2022 MBKB 203, 2022 MBKB 203

Date: 20221027 Docket: CI 22-01-34483 (Winnipeg Centre) Indexed as: Colavito v. Manitoba (Workers Compensation Board) Cited as: 2022 MBKB 203 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: FRANK COLAVITO, ) Appearances: ) applicant, ) ISRAEL A. LUDWIG ) ANDREW C. DERWIN - and - ) for the applicant ) THE WORKERS COMPENSATION BOARD OF ) SACHA R. PAUL MANITOBA and THE APPEAL COMMISSION, ) ELI E. MILNER ) for the respondents respondents. ) ) JUDGMENT DELIVERED: ) October 27, 2022 GRAMMOND J.

Introduction [ 1 ] The applicant seeks an order setting aside decision 75/21 (the “Decision”) of the Appeal Commission (the “Commission”) of the Workers Compensation Board of Manitoba (the “Board”), and remitting this matter back to the Commission for reconsideration. Background Information [ 2 ] In May 2009 the applicant injured his right shoulder at work (a rotator cuff tear), for which he received payment of wage loss benefits from the Board. After surgery in October 2009, the applicant returned to work, doing light duties.

In October 2010, the applicant reported to his treating orthopedic surgeon increasing pain and weakness in his left shoulder, and in March 2011, an MRI confirmed a tear of his left rotator cuff. The applicant underwent surgery to his left shoulder in late December 2012. Thereafter, he received payment of disability insurance benefits through his employer. The Decision [ 3 ] The Commission considered and determined two issues in the Decision:

a) whether the Board should accept responsibility for the applicant’s left shoulder injury as a consequence of the May 2009 injury to his right shoulder; and

b) whether the applicant was entitled to wage loss benefits after November 14, 2014. Standard of Review [ 4 ] The parties agree, as do I, that the applicable standard of review of the Decision is reasonableness, pursuant to Canada

(Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 and Inkster v. The Workers Compensation Board ofManitoba et al, 2021 MBCA 14 . [5] I note the following general principles articulated in Vavilov:

a) a reasonableness review is meant to ensure that courts intervene in administrative matters only where it is truly necessary to doso in order to safeguard the legality, rationality and fairness of the administrative process. It remains, however, a robust form of review;

b) the burden is on the party challenging the decision, (in this case the applicant), to show that it is unreasonable;

c) the reviewing court must consider both the outcome of the decision and the reasoning process that led to the outcome;

d) to determine whether a decision is reasonable, the reviewing court must ask whether it bears the hallmarks of reasonableness:justification, transparency and intelligibility, and whether it is justified in relation to the relevant factual and legal constraints that bearupon it;

e) if a decision is based upon an internally coherent and rational chain of analysis that is justified in relation to the facts and lawthat constrain the decision maker, the reviewing court must defer to the decision. Conversely, if there is a failure of rationality internalto the reasoning process, the decision is unreasonable; and

f) for a decision to be reasonable it must be justified in relation to the constellation of law and facts that are relevant to thedecision. Analysis [6] Before considering the specific errors alleged by the applicant, I note that the Commission reviewed in the Decision thebackground of the applicant’s claim, including the medical evidence, and his position on the issues. The Commission also referenced ss.4(1), 4(2) and 39(2) of The Workers Compensation Act, C.C.S.M. C.

W200, which provide: Compensation payable out of accident fund 4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employmentis caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the followingsubsections. … Payment of wage loss benefits 4(2) Where a worker is injured in an accident, wage loss benefits are payable for his or her loss of earning capacity resulting from theaccident on any working day after the day of the accident, but no wage loss benefits are payable where the injury does not result in a lossof earning capacity during any period after the day on which the accident happens. … Duration of wage loss benefits 39(2) Subject to subsection (3), wage loss benefits are payable until (

a) the loss of earning capacity ends, as determined by the board; or (

b) the worker attains the age of 65 years. [7] The Commission also considered Board policy 44.10.80.40 entitled “Further Injuries Subsequent to a Compensable Injury” (the“Policy”) which reflects that “a further injury occurring subsequent to a compensable injury is compensable: (

i) when the cause of thefurther injury is predominantly attributable to the compensable injury”. Left shoulder injury

