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 full wage loss benefits for the period July 8, 2023 to January 1, 2024.

The employer is appealing the decision made by the WCB that the worker was entitled to partial wage loss benefits for the period July 8, 2023 to January 1, 2024.

A hearing was held on September 25, 2025 to consider the appeals.

Issue

Worker Appeal: Whether or not the worker is entitled to full wage loss benefits for the period July 8, 2023 to January 1, 2024.

Employer Appeal: Whether or not the worker is entitled to partial wage loss benefits for the period July 8, 2023 to January 1, 2024.

Decision

Worker Appeal: The worker is not entitled to full wage loss benefits for the period July 8, 2023 to January 1, 2024.

Employer Appeal: Withdrawn at the hearing.

Background

The worker has an accepted WCB claim for an injury to their right shoulder that occurred at work on November 25, 2022 when they were carrying an empty pallet with a coworker, who dropped their end, pulling down the worker’s right shoulder. The worker noted they were right-hand dominant and had previously had surgery on that shoulder. The worker returned to work on modified duties on November 26, 2022, however, after being seen by their treating physician on November 28, 2022, was placed off work for 4 weeks due to a suspected complete tear of their right rotator cuff.

In speaking with the WCB on December 12, 2022, the worker confirmed the mechanism of injury and noted their treating physician had referred them to an orthopedic surgeon who had performed a rotator cuff and bicep repair on their right shoulder in 2013. The WCB advised the worker that their claim was accepted, and the payment of various benefits started effective November 28, 2022. On December 29, 2022, the worker returned to work on modified duties, with restrictions including no movement of the right shoulder, no pushing, pulling and lifting. The worker’s treating physiotherapist recommended the worker have a day off work following treatment due to an increase in symptoms, which began on February 3, 2023, however, the worker returned to full hours on February 15, 2023 due to financial reasons.

On June 23, 2023, the WCB contacted the worker for an update. The worker advised they continued to experience difficulties with their shoulder, including issues sleeping. The worker further advised they were working their regular hours on modified duties but had resigned from their position, with their last day being July 7, 2023. The worker noted they resigned as they did not feel they were being treated well by the employer.

The worker's file was reviewed by a WCB medical advisor on August 9, 2023, who opined the worker's diagnosis was non-specific right shoulder pain and the worker's current difficulties were related to their pre-existing shoulder condition and not the November 25, 2022 workplace accident. On August 11, 2023, the WCB provided the worker with a decision letter advising they were not entitled to further benefits after August 18, 2023, as it had been determined they had recovered from the workplace accident. The worker underwent a right shoulder MRI study on August 21, 2023, which indicated "Partial high-grade bursal sided tear of the supraspinatus tendon, new from the previous MRI." On September 18, 2023, the worker's file was reviewed by a WCB radiology consultant and then a further review was conducted by a WCB medical advisor on the same date. The advisor noted the consultant identified a partial thickness articular sided tear of the supraspinatus tendon in the worker's right shoulder that was not identified in the initial December 28, 2022 right shoulder MRI. The advisor went on to provide that the full thickness supraspinatus tear identified in the August 21, 2023 MRI study was the progression of the partial thickness tear and opined that the November 25, 2022 workplace accident could have caused the partial thickness tear to progress to the full thickness tear, in an environment of pre-existing supraspinatus tendinosis. The WCB medical advisor further provided the worker may require surgical repair. The WCB spoke with the worker on September 19, 2023 to advise, based on the WCB medical advisor's opinion, that they were entitled to further medical aid benefits in relation to the workplace accident however, wage loss benefits were not supported as the worker resigned from their position. A formal decision letter was sent to the worker on September 20, 2023, advising of same.

The worker was seen by an orthopedic surgeon on May 8, 2024. On examining the worker, the surgeon found reduced range of motion in the worker's right shoulder and positive painful arc and impingement signs. Right shoulder rotator cuff repair/subacromial decompression surgery was recommended. Post-surgery, the treating surgeon recommended that the worker not work for 6 weeks, after which they could work 6 weeks of sedentary/desk work only, followed by 3 months of light duties, with no lifting greater than 10 pounds, no repetitive or overhead work and a return to full duties within 6 months. The WCB authorized the surgery on June 17, 2024, and the surgery took place on July 18, 2024.

