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 should be reduced by the post-accident deemed earning capacity effective March 21, 2019; 

2. Their restrictions are appropriate; and 

3. They are not entitled to full wage loss benefits from June 23, 2021 to December 20, 2021.

A hearing was held on June 16, 2025 to consider the worker's appeal.

Issue

1. Whether or not the worker's wage loss benefits should be reduced by the post-accident deemed earning capacity effective March 21, 2019; 

2. Whether or not the worker's restrictions are appropriate; and 

3. Whether or not the worker is entitled to full wage loss benefits from June 23, 2021 to December 20, 2021.

Decision

1. The worker's wage loss benefits should be reduced by the post-accident deemed earning capacity effective March 21, 2019; 

2. The worker's restrictions are appropriate; and 

3. The worker is not entitled to full wage loss benefits from June 23, 2021 to December 20, 2021.

Background

The worker has an accepted WCB claim for an injury to their right shoulder that occurred at work on June 28, 2012. After reports of ongoing complaints, approval was provided by the WCB and the worker underwent a right shoulder arthroscopic debridement of a partial thickness rotator cuff tear, distal clavicle excision and subacromial decompression on January 29, 2014. The worker was cleared to return to work on light duties however, after making ongoing complaints related to their right shoulder, the worker attended for a call-in examination with a WCB medical advisor on June 4, 2015, where permanent restrictions of no lifting and carrying more than 25 pounds occasionally and 15 pounds frequently and no repetitive overhead tasks with the right upper limb were put in place and the worker was referred for vocational rehabilitation services as the employer could not accommodate.

An initial Vocational Rehabilitation Plan under National Occupational Code (NOC) 6651 Security Guards and Related Occupations was developed however, as the worker was unable to pass the certification examination for that occupation, a further Vocational Rehabilitation Plan for NOC 6621 Service Station Attendants as a primary goal and NOC 6683 Other Elemental Service Occupations as a secondary goal was developed with an end date of April 28, 2017. The worker was advised on April 28, 2017 that they had been deemed capable of earning the minimum wage under NOC 6621 and their wage loss benefits were reduced. The worker later requested reconsideration of that decision and on September 29, 2017, the Review Office upheld the WCB’s decision the worker’s wage loss benefits were appropriately reduced by the earning capacity for NOC 6621 effective April 29, 2017.

The worker was seen by an orthopedic surgeon on July 17, 2018, reporting increasing right shoulder pain. The surgeon examined the worker and found decreased range of motion and positive rotator cuff tear testing. A diagnosis of recurrent right shoulder impingement syndrome and partial articular-sided supraspinatus tendon avulsion and a right shoulder arthroscopy with revision subacromial decompression and debridement of their partial articular supraspinatus tendon avulsion surgery was recommended. The surgery was approved by the WCB on August 2, 2018, and the worker underwent the arthroscopy on September 4, 2018 and full wage loss benefits were reinstated.

The worker’s representative requested reconsideration of the WCB’s decision to the Review Office and on December 11, 2018, the Review Office determined the worker’s vocational rehabilitation plan for NOC 6621, Service Station Attendants was appropriate. It was also determined that the worker was entitled to full wage loss benefits from July 17, 2018 to September 3, 2018.

Following the surgery, the worker attended physiotherapy treatment and was discharged from treatment on January 15, 2019. The treating physiotherapist noted the worker’s recovery had plateaued at lifting 30 pounds and carrying 25 pounds. At a follow-up appointment on January 23, 2019, with the treating orthopedic surgeon, the worker reported a significant improvement in their shoulder function following the surgery and the surgeon noted the worker had been discharged from physiotherapy with certain lifting restrictions and had advised the worker to avoid repetitive overhead work and heavy lifting with their right arm. At the request of the WCB, the worker attended for a call-in examination with a WCB medical advisor on February 6, 2019. After examining the worker, the advisor opined that the June 28, 2012 workplace accident caused a partial rotator cuff tear, which had been surgically repaired and after a course of physiotherapy, the worker experienced an improvement in their pain level and tolerance for some activities. The advisor further opined that there was a loss of abduction and flexion of the worker’s right shoulder and recommended permanent restrictions of no lifting and carrying more than 30 pounds with the right upper limb and no pushing or pulling with force greater than 30 pounds with the right upper limb. On March 13, 2019, the WCB advised the worker that based on the opinion of the WCB medical advisor, it had been determined they had recovered from the September 2018 surgery and as the permanent restrictions recommended by the WCB medical advisor were similar to the restrictions set out previously on August 1, 2017, the WCB was reducing the worker’s wage loss benefits based on the deemed earning capacity of NOC 6621 effective March 21, 2019.

