pay the wage loss benefits for a period of “…not more than 48 months following the date of the accident.”

Worker’s Position

The worker was self-represented in the appeal and relied upon the written submission provided in advance of the appeal as well as an oral submission in the hearing.

The worker’s position is that the provision of the Act that terminates payment of wage loss benefits for a worker over the age of 61 years at the time of an accident should be interpreted to mean that benefits are payable for no more than a total of 48 months. The worker indicated that they received wage loss benefits for approximately just 8 months and as such should be entitled to an additional 40 months, approximately, of wage loss benefits.

The worker noted the WCB did not advise of their interpretation of this 48 month limit before the time expired. The worker submitted that if they had known about this earlier, they would have pursued scheduling the further surgery at an earlier date. The worker stated that they followed all recommendations made by the WCB to their detriment, and that they believe the WCB has not met its statutory responsibilities by failing to advise the worker of the relevant time limitations in advance so that they could obtain appropriate treatment before the benefit entitlement ended.

The worker also raised concerns about the past calculation of their wage loss benefits but understood that issue was not before the panel as they had not appealed the prior decisions of the WCB determining the amount of those benefits.

For these reasons, the worker submits that the panel should grant the appeal.

Employer’s Position

The employer as a finalled firm was not a party to the appeal.

Analysis

The question in this appeal is whether the worker is entitled to wage loss benefits after January 31, 2024 in relation to the accident of January 31, 2020. For the appeal to succeed the panel would have to determine that the worker is entitled to benefits beyond that date. As set out in the reasons that follow, the panel is unable to make such a finding and therefore the worker’s appeal is denied.

The provisions of the Act plainly set out that wage loss benefits are payable so long as the loss of earning capacity continues, or until the injured worker reaches 65 years of age. There is an exception to this general rule where a worker is injured after the age of 61 years, which exception would apply in the present case where the worker was, at the time of the compensable accident, 69 years old. The Act permits the WCB to pay wage loss benefits for up to 48 months to an injured worker who is over 61 years of age when they sustain a loss of earning capacity arising from a compensable accident.

As noted above, the panel is bound to apply the provisions of the Act in its decision-making. The panel noted that at the date of accident, the worker was 69 years old. Following the accident, the WCB provided wage loss benefits until the worker’s return to work in February 2020 and again following the worker’s compensable surgical repair, beginning in August 2020 and continuing until the worker returned to work on February 20, 2021. While the worker only received wage loss benefits for approximately 8 months in total, the panel does not agree with the worker’s submission that the Act should be read as providing for up to 48 months of benefits in total, rather than benefits for up to 48 months from the date of accident.

The panel acknowledges that the WCB did not clearly communicate this information to the worker at any time before the worker’s entitlement to further wage loss benefits expired, and further, initially provided incorrect information when asked. The evidence confirms that the worker continued to experience right shoulder difficulties and required further surgery, but this had not taken place by January 31, 2024 and meanwhile, the worker continued working with the accident employer. The panel noted that it was only after the worker was laid off in July 2024 that they learned that their entitlement to wage loss benefits was limited to the period of 48 months after the date of accident. At that time, the panel noted the WCB did not initially provide correct information to the worker about their entitlement to wage loss benefits after the layoff, indicating in a telephone conversation of July 31, 2024 that they would be entitled to wage loss from that point. The panel further noted that the WCB provided correct information to the worker some three weeks later, advising the worker that their wage loss entitlement ended 48 months after the date of accident. A review of the claim file materials further indicates that this information had not previously been provided to the worker.

Nonetheless, the provisions of the Act are applicable and clearly state that the worker’s entitlement to wage loss benefits ended 48 months after the date of accident, being January 31, 2024. Based on the evidence before us, we find that the worker is not entitled to wage loss benefits after January 31, 2024. The worker’s appeal is therefore denied.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 16th day of May, 2025