The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

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

1. Their wage loss benefits were suspended effective January 9, 2003; 

2. Their post-accident deemed earning capacity remains appropriate as of August 1, 2005; 

3. It is appropriate to apportion 50% of the worker's Canada Pension Plan Disability Benefit to the accident effective August 1, 2005; and 

4. They are not entitled to additional wage loss benefits after July 3, 2005.

A hearing was held on May 28, 2025 to consider the worker's appeal.

Issue

1. Whether or not the worker's wage loss benefits should have been suspended effective January 9, 2003; 

2. Whether or not the worker's post-accident deemed earning capacity remains appropriate as of August 1, 2005; 

3. Whether or not it is appropriate to apportion 50% of the worker's Canada Pension Plan Disability Benefit to the accident effective August 1, 2005; and 

4. Whether or not the worker is entitled to additional wage loss benefits after July 31, 2005.

Decision

1. The worker's wage loss benefits should have been suspended effective January 9, 2003; 

2. The worker's post-accident deemed earning capacity remains appropriate as of August 1, 2005; 

3. It is appropriate to apportion 50% of the worker's Canada Pension Plan Disability Benefit to the accident effective August 1, 2005; and 

4. The worker is not entitled to additional wage loss benefits after July 31, 2005.

Background

This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 101/04, dated August 6, 2004. The background will therefore not be repeated in its entirety.

In summary, the worker has an accepted WCB claim for an injury to their low back and neck that occurred at work on January 22, 1996. The compensable diagnosis was determined to be an L5/S1 disc herniation and temporary work restrictions were put in place. Those restrictions were later made permanent. As it was found the worker could not return to their pre-accident employment due to their restrictions, the worker was provided with vocational rehabilitation services by the WCB. By September 2002, the worker had stopped attending the educational upgrading and their wage loss benefits were suspended on January 9, 2003 and on January 22, 2003, a deemed earning capacity was implemented in accordance with the vocational rehabilitation plan. The worker later requested that the Review Office reconsider the WCB’s decision and on October 3, 2003, the Review Office determined it was appropriate to implement the deemed earning capacity as the worker was not willing to participate in the vocational rehabilitation plan. Appeal Commission Decision No. 101/04 dealt with several issues appealed by the worker and determined, in part, that the worker’s deemed earning capacity was appropriate.

The worker continued to receive partial wage loss benefits based on the deemed earning capacity. On August 1, 2005, the worker started to receive Canada Pension Plan (CPP) disability benefits. It was noted the worker reported to the WCB they were receiving those benefits for their neck and back. Annual updates and reviews took place between the worker and the WCB, with the worker reporting they were unable to work due to their compensable injury. The worker reached the age of 65 and on September 25, 2023, their entitlement to partial wage loss benefits ended.

The worker’s representative provided a submission to the Review Office on April 26, 2024 requesting reconsideration that the worker was not entitled to additional wage loss benefits after July 31, 2005. The representative also provided copies of chart notes from the worker’s treating healthcare providers for consideration. On May 2, 2024, the Review Office returned the worker’s file to the WCB’s Compensation Services for further investigation.

The WCB requested and received information on the worker’s CPP disability benefits and on July 22, 2024, provided the worker and their representative with a formal decision letter on 2 issues. The first issue dealt with whether or not the worker was entitled to additional benefits after July 31, 2005. The WCB determined the evidence supported the worker was capable of full time employment as of August 1, 2005 and as such, there was no entitlement to additional wage loss benefits. The second issue related to the worker’s CPP disability benefits. It was noted the worker’s entitlement to those benefits was as a result of compensable and non-compensable issues and accordingly, the worker’s entitlement to partial wage loss benefits as of August 1, 2005 had been incorrectly calculated. A discussion with the worker’s representative on July 31, 2024 noted the worker’s determination that 75% of the worker’s CPP Disability Benefit was apportioned to the workplace accident.

On September 18, 2024, the worker’s representative again requested reconsideration of the WCB’s decision to the Review Office. The Review Office returned the worker’s file to the WCB’s Compensation Services for clarification on the CPP Disability Benefit apportionment and further investigation. On October 8, 2024, a further decision letter was provided to the worker and their representative confirming the decision the worker was not entitled to additional wage loss benefits after July 31, 2005. As well, the WCB clarified it had determined the worker’s compensable condition was determined to be the major reason for the worker’s entitlement to CPP Disability Benefit, with their non-compensable conditions being the minor reason and as such, had apportioned the worker’s benefits at 75%.

The worker’s representative requested reconsideration of the WCB’s decision to the Review Office on November 5, 2024. The representative noted their belief the WCB had not considered that the worker was in receipt of CPP disability benefits effective August 1, 2005, which appeared to indicate the worker’s compensable and non-compensable difficulties rendered them unable to work and entitled to additional wage loss benefits. With respect to the apportionment of the worker’s CPP benefits, the representative noted the WCB determined the worker’s compensable lower back injury was the major reason for the worker’s entitlement to the benefits but did not accept that condition as the reason why the worker was unable to work. The representative argued the apportionment should be 25% or 50% at most.