The worker started post-surgery physiotherapy on August 19, 2024. On August 21, 2024, the worker spoke with the WCB to provide a status update. The worker again advised the WCB they had resigned from their position with the employer on July 7, 2023, as the worker felt they were not treated well by the employer when they returned to work on modified duties and that they were required to work outside their restrictions. They again requested that the WCB reconsider their entitlement to wage loss benefits from July 8, 2023 to January 2, 2024, the date they started a new job with a different employer. On October 8, 2024, the WCB advised the worker that there would be no change to the earlier decision they were not entitled to wage loss benefits after July 7, 2023.

On November 6, 2024, the worker requested reconsideration of the WCB's decision to the Review Office. On December 10, 2024, the Review Office returned the worker's file to the WCB's Compensation Services for further investigation. The WCB gathered further wage information from the worker, the employer and the worker's new employer. In addition, on January 15, 2025, the employer advised the WCB that they would have continued to accommodate the worker on their modified duties, including their current post-surgery restrictions, had the worker not resigned. On February 20, 2025, the WCB advised the worker in a formal decision letter that there would be no change to the decision they were not entitled to wage loss benefits from July 7, 2023 to January 2, 2024 as the employer had suitable modified duties available for the worker but they resigned from their position.

The worker again requested reconsideration of the WCB's decision to the Review Office on February 25, 2025. In their submission, the worker indicated the employer had not provided them with suitable modified duties within their restrictions and as such, they were experiencing difficulties with their shoulder and resigned their position with the employer. On March 13, 2025, the Review Office determined the worker was entitled to partial wage loss benefits from July 8, 2023 to January 1, 2024. The Review Office found the evidence on file did not demonstrate the duties provided by the employer were outside of the worker's restrictions and found the worker voluntarily ended their employment on July 7, 2023. The Review Office further found the worker's average earnings were not correctly calculated, as determined by the WCB, and the worker had been paid partial wage loss benefits from February 15, 2023 to July 7, 2023. Further, the Review Office found the worker had a partial loss of earning capacity after July 7, 2023 and as such, the worker was entitled to partial wage loss benefits from July 8, 2023 to January 1, 2024.

The worker filed an appeal with the Appeal Commission on June 19, 2025, appealing the decision that they were not entitled to full wage loss benefits from July 8, 2023 to January 1, 2024. On June 30, 2025, the employer filed an appeal with the Appeal Commission appealing the decision that the worker was entitled to partial wage loss benefits from July 8, 2023 to January 1, 2024.

Reasons

Applicable Legislation and Policy

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

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. Accident is defined in Section 1(1) of the Act as including a chance event occasioned by a physical or natural cause, a wilful and intentional act that is not the act of the worker, or an event or condition, or a combination of events or conditions, related to the worker's work or workplace, that results in personal injury to a worker.

Under Section 4(2) of the Act, a worker injured in an accident is entitled to wage loss benefits for the loss of earning capacity that results 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. If the WCB determines that a worker has 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.

Worker’s Position

The worker was present at the hearing on their own behalf and provided an oral submission to the appeal panel. The worker provided evidence by way of answering questions posed by members of the appeal panel.

The worker’s position is that they are entitled to wage loss benefits and should be paid for the period July 8, 2023 to January 1, 2024, as they were never offered modified duties by their employer.

The worker’s evidence is that the duties they were required to do following their workplace accident were causing more pain to their shoulder. The worker indicated that their employer failed to communicate with them regarding their injury or to inquire about their injury or how the duties were affecting their shoulder.

The worker states that they ultimately had to resign from their employment as they could not continue to work for an employer that doubted their integrity, minimized their suffering and had them doing tasks that kept them in constant pain during their shifts.