On June 12, 2019, the worker was seen for a further follow-up appointment with the treating orthopedic surgeon. The worker again advised their pain had significantly improved since the surgery but that they were still experiencing difficulty raising their right arm above their head and lifting weight with their right arm. The surgeon noted the worker had been provided with restrictions of lifting and carrying no more than 30 pounds with the right arm and a pushing/pulling limit of 30 pounds. The surgeon noted their belief that the worker may not be able to lift that much weight in any repetitive way and suggested a lifting restriction of no more than 10 pounds with the right arm.

As a result of the differences in opinion on the lifting restriction, the WCB requested the worker attend for a Functional Capacity Evaluation (FCE), which took place on July 17, 2019. The physiotherapy consultant placed their report to the worker’s file on July 25, 2019, noting “Over the course of the FCE, [the worker] passed 0 of 5 validity checks. The results are therefore not considered valid…” On the same date, the WCB advised the worker based on the results of the FCE, there would be no change to their permanent restrictions.

The worker's representative submitted a March 18, 2020 letter from the worker's treating sports medicine physician to the WCB on June 1, 2020, and requested the WCB review the decisions made relating to the worker's ability to work within their deemed NOC 6621. The sports medicine physician indicated that the worker was unable to work in a physical job between April 28, 2017 to July 16, 2018 or after March 21, 2019 and would not have been able to work within NOC 6621 during that time or from February 4, 2015 to the present. The physician noted the worker would only be able to perform sedentary or cashier duties, not involving lifting more than 5 pounds below the height of their shoulder and could not perform the other normal duties within NOC 6621.

On June 3, 2020, the WCB advised the worker’s representative that a request for reconsideration of the WCB’s decisions related to the worker’s deemed earning capacity and permanent restrictions would need to be made to the Review Office. On June 10, 2020, the representative requested the WCB consider the March 18, 2020 letter from the worker’s treating sports medicine physician as new medical information and on June 15, 2020, the WCB advised the worker’s representative there would be no change to the earlier decision the worker’s permanent restrictions were appropriate and forwarded the request for reconsideration of the worker’s average earnings to the Review Office. On July 9, 2020, the Review Office advised the representative that the medical information submitted did not support the worker was only able to work sedentary duties or was unable to perform the job duties under NOC 6621 or NOC 6683 and as such, there was no change to the earlier decisions. On July 30, 2020, the Review Office upheld the WCB’s decision the worker’s wage loss benefits should be reduced by the deemed earning capacity effective March 21, 2019 and the worker’s restrictions were appropriate.

The worker’s representative provided the WCB with a Functional Abilities Evaluation Report dated March 23, 2021 based on an assessment conducted by a third-party physiotherapist on March 29, 2021. The representative argued that the said report supported the worker’s inability to work within the NOC categories chosen by the WCB and noted restrictions for the worker. The report and the worker’s file was reviewed by a WCB medical advisor on April 19, 2021 who opined the worker’s permanent restrictions should be updated to avoid use of the right arm at or above shoulder level; avoid heavy lifting or carry with the right hand/arm greater than 15 pounds; and avoid push/pull with the right arm or hand greater than 30 pounds. The advisor noted the physiotherapist had recommended a graduated return to work on limited hours however, the advisor indicated that recommendation was based on subjective reporting of symptoms and perceived limitations by the worker. On May 6, 2021, the WCB provided the worker with a decision letter setting out the above noted permanent restrictions and advising it had been determined that the vocational rehabilitation plan set out by the WCB remained appropriate.