The Review Office determined on November 28, 2024, the worker’s deemed earning capacity effective August 1, 2005 was appropriate and the apportionment of the worker’s CPP disability benefits at 50% was appropriate effective August 1, 2005. The Review Office accepted and agreed with the prior Appeal Commission decision that the worker was capable of working within their deemed earning capacity and noted minimal medical evidence had been provided in support of their position they were unable to work. Accordingly, the Review Office found the worker’s deemed earning capacity effective August 1, 2005 remained appropriate. The Review Office accepted the information on file from the worker indicating they were in receipt of CPP disability benefits for their low back and neck relatively equally and in the absence of medical evidence to the contrary, further found a 50% cost apportionment effective August 1, 2005 for the worker’s CPP disability benefits was appropriate.

The worker’s representative filed an appeal regarding these issues, along with the October 10, 2003 Review Office decision on the worker’s wage loss benefit suspension, with the Appeal Commission on January 7, 2025.

On January 20, 2025, the worker’s representative contacted the Review Office and noted their belief the November 28, 2024 decision did not address the issue of whether or not the worker was entitled to additional wage loss benefits after July 31, 2005. The Review Office agreed to reconsider the issue and on March 13, 2025, determined the worker was not entitled to additional wage loss benefits after July 31, 2005. The Review Office considered the medical information on file, along with the worker’s application for CPP disability benefits and determined the permanent restrictions in place for the worker were appropriate and the worker was capable of working full time in their deemed earning capacity after July 31, 2005. The Review Office further found any change in the worker’s functional status due to the worker’s non-compensable health issues would not mean the worker was entitled to an increase in their loss of earning capacity with the WCB.

The worker’s representative filed an appeal of this issue to the Appeal Commission on March 20, 2025. A hearing on all issues was arranged.

Reasons

Applicable Legislation and Policy

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.

A worker is entitled to compensation under Section 4(1) of the Act when it is established that they sustained personal injury because of an accident at work. Pursuant to Section 4(2), a worker injured in an accident is entitled to wage loss benefits for their loss of earning capacity resulting from the accident, but wage loss benefits are not payable where the injury does not result in a loss of earning capacity during any period after the day of the accident. When there is a loss of earning capacity, compensation is payable under Section 37 of the Act. Section 39(2) of the Act sets out that wage loss benefits are payable until the loss of earning capacity ends, or the worker attains the age of 65 years.

The Act also provides, at Section 27(1), that the WCB may provide any medical aid to the worker that the board considers necessary or advisable to cure or give relief to the worker.

Furthermore, the Act requires that workers take all reasonable steps to mitigate the consequences of a workplace injury (Section 22). This duty to mitigate is further addressed in the WCB’s policy 44.10.30.60, Co-operation and Mitigation in Recovery (the “Mitigation Policy”).

The Mitigation Policy sets out that a worker can mitigate the negative effects of a workplace injury by reasonably participating and cooperating in medical treatment and services, and by participating fully in return to work and other programming the WCB considers beneficial to the worker’s recovery and return to work.

The Mitigation Policy further sets out the worker’s responsibilities regarding medical aid and return to work programs, as well as the WCB’s responsibilities in these regards.

The WCB established Policy 44.80.30.20, Post Accident Earnings - Deemed Earning Capacity (the “Deeming Policy”) which describes when the WCB will determine a worker is capable of earning more than they are actually earning. In those circumstances, the WCB will deem an amount that the worker could earn and will include it in the calculation of post-accident earning capacity as if it were earned. The Deeming Policy outlines, at paragraph 9, that a deemed earning capacity will be reviewed periodically in accordance with WCB policy 44.80.80.20, Loss of Earning Capacity Reviews (The “Reviews Policy”). The Reviews Policy provides that earning capacity may change several times during the period the worker is receiving benefits and describes how, and under what circumstances, the loss of earning capacity will be reviewed and adjusted.

The Reviews Policy states that loss of earning capacity reviews will be conducted for workers injured on or after January 1, 1992 as follows:

i) During initial adjudication, and, 

ii) During the average earnings review conducted under WCB policy 44.80.10.10, Average Earnings, and, 

iii) At any time there is a significant change in circumstances that may affect the worker's actual or potential earnings; and 

iv) At the indexing date under subsection 40(2) of the Act. When the indexing date follows very shortly after a review due to a change in circumstances, the review can be completed at the time of the change in circumstances, but the date for the next annual review will still be the indexing date.