[ 8 ] I will consider first the Commission’s conclusion that the applicant’s left shoulder difficulties were not predominantly attributable to his May 2009 compensable injury. [ 9 ] It is important to note that the applicant does not allege that his left shoulder was injured in a one-time accident. Rather, he argued that after his return to work in October 2009 he used his left shoulder to excess because he was compensating for the shortcomings of his right shoulder.

The applicant argued that there is no evidence that his left shoulder issues were caused by anything other than work, and that it is reasonable and justifiable to conclude that after doing the same job for 37 years, the similar injuries that he suffered in each shoulder are related. In support of his position, the applicant provided a letter from his treating orthopedic surgeon dated October 2017 (the “Opinion”). [ 10 ] The applicant argued that the Commission made two errors relative to this issue, as follows:

a) the Commission rejected the Opinion and accepted the medical opinion of the Board’s medical advisor, an emergency physician whose qualifications are unclear, and who reviewed the matter years after the injury; and

b) the Commission raised the applicable standard of proof to a standard greater than a balance of probabilities. [ 11 ] I will address first the Commission’s comments and conclusion relative to the Opinion.

The Decision reflects: The panel is unable to place weight on the [Opinion] … [T]he surgeon stated that he could not confirm [ [1] ] the worker’s “…stated description as to the mechanism of injury or cause of his left shoulder pain” and that it would therefore “… be impossible to give a definitive answer as to the cause of his rotator cuff tear this many years after the fact.” While the surgeon went on to state that the applicant’s job required “significant manual task” [sic] and that it was “certainly well within reason that these activities could also cause the same type of pathology on his left shoulder” as on the right side, the surgeon’s opinion in this regard is speculative and not supported by the evidence.

Moreover, the mechanism of injury for the right and left shoulder injuries is not the same, with the right shoulder injury being advanced as a cumulative or repetitive injury. [ 12 ] In other words, the Commission found that the Opinion, on its face, did not support the applicant’s position that his left shoulder issues were caused by his work, or by his right shoulder injury.

The Commission did not cite the Board medical advisor’s review as support for its decision, however, it commented upon the review and noted that the advisor’s conclusion that the “left shoulder condition was not work-related and was “…a chronic condition building over many, many years.”” In other words, the Commission considered both medical opinions and appears to have based the Decision upon perceived deficiencies in the Opinion. [ 13 ] The Commission also considered the applicant’s responses to questions posed at the hearing, and noted that after he returned to work following his right shoulder surgery, he was performing light or sedentary duties with reduced hours, and does not appear to have been overexerting himself.

The Commission also noted that in 2010, the applicant advised the Board that he was able to work at his own pace, and did not do physical work if it hurt. [ 14 ] For all of these reasons, the Commission concluded that the applicant’s left shoulder difficulties were not predominantly attributable to his May 2009 right shoulder compensable injury, and that responsibility should not be accepted for the applicant’s left shoulder difficulties. [ 15 ] I am satisfied that the Commission gave due consideration to the Opinion, within the context of all of the evidence before it, and declined to place weight upon the Opinion pursuant to an internally coherent and rational chain of analysis.

Although my task on this application is not to reweigh the Opinion, I will add that I agree with the Commission’s conclusion. The Opinion states clearly that while the applicant’s left shoulder issues could have been caused by a workplace injury, a definitive answer as to the cause could not be given.

That evidence does not come close to establishing that the applicant’s left shoulder issues are predominantly attributable to his right shoulder issues, particularly within the context of the applicant’s own statements relative to his modified work duties. [ 16 ] I will now address the issue of the standard of proof applied by the Commission. [ 17 ] The applicant argued that after working in the same position for 37 years, and suffering a right shoulder injury at work, any reasonable person would conclude that his left shoulder injury was also work related. [ 18 ] The applicant did not challenge the applicability of the Policy in this case, and I accept that it is binding upon the Board and the Commission.