In June 2021, the worker contacted the WCB to report ongoing symptoms in their right shoulder and a June 2, 2021 report from the worker’s treating orthopedic surgeon recommended a follow-up MRI to determine if the present low-grade partial-thickness supraspinatus tear had progressed, which could explain the worker’s ongoing symptoms. The MRI was conducted on June 23, 2021, and found a “Full-thickness partial width supraspinatus tendon tear.” The worker’s file was reviewed by a WCB orthopedic surgery consultant on July 29, 2021, who opined the “…reported tear would most likely represent the typical natural history of a tendinotic supraspinatus tendon progressing onto to partial-thickness bursal and articular-sided tearing until eventual progression into a full-thickness rotator cuff tear.” A further report from the worker’s treating orthopedic surgeon on August 4, 2021 recommended a right shoulder arthroscopy with rotator cuff repair and subacromial decompression, which surgery was approved by the WCB on September 21, 2021. A September 30, 2021 report from the treating surgeon noted that, while the worker was awaiting surgery, restrictions of not lifting more than 10 pounds with their right arm, not pushing more than 10 to 15 pounds, and avoiding overhead activity with the right arm were recommended. A further review by a WCB medical advisor on October 27, 2021 found that the surgeon’s recommended restrictions prior to surgery were appropriate.

On December 15, 2021, the WCB provided the worker with a decision indicating their request for reinstatement of their full wage loss benefits from June 23, 2021 was not accepted. The WCB noted the WCB medical advisor, and their own treating orthopedic surgeon had provided work restrictions prior to surgery, and the worker would have been capable of obtaining employment within those restrictions. As such, they were not entitled to full wage loss benefits. The worker was advised that benefits would be reinstated from the date of surgery, scheduled for December 21, 2021. A further letter was sent to the worker’s representative on December 21, 2021, advising the medical information submitted on December 15, 2021 did not support the worker was totally disabled prior to their surgery and confirmed the worker was not entitled to full wage loss benefits from June 23, 2021 to December 20, 2021.

The worker underwent surgery on December 21, 2021, following which they attended for post-surgery physiotherapy. A Discharge report dated August 18, 2022, noted the worker’s complaints of pain with reaching and repetitive use of their right arm, and inability to lift overhead or more than 10 pounds with their right arm. A positive empty can and O’Briens test was noted. The treating physiotherapist indicated the worker had completed rehabilitation treatment and had reached their functional capacity, with the therapist providing they did not anticipate further functional improvement. The treating physiotherapist provided the worker was capable of alternate and modified work and listed restrictions of:

Lifting: 

Floor to waist with 2 arms, up to 20lbs, occasional (unable to do repetitively, less than 30% of the day)

Waist to shoulder with 2 arms, up to 20lbs, occasional 

Carry/push/pull with 2 arms, up to 20lbs, occasional 

Floor to waist with R arm only, up to 10lbs occasional 

Waist to shoulder with R arm only, up to 10lbs occasional 

Overhead movements, up to 2lbs, rarely.

The restrictions and the worker’s file were again reviewed by a WCB medical advisor on September 16, 2022 who provided that long term restrictions of “…avoidance of repetitive use of the right arm above shoulder level, with or without resistance, lifting and carry limitations of 20 lbs. on an occasional basis only, and occasional above shoulder level use of the extremity to a maximum of 2 lbs.” were appropriate. On October 11, 2022, the WCB provided the worker’s representative with a decision letter advising that the worker’s restrictions did not preclude them from obtaining employment prior to their surgery and as such, they were not entitled to full wage loss benefits prior to December 21, 2021. As well, the WCB advised the worker’s current restrictions were within NOC 6621, Service Station Attendant and the worker remained employable within that NOC. As well, it was noted the worker was also employable within NOC 6742, Other elemental services and accordingly, the worker’s full wage loss benefits would end on October 17, 2022, and partial wage loss benefits based on NOC 6621 would be reinstated.

On November 23, 2022, the worker’s representative requested reconsideration of the WCB’s decision to the Review Office. The representative provided the information on the worker’s file from the worker’s treating healthcare providers supported the worker was not capable of working within NOC 6621 and even while the worker was not working within that NOC, the worker’s right shoulder deteriorated to the point they required further surgery in December 2021. The representative submitted this meant the worker was totally disabled from working from the time the MRI study indicated the full-thickness tear on June 23, 2021 up to the date of surgery on December 21, 2021.