WCB Policy 44.80.30.10, Wage Loss - Establishing Post Accident Earning Capacity (the "Post Accident Earnings Policy") is relevant in cases where a worker receives CPP benefits.

The Post Accident Earnings Policy describes the methods that will be used to calculate workers' post-accident earning capacity. The Post Accident Earnings Policy clearly states that the Act requires the WCB to take specific types of collateral benefits (or wage replacement benefits) into account when establishing a worker’s post-accident earning capacity if the amount of the collateral benefits, together with the amount of wage loss benefits the worker is entitled to receive under the Act, exceeds certain thresholds.

Subsection 41(1) of the Act defines a “collateral benefit” as:

(a) any periodic benefit the worker is entitled to receive under the Canada Pension Plan, the Quebec Pension Plan, the Unemployment Insurance Act (Canada), and a policy of disability insurance; 

(b) any payment to the worker by the worker's employer, including a gratuity or allowance; and 

(c) any other statutory benefit prescribed by regulation.

Worker’s Position

The worker was present at the hearing and represented by a worker advisor. The worker’s representative provided a written submission in advance of the hearing and made oral submissions at the hearing. The worker provided testimony by way of responding to questions posed by their representative and members of the appeal panel.

The worker’s positions on the issues before the panel are set out below.

With respect to the issue of the suspension of the worker’s wage loss benefits, the worker’s position is that it was reasonable for the worker to stop attending the academic program as the Review Office determined that the Vocational Rehabilitation (“VR”) plan (and therefore the program) was not appropriate.

The worker’s evidence in this regard is that they were awaiting an MRI of their back and had lower back pain which was aggravated by prolonged sitting.

The worker states that their participation in an academic program was not contributing to or beneficial for their recovery, as the worker had permanent restrictions that were not being considered. The worker submits that the duty to mitigate and to participate in the programming was not required in this case as the programming was not beneficial to the worker’s return to work.

The worker’s position on the issue of whether the worker's post-accident deemed earning capacity remains appropriate as of August 1, 2005 is that the worker’s deemed earning capacity should have been reviewed. The worker submits that the WCB collected minimal information from them over many years, despite the fact that the Loss of Earning Capacity Policy acknowledges that workers' circumstances may change several times. The worker states they were unable to return to sustained employment and had chronic back pain. The worker further states that the WCB ought to have conducted annual reviews to determine if there was a change to their earning capacity. The worker states that the WCB erred in failing to accept that the worker experienced a further deterioration in earning capacity on the basis of limited information that they should have and were in a position to collect.

Regarding the issue of apportionment of the worker’s CPP Disability Benefit, the position of the worker is that it is most appropriate to set the apportionment rating at 25% as the CPP Disability Medical Report (dated July 4, 2006) identifies 4 applicable medical conditions (3 of which are non-compensable).

Alternatively, the worker submits that the rating should be 33.33% and states that the Act and Policies provide no guidance on assigning such a rating and it is up to the panel’s discretion to set the percentage.

Respecting the issue of the worker’s entitlement to additional wage loss benefits after July 31, 2005, the worker’s position is that they are entitled to additional wage loss benefits. The worker submits that the CPP Disability medical report should be relied on as, contrary to the Review Office statement otherwise, the physician who completed the report did document findings to support the view that the worker had been unable to work and had an understanding of the worker’s injury history. The worker argues that the WCB medical consultant’s opinion of February 5, 2008 should not hold significant weight as it is a one sentence report from a physician that did not have the benefit of examining the worker.

Employer’s Position

The employer did not participate in the hearing.

Analysis

There are 4 issues before the appeal panel in this hearing. The issues are discussed separately below.

Issue 1: Whether or not the worker's wage loss benefits should have been suspended effective January 9, 2003. For the worker's appeal to succeed, the panel must find that the worker experienced a loss of earning capacity as a result of the compensable injury and was entitled to wage loss benefits. As detailed in the reasons that follow, the panel was unable to make such a finding and therefore, the worker’s appeal on this issue is denied.

The panel has considered the determination by the Review Office that the worker’s VR plan was not appropriate, however, the panel notes that the evidence on file is that the worker did not like the program and did not want to attend. The worker’s explanations for not attending were not related to back symptoms they were experiencing. The panel disagrees with the worker’s opinion that the reason for nonattendance should not matter, since the VR plan was found to be unsuitable. The panel notes that the suitability of the VR plan was not known at the time and the worker was required under the Act and the Mitigation Policy to take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from a workplace injury, which included participating in the academic program.

The Mitigation Policy provides that a worker’s responsibilities include demonstrating an ongoing reasonable effort towards the successful completion of a rehabilitation program. The WCB communicated the mitigation responsibilities clearly to the worker on numerous occasions and the worker chose not to comply. The worker did not demonstrate an ongoing reasonable effort to complete the academic program and did not provide a reasonable explanation for non-compliance. The panel is of the view that the WCB complied with the Mitigation Policy in suspending the worker’s wage loss benefits.

