The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was not entitled to wage loss benefits beyond May 1, 2022 and medical aid benefits beyond June 10, 2022. A hearing was held on November 8, 2022 to consider the worker's appeal.

Issue

1. Whether or not the worker is entitled to wage loss benefits after May 1, 2022; and

2. Whether or not the worker is entitled to medical aid benefits after June 10, 2022.

Decision

1. The worker is entitled to wage loss benefits after May 1, 2022; and

2. The worker is entitled to medical aid benefits after June 10, 2022.

Background

The worker filed a Worker Incident Report with the WCB on March 8, 2021, reporting a respiratory injury that occurred at work. The worker reported she tested positive for COVID-19 after being exposed to a COVID-19 positive resident on February 24, 2021.

The WCB spoke with the worker on March 17, 2021 who confirmed that she was informed of an outbreak at work and that a resident she worked with directly had tested positive for COVID-19 on March 6, 2021. The worker confirmed she would spend one to two hours of a typical eight-hour shift working with COVID-19 positive residents and that she wore personal protective equipment in the form of a surgical mask, full face shield, gloves and gown while working. The worker advised she had not been feeling well, with symptoms of diarrhea, nausea, loss of sense of smell, coughing, shortness of breath and fatigue prior to testing positive on March 7, 2021. The worker noted she had not been cleared to return to work yet. On March 29, 2021, the WCB advised the worker that her claim was accepted and payment of benefits commenced.

On April 1, 2021, the worker contacted the WCB to advise she was continuing to experience symptoms of her COVID-19 infection. The worker noted she was still having shortness of breath with prolonged talking and moving around, increased coughing with physical activity, muscle weakness, occasional headaches, and fatigue, and had not regained her sense of taste or smell. The worker advised that the employer's safety and health department had not cleared her to return to work and she had an appointment with her family physician on April 12, 2021.

At the April 12, 2021 appointment, the worker's treating family physician noted the worker continued to have a cough, shortness of breath with minimal activity and fatigue, and recommended she remain off work until May 4, 2021. At a follow-up appointment on May 3, 2021, the treating family physician noted the worker reported persistent cough and shortness of breath and was awaiting spirometry testing to assess her lung function, and recommended the worker remain off work for a further four weeks.

On May 13, 2021, the worker underwent spirometry testing, the results of which indicated the worker's airway resistance was normal, but showed the worker had a diffusion defect, which the attending respirologist noted was consistent with a pulmonary vascular process/interstitial disease such as post-COVID fibrosis. The worker's treating family physician reviewed the spirometry testing with the worker at an appointment on June 3, 2021. The physician noted the worker's chest was clear, but the testing and included report indicated a diffusion abnormality, and recommended the worker increase her activity as tolerated.

At a further follow-up appointment on June 28, 2021, the worker's treating family physician recommended the worker begin a graduated return to work, starting with four-hour shifts two times per week for two weeks, and then review how the worker tolerated this. The worker returned to work on July 7, 2021, but advised the WCB on July 8, 2021 that she had to leave work early due to an increase in symptoms including shortness of breath and fatigue.

The employer contacted the WCB on July 12, 2021 to advise they would be stopping the worker's graduated return to work as of that date due to medical reasons. Following an appointment on July 12, 2021, the worker's treating family physician confirmed the graduated return to work would be put on hold for approximately a month to allow the worker's symptoms to improve.

On September 8, 2021, the worker began another graduated return to work, which included the worker working two-hour shifts for two shifts per week, to be reviewed after two weeks. At a follow-up appointment on September 21, 2021, the worker's treating family physician noted the worker reported continued shortness of breath with fairly minimal activity, and recommended the worker continue with light duties at two-hour shifts for two shifts per week for a further four weeks. On October 25, 2021, the worker saw the respirologist who opined, following his assessment of the worker and further pulmonary testing, that the worker had post-COVID symptoms and recommended further testing.

On December 1, 2021, the employer contacted the WCB to confirm the worker continued to work two-hour shifts two days per week, and appeared to be struggling with that schedule. The employer noted the worker always sounded short of breath and fatigued.