The Review Office determined on December 21, 2022 that the worker was not entitled to full wage loss benefits from June 23, 2021 to December 20, 2021. The Review Office accepted and agreed with the opinion of the WCB medical advisor that the worker was not totally disabled from working and the restrictions provided prior to the surgery by both the worker’s treating orthopedic surgeon and the WCB were appropriate. As such, the worker was not entitled to full wage loss benefits prior to the surgery.

The worker filed an appeal with the Appeal Commission on April 11, 2025, and a hearing 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 that Act and the policies established by the WCB's Board of Directors.

Section 4(1) of the Act entitles a worker to compensation when it is established that they sustained personal injury because 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, 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 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 Section 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.

The WCB has established a policy to assist in determining a worker’s post-accident earning capacity, which is a key component of calculating wage loss benefits. Policy 44.80.30.10, Establishing Post Accident Earning Capacity, describes the principles used to establish a post-accident earning capacity. In conjunction with this is a second policy, Policy 44.80.30.20, Post accident earnings – deemed earning capacity (the “Deeming Policy”), which sets out circumstances when a worker is capable of earning more than they are actually earning and in those cases, the WCB will deem the amount that the worker is capable of earning and include it in the calculation of post-accident earning capacity as if it had, in fact, been earned.

Worker’s Position

The worker appeared at the hearing and was self-represented. An oral presentation was made by the worker, and testimony was provided by way of answering questions posed by members of the appeal panel.

The worker described the severity of their symptoms and stated that they had constant pain and tried many medications and injections to relieve the pain. The worker’s evidence is that they continued to seek treatment from their physicians as their shoulder pain was not improving.

The worker’s position is that their wage loss benefits should not have been reduced by the post-accident deemed earing capacity as they were not able to perform jobs within NOC 6621. The worker states that the nature of the duties as a service station attendant did not align with their restrictions. The worker argues that duties such as lifting batteries, changing oil, changing wiper blades, changing tires and cleaning were not job duties they were able to perform.

The worker further states that their restrictions were not appropriate. The worker’s position is that their restrictions were not changed over time and should have been reviewed and revised due to the tear that was discovered. The worker argues that the restrictions should have indicated the worker was precluded from lifting any amount.

The worker is of the view that they are entitled to full wage loss benefits from June 23, 2021 to December 20, 2021. The worker notes that the MRI found a tear in their tendon and this should have resulted in continued wage loss benefits. The worker’s evidence is that they were taking pain medication 3 to 4 times a day to deal with the pain and that they could not work due to the severity of the pain. The worker relies on the evidence of their treating family physician from September 3, 2019 and December 8, 2021, which states that they are unable to work.

Employer’s Position

The employer did not participate in the hearing.

Analysis

There are 3 issues before the panel. They are set out separately below.

Issue 1: Whether or not the worker's wage loss benefits should be reduced by the post-accident deemed earning capacity effective March 21, 2019. For the worker’s appeal to succeed, the panel would need to find that the deemed earning capacity should not have been implemented. Specifically, the panel would need to find a deficiency in the worker’s vocational rehabilitation plan that demonstrated the worker was unable to earn the deemed amount as of that date. The panel was not able to make that finding.

The panel is bound by the WCB policies, and has considered the Deeming Policy, which sets out a number of criteria that must be met when establishing a deem. The WCB must show that a worker has the physical capacity, education, skills, aptitudes, and where possible, the interests and personal qualities needed to obtain and keep employment in an occupation or group of occupations in the labour market. There must also a demonstrated job market for the occupation or group of occupations on which the earning capacity is to be based. Having reviewed the Earning Capacity Assessments on the file and the VR plan for NOC 6621, the panel finds that the WCB considered the appropriate criteria set out in the Deeming Policy.