Based on the foregoing, the panel finds that the worker’s wage loss benefits were appropriately suspended effective January 9, 2003, due to their noncompliance with the re-training approved by the WCB. In rendering their decision, the panel notes that they considered the reason the VR plan was not suitable was as a result of the worker’s aptitudes, and not a result of the worker’s symptoms or medical condition.

Issue 2: Whether or not the worker's post-accident deemed earning capacity remains appropriate as of August 1, 2005. For the worker’s appeal to succeed, the panel would have to determine that the WCB failed to comply with the requirements of the Act and applicable policies in deeming the worker capable of earning an income at the level established for the occupational group selected. As detailed in the reasons that follow, the panel was unable to make such a finding and therefore, the worker’s appeal is denied.

The panel has reviewed the available medical evidence and acknowledges that there was a lack of medical evidence obtained by the WCB. The panel must, however, rely on the evidence before it, despite how limited it may be. The panel is of the view that the medical evidence is not indicative of a worsening of the worker’s medical condition. The panel relies on the evidence on the file from the worker wherein they indicate that there has been “no change” in their medical condition. The Reviews Policy provides that a worker is responsible for informing the WCB of any significant changes in circumstances which may affect their actual or potential earnings.

The panel finds, on a balance of probabilities, that there is no indication of a deterioration of the worker’s condition or that the worker’s restrictions became inappropriate. Therefore, the panel finds that the worker's post-accident deemed earning capacity remained appropriate as of August 1, 2005.

Issue 3: Whether or not it is appropriate to apportion 50% of the worker's Canada Pension Plan Disability Benefit to the accident effective August 1, 2005. For the worker’s appeal to succeed, the panel must find that the CPP disability benefits are not "injury related benefits". If the CPP disability benefits are injury related, they must be included by the WCB when determining the worker's post-accident earnings.

The panel does not agree with the worker’s argument that the percentage should be apportioned equally between the worker’s 4 medical conditions. The 4 listed medical conditions under the heading “Diagnosis (es) – Diagnostic(s)” on the July 4, 2006 Medical Report are as follows: (1) back pain/disc herniation; (2) chronic neck pain; (3) hearing loss; and (4) irritable bowel syndrome. These conditions are not all compensable injuries. The Post Accident Earnings Policy references that as a result of a workplace accident, workers may be entitled to income and benefits designed to replace their lost wages from sources other than the WCB. Therefore, the panel considers only those benefits received as a result of the workplace accident ought to be considered. The worker’s hearing loss and irritable bowel syndrome are not related to the workplace injury.

The treating physician identified the worker’s low back pain and neck pain as the primary conditions. The panel finds that the two main conditions are the worker’s back pain (50%) and the neck pain (50%). However, the panel concludes that the worker’s neck pain pre-existed the workplace injury and therefore is a non-compensable condition. The panel does not accept that non-compensable conditions should be included in the assessment. Accordingly, the panel finds the condition that is attributable to the workplace accident is the back pain, recognizing it as a collateral benefit resulting from the workplace accident. The panel finds that a 50% allocation of the worker's Canada Pension Plan Disability Benefit to the accident effective August 1, 2005 to be appropriate.

Issue 4: Whether or not the worker is entitled to additional wage loss benefits after July 31, 2005. For the worker’s appeal to succeed, the panel would have to determine that the worker sustained a loss of earning capacity after July 31, 2005 as a result of the injuries sustained in the workplace accident of January 22, 1996. As detailed in the reasons that follow, based on the evidence before the panel, we were unable to make such a finding and therefore, the worker’s appeal on this issue is denied.

The panel notes that a determination was made in Appeal Commission Decision No. 101/04 that the worker’s restrictions did not preclude the worker from working full time at a minimum wage job.

The panel considered the medical evidence before it, and agree with the worker’s position that there is limited medical evidence and the information available does not show a worsening of the worker’s medical condition or a need to change the existing restrictions. The panel finds that the worker’s restrictions did not preclude the worker from working full time at a minimum wage job and therefore there is no entitlement to additional benefits.

The panel notes that the medical report dated July 4, 2006 references “not much improvement” and an inability to return to work, however the physician does not provide specific or detailed physical findings or functional limitations to show a worsening or deterioration of the worker’s back condition. The panel therefore accepts and relies upon the prior restrictions that were in place as of the worker’s call in examination in 2003. The panel also relies on the worker’s evidence of there being no change in their condition over the years.

Based on the evidence and on the standard of a balance of probabilities, the panel concludes that the evidence does not support a worsening of the worker’s back condition. The panel finds that the worker is not entitled to additional benefits after after July 31, 2005. The worker’s appeal on this issue 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 25th day of July, 2025