The worker's file was reviewed by a WCB medical advisor on January 12, 2022. A further review was conducted by the WCB medical advisor on February 23, 2022 following receipt of information from the treating respirologist, including the report of his October 25, 2021 examination of the worker, results of the October 25, 2021 pulmonary function testing, and results of a lung scan performed November 2, 2021. The medical advisor reviewed the testing conducted on the worker and opined that "Spirometry and lung scan reports and physician examination findings from [treating respirologist's] office fall within the normal range and provide no anatomic or physiologic evidence that might explain [the worker's] current symptom complex in relation to the March 7, 2021 acute COVID-19 infection." The WCB medical advisor opined that the worker's current difficulties were not medically accounted for in relation to the workplace accident, noting that "In the absence of a probable/established pathophysiologic process that might be related to a previous, remote COVID-19 infection, this review is not able to objectively substantiate functional limitations, or the need for workplace restrictions, in relation to the March 7, 2021 COVID infection."

On March 21, 2022, the WCB advised the worker they had determined the medical evidence supported she was able to return to her full regular duties without restrictions, and they were unable to attribute her ongoing difficulties and symptoms to her COVID-19 diagnosis. The WCB also advised the worker, however, that as she had not been working her full duties and hours for over a year, a gradual return to work schedule had been developed, as follows:

• Week of March 21, 2022 - Work 4 hours per shift (Monday, Tuesday, Thursday, Friday) 

• Week of March 28, 2022 - Vacation 

• Week of April 4, 2022 - Work 6 hours per shift (Wednesday (sic) 

• Week of April 11, 2022 - Work 6 hours per shift 

• Week of April 18, 2022 - Work 7 hours per shift • Week of April 25, 2022 - Work 7 hours per shift 

• Week of May 2, 2022 - Return to full hours

The WCB further advised the worker that she would be entitled to partial wage loss benefits based on the schedule, with her entitlement to wage loss benefits ending effective May 1, 2022 on completion of the graduated return to work plan.

On May 9, 2022, the worker's treating physiotherapist contacted the WCB to discuss the worker's two remaining pre-authorized sessions of physiotherapy. On May 10, 2022, the WCB confirmed by way of letter addressed to the physiotherapist and copied to the worker, that the worker could attend the two remaining sessions, which were to be completed by June 10, 2022, and that treatment beyond that date would not be authorized.

On May 31, 2022, the worker's union representative requested that Review Office reconsider the WCB's decision. The representative submitted a report from a post-COVID clinic the worker had attended and a report from the worker's treating physiotherapist with that request, and provided a detailed chronology of the worker's symptoms and medical treatment. The representative noted the worker's treating healthcare providers supported the worker continued to suffer the effects of her COVID-19 infection and submitted that she had not recovered from the compensable injury and was entitled to further wage loss and medical aid benefits.

On July 11, 2022, Review Office determined the worker was not entitled to wage loss benefits beyond May 1, 2022 or medical aid benefits beyond June 10, 2022. Review Office agreed with and relied on the opinions of the WCB medical advisor that the medical evidence did not support the worker's symptoms were medically accounted for at 15 months post-COVID infection. Review Office went on to find that although the WCB had ended the worker's entitlement to medical aid benefits on March 25, 2022, they had authorized two additional physiotherapy treatments to be completed by June 10, 2022. Review Office found that this was appropriate, as it would also provide support to the worker through her return to work plan, and determined that medical aid benefits were extended to June 10, 2022.

On July 26, 2022, the worker's union representative appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation

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

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.

Subsection 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting 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.

Subsection 27(1) of the Act states that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, or the worker attains the age of 65 years.

Worker's Position

The worker was represented by her union's labour relations officer, who made an oral presentation to the panel. The worker and her representative responded to questions from the panel.

The worker's position was that she has not recovered from her compensable injury and is entitled to wage loss benefits after May 1, 2022 and medical aid benefits after June 10, 2022.

In response to questions from her union representative, the worker spoke about her COVID-19 symptoms and efforts to recover and return to work. The worker described her workplace and her role at work, noting it is a pretty stressful environment which is fast-paced and physically demanding, and that she still finds it difficult to keep up even though she is not at full workload at this time. The worker said her symptoms make it very difficult to do the job she ought to do, and she currently has restrictions where she works with a buddy.