The Decision reflects on its face that the Commission identified a balance of probabilities as the applicable standard of proof, and considered pursuant to the Policy whether the applicant’s left shoulder injury was predominantly attributable to his May 29, 2009 compensable injury. [ 19 ] The law is clear that the applicable standard of proof is a balance of probabilities, and in my view that standard must not be conflated with the applicable test in this case, namely the “predominantly attributable” test found in the Policy. [ 20 ] There is no indication in the Decision that the Commission applied any standard of proof other than a balance of probabilities.

I reject the applicant’s submission that the Commission should have considered whether his shoulder injuries were “related”, whether on a balance of probabilities or on any other standard of proof. Whether the injuries were “related” is simply not the applicable test pursuant to the Policy, and in my view it would be a less stringent test than the “predominantly attributable” test. For all of these reasons, the Commission’s application of the standard of proof (balance of probabilities) to the applicable test (predominantly attributable) was coherent and rational. Benefits beyond November 14, 2014

[ 21 ] The applicant seeks payment of wage loss benefits from November 14, 2014 through to March 14, 2016. [ 22 ] The record reflects that from December 2012 through to late 2014 and beyond, the applicant was in receipt of disability insurance benefit payments through his employer. In December 2014 the applicant asked the Board to provide to him a rate calculation, to assist him in determining whether he would continue to receive disability insurance benefits or would seek wage loss benefits from the Board.

The Board agreed to provide the rate calculation, but failed to do so. [ 23 ] The applicant took no further steps relative to his claim with the Board until 2017, and has advised that in the intervening period of inactivity he was awaiting the Board’s rate calculation. [ 24 ] The Decision reflects that for the applicant to succeed on this issue, the Commission must have found that he suffered a further loss of earning capacity after November 14, 2014 as a result of the May 2009 accident.

The Commission noted a medical report dated November 4, 2014 which provided that although a further surgery was being contemplated for the applicant’s right shoulder, he wanted to avoid another procedure and decided to continue working on modified duties. [ 25 ] The Commission considered the applicant’s argument that because he was awaiting a rate calculation from the Board, he did not actually elect to receive disability insurance benefits at the material time.

The Commission found that the applicant did not provide a satisfactory explanation for why he did not further pursue his request for a rate calculation or contact the Board for over two years. The Commission concluded that as at November 14, 2014 the applicant was capable of participating in modified duties at work, but declined to do so and elected to continue to receive disability insurance benefits.

Accordingly, the Commission dismissed the applicant’s request for further wage loss benefits. [ 26 ] The Commission identified accurately the issue and the relevant evidence before it, including that as at November 2014 the applicant was in receipt of disability insurance benefits and was able to continue performing modified duties at work.

The Commission also considered the applicant’s request for a rate calculation, the Board’s failure to provide the calculation, and the applicant’s failure to follow up with the Board. [ 27 ] I will not reweigh the evidence on this issue, but I agree with the Commission that the applicant did not provide a satisfactory explanation of why he did not contact the Board for over two years.

If he was seriously considering the pursuit of payment of wage loss benefits from the Board in December 2014, he should have made additional efforts to obtain the rate calculation, and the Board’s failure to provide it does not give rise to an entitlement to benefits. [ 28 ] The Decision on this issue was based upon an internally coherent and rational chain of analysis that was justified in relation to the relevant facts and law. Conclusion [ 29 ] The applicant has not shown that the Decision was unreasonable.

The Commission reviewed the applicable facts and evidence, stated accurately the applicable law and policy, and reached conclusions in a transparent, justified and intelligible manner. [ 30 ] If costs cannot be agreed upon, counsel may seek an appearance to make submissions. ________________________ J.