The worker states that the WCB and the employer relied on the initial MRI findings, which were inaccurate, and as a result did not provide support to the worker.

The worker states that they resigned to preserve what little shoulder function they had left and did not want to risk injuring it further, as the work was causing them pain.

The worker submits that they had not recovered from the injury and the modified duties were not suitable.

Employer’s Position

The employer’s representative made an oral submission to the appeal panel at the hearing.

The employer stated that they were not questioning the validity of the injury and that the issue before the panel is narrow as it deals with a loss of earnings for a set period of time.

The employer noted that a written offer of modified duties was offered to the worker on December 11, 2022 and the evidence confirms that these duties were agreed to by the worker. The employer also notes that the worker was a department lead and therefore had autonomy over their team as well as their own tasks and responsibilities.

The employer noted that there was no evidence that the worker indicated their difficulties with their duties to their employer. The employer submits that the evidence is that what ultimately led to the worker’s resignation was the breakdown of employer and employee relations, which the worker believes fell below their standards post-injury, and the treatment that the worker received from the employer.

The position of the employer is that the decision rendered by the Review Office is correct. The employer submits that the evidence indicates that the worker was working modified duties and had suitable modified work available when they resigned.

The employer states that no wage loss benefits should be paid for the period July 8, 2023 to January 1, 2024.

Analysis

This appeal is about whether the worker is entitled to full wage loss benefits for the period July 8, 2023 to January 1, 2024. For the appeal to succeed, the panel would have to find that the worker experienced a loss of earning capacity during this period as a result of their compensable injuries. The panel was unable to make such a finding and therefore the worker’s appeal is denied, as detailed in the reasons that follow.

The worker submits they resigned their position on July 7, 2023 because they believed the employer was not accommodating their medical restrictions and that this led to increased symptoms. The worker therefore argues that their complete loss of income after July 7, 2023 was caused by the compensable right shoulder injury and that full wage loss benefits should be payable.

A review of the evidence on the file indicates:

• The worker remained on modified duties from December 29, 2022 until July 7, 2023. 

• The worker told the WCB that they were working modified duties (memorandum dated June 23, 2023).

• The duties in place restricted the worker from right-shoulder use, including no pushing, pulling, lifting, or overhead movement. 

• There is no medical evidence indicating that the assigned duties exceeded restrictions.

• The Review Office previously determined the duties were within restrictions. 

• In January 2025, the employer confirmed that had the worker remained employed, they would have continued offering modified duties fully within restrictions.

Based on this evidence, the panel finds, on a balance of probabilities, that suitable modified duties were available and continued to be available at the time of the worker’s resignation.

A worker is entitled to wage loss benefits only to the extent that their loss of earning capacity results from the compensable injury. A voluntary decision to resign for reasons unrelated to functional incapacity does not generate entitlement to full wage loss benefits.

The worker explained that they resigned due to interpersonal difficulties and feeling unsupported, rather than due to a formal medical inability to work. There is no contemporaneous medical evidence indicating the worker was prevented from performing the modified duties or required to stop work on July 7, 2023.

The panel accepts that the worker continued to experience medically supported limitations related to the November 25, 2022 accident, including findings of a progressive supraspinatus tear confirmed by MRI and medical advisor opinion. However, continued impairment does not automatically result in full wage loss entitlement. The question is whether the impairment rendered the worker unable to earn after July 7, 2023.

The panel acknowledges the worker did experience a shoulder injury, the severity of which was overlooked. The panel also accepts the worker’s evidence that they were experiencing symptoms due to their shoulder injury.

The evidence however shows the worker could have continued working within accommodated duties if they had remained employed. Thus, the worker’s post-resignation loss of earnings was not caused by the injury.

On a balance of probabilities, the evidence does not demonstrate that the worker experienced a total loss of earning capacity resulting from the compensable injury during the period July 8, 2023 to January 1, 2024.

The worker is therefore not entitled to full wage loss benefits for the appealed period. 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 24th day of November, 2025