The worker's representative submitted that evidence confirms that the worker's symptoms have been consistent throughout, with the initial symptoms when she tested positive documented as muscle ache, nausea, tired, shortness of breath. The worker continued to experience symptoms, including muscle weakness, fatigue and shortness of breath which were not an issue prior to her COVID injury. The representative submitted that the evidence confirmed the worker sought medical attention regularly, and made significant efforts to address her symptoms and return to work.

The representative noted that the opinions of the WCB medical advisor, which were based on file reviews, were in stark contrast to the findings and opinions of the treating medical practitioners, which were based on in-person assessments, and submitted that more weight should be given to the treating medical practitioners.

The representative further submitted that the WCB medical advisor's opinions that the worker's symptoms, including shortness of breath and fatigue were not related to the initial COVID-19 infection is not in keeping with the opinions of the World Health Organization, which has a clear definition of how someone could be diagnosed with long COVID and common symptoms of that condition.

The worker's representative submitted that in the circumstances, the decision to discontinue the worker's wage loss and medical aid benefits was clearly premature, and the worker's appeal should be granted.

Employer's Position

The employer did not participate in the appeal.

Analysis

There are two questions on appeal for the panel to determine, being whether or not the worker is entitled to wage loss benefits after May 1, 2022, and whether or not the worker is entitled to medical aid benefits after June 10, 2022. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker had a loss of earning capacity beyond May 1, 2022 and/or required medical aid beyond June 10, 2022 as a result of her February 24, 2021 workplace accident and injury. The panel is able to make those findings, for the reasons that follow.

The panel is satisfied that the decision to end the worker's wage loss and medical aid benefits was premature. The evidence indicates that the worker continued to experience symptoms which she experienced as a result of her compensable injury, including fatigue, shortness of breath and muscle weakness, and has regularly and consistently sought medical assistance and treatment to address those symptoms. The worker's evidence at the hearing was that she continues to see her treating family physician every month.

When the WCB ended the worker's benefits, they developed a gradual return to work plan, recognizing that the worker had not been working her full duties and hours for over a year. The plan was developed without input from the treating medical providers or the WCB medical advisor and commenced March 21, 2022 and ended May 2, 2022. When asked at the hearing whether she had been able to successfully follow that plan and complete those shifts, the worker stated there was no way she could do so. The worker indicated that she is still on a return to work program, and is currently working up to six-hour shifts, seven days per two-week period, which she only started a few months ago. She said that she does not have a full workload, and has restrictions, where she works with a buddy. In the circumstances, the panel is satisfied that the worker therefore continued to have a loss of earning capacity after May 1, 2022, which was a result of the February 24, 2021 workplace accident and injury.

The evidence further shows that in a physiotherapy progress report dated December 1, 2021, the worker's treating physiotherapist recommended occupational therapy for the worker for cognitive recovery. That recommendation was denied five months later, on May 3, 2022. In the meantime, the worker sought help from a specialized program for post COVID-19 condition or long COVID, where assessments by a physiotherapist and occupational therapist confirmed her ongoing symptoms and indicated she exhibited the same pattern of fatigue as their long COVID clients. Information provided by the program indicated that she attended for treatment starting February 28, 2022. The worker stated at the hearing that her symptoms gradually improved with that program and she has now been discharged, with a program she can do at home.

The panel acknowledges the comments and opinions provided by the WCB medical advisor on January 12, 2022 and February 23, 2022. The panel notes that the medical advisor's conclusions appear to be limited by the lack of diagnostic criteria or objectively-determined anatomic or physiologic evidence, as opposed to a full assessment of whether the worker's ongoing symptoms were related to the original compensable injury. The WCB decision-making similarly appears to emphasize the lack of objective medical information to support ongoing compensability of the worker's symptoms or presentation, and to consider only clinical evidence as opposed to the totality of the medical and other information on file.

In the circumstances, and on a balance of probabilities, the panel finds that the worker had not recovered from the effects of the compensable injury, and suffered a loss of earning capacity after May 1, 2022 and required medical aid after June 10, 2022 as a result of her February 2021 workplace accident and injury. The panel therefore finds that the worker is entitled to wage loss benefits after May 1, 2022 and medical aid benefits after June 10, 2022, and returns the file to the WCB for further adjudication.

The worker's appeal on both issues is allowed.

Panel Members

M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 6th day of January, 2023