The panel has reviewed and considered the duties of a Service Station Attendant and, although the panel accepts that the worker could not lift heavy items or reach overhead, the reality is that with certain positions within this NOC the worker would not be expected to do so. The description of NOC 6621, set out several times on the file, indicates that automotive service station attendants perform some or all of the listed duties. The panel is of the view that there are positions available where the main job duties are refueling vehicles, light cleaning and refilling washer fluid containers. The panel acknowledges that the description of the position may reference duties such as checking fluid levels or replacing parts such as tires or windshield wiper blades, but it is reasonable to conclude that those duties are not part of all positions within this NOC. The panel concludes that workers within this NOC may experience widely varying levels of physical demands and duties at work. Therefore, the panel finds that the worker’s injuries did not preclude them from refueling gasoline as a service station attendant.

The panel notes that the worker had full abilities with their left arm and that the worker was eventually able to find janitorial work that was within their physical abilities.

The panel finds, on a balance of probabilities, that the reduction of the worker’s wage loss benefits by the post-accident deemed earning capacity effective March 21, 2019 was appropriate.

The worker’s appeal of this issue is denied.

Issue 2: Whether or not the worker's restrictions are appropriate. For the worker’s appeal to succeed, the panel would need to find that the restrictions were not appropriate. The panel was unable to make this finding.

The evidence before the panel is that the worker was not completely disabled as a result of the workplace accident and was able to perform one-handed duties with their non-dominant hand. Restrictions were put in place for the worker following a call-in examination in 2015, and these restrictions were re-assessed on several occasions over the course of the file to date, including following their shoulder surgeries. The panel has reviewed these restrictions and the revisions made throughout the file. On February 6, 2019, the WCB Orthopedic Consultant examined the worker and set out the following restrictions:

• no repetitive overhead tasks with the right upper limb 

• no lifting and carrying more than 30 pounds with the right upper limb 

• no pushing or pulling with force greater than 30 pounds with the right upper limb.

A Functional Capacity Evaluation was arranged as the treating orthopedic surgeon, who it is noted did not perform any testing or measurements, queried the worker’s lifting ability. The panel notes that the results of a Functional Capacity Evaluation were considered invalid and therefore the panel does not place weight on same.

The panel notes that evidence from the treating Physical Medicine and Rehabilitation physician in December 2019 indicates that it was “safe and appropriate to lift more than 10 pounds.”

A second Functional Capacity Evaluation was completed on March 23, 2021, with the following resulting restrictions:

• avoid use of the right arm at or above shoulder level 

• avoid heavy lifting or carrying with the right hand/arm greater than 15 pounds 

• avoid push/pull with the right arm or hand greater than 30 pounds.

The panel finds the February 6, 2019 restrictions and the March 23, 2021 restrictions to have a significant degree of similarity. A WCB medical consultant also reviewed these restrictions on April 16, 2021, and considered them to be appropriate.

In order for the panel to determine that the restrictions were inappropriate, the panel would require some medical evidence to suggest that the restrictions were incorrectly assessed. The evidence before the panel does not suggest that the restrictions were inappropriate. Therefore, based on the foregoing, the panel finds the permanent restrictions put in place by the WCB Orthopedic Consultants to be appropriate.

The worker’s appeal of this issue is denied.

Issue 3: Whether or not the worker is entitled to full wage loss benefits from June 23, 2021 to December 20, 2021. For the worker’s appeal to succeed, the panel would need to find that the worker continued to sustain a loss of earning capacity in relation to the injury sustained in the compensable workplace accident of June 28, 2012. As detailed in the reasons that follow, the panel was not able to make such a finding.

The panel has considered the medical evidence before it and has concluded that the worker was not fully disabled and was able to work during the time period in question.

A report from the treating family physician from September 2019 states that the worker is unable to work however no details or clinical findings are provided to support the opinion other than referencing the MRI and the orthopedic surgeon’s consultation notes, which does not provide an opinion respecting the worker’s ability to work. Additionally, the treating family physician’s opinion from September contrasts with the opinion from several weeks prior (in May 3, 2021) wherein the treating sports medicine physician stated the worker could work alternate or modified duties, within their restrictions.

The panel relies on the opinion of the Orthopedic Surgeon (from their letter dated September 30, 2021) which indicates that the worker is able to work within their restrictions, and therefore finds, on a balance of probabilities, that the worker did not sustain a loss of earning capacity in relation to the injury sustained in the compensable workplace accident of June 28, 2012.

The worker’s appeal of 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 15th day of August, 2025