The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

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

1. They are not entitled to wage loss benefits after January 14, 2022; and 

2. They are not entitled to medical aid benefits after January 21, 2022.

A hearing was held on April 25, 2023 to consider the worker's appeal.

Issue

1. Whether or not the worker is entitled to wage loss benefits after January 14, 2022; and 

2. Whether or not the worker is entitled to medical aid benefits after January 21, 2022.

Decision

1. The worker is entitled to wage loss benefits after January 14, 2022; and 

2. The worker is entitled to medical aid benefits after January 21, 2022.

Background

In the Worker Incident Report submitted to the WCB on September 15, 2021, the worker made a claim to the WCB for a COVID-19 infection they believed they contracted at work on August 6, 2021, describing ongoing symptoms of chest pain, shortness of breath, severe fatigue, loss of taste and smell, as well as issues with their memory and difficulty with sleeping. On September 22, 2021, when the WCB contacted the worker to gather further information, the worker confirmed they received positive COVID-19 testing results on August 7, 2021, after testing on August 6, 2021, and described their symptoms at that time as feeling stuffed up, headaches, fatigue and flu-like symptoms. Currently, the worker described ongoing extreme fatigue, chest pain, shortness of breath with exertion, and brain fog. The worker advised the WCB they had not returned to work due to ongoing fatigue.

The WCB received a report related to the worker's attendance at a local emergency department on August 13, 2021 reporting chest pain. The worker reported they were feeling better the previous day and increased their activity level, which resulted in "…midsternal chest pressure, dull, with some mild shortness of breath. This pressure has been ongoing and not alleviated." X-rays, echocardiogram and lab testing were done, which did not demonstrate any sinister cause of pain and the worker was advised to follow-up with their family doctor for a cardiac work-up. On September 23, 2021, the WCB received copies of the notes from the worker's treating physicians placing them off work for ongoing COVID-19 symptoms. On September 28, 2021, the WCB accepted the worker’s claim.

At follow-up with their family physician on October 28, 2021, the worker reported continued fatigue, lack of strength, shortness of breath, chest pain and loss of smell. The family physician referred to the worker to a post-COVID clinic and noted the worker may benefit from a functional assessment.

A WCB medical advisor reviewed the worker’s claim file on November 24, 2021 and provided an opinion that the medical evidence on file did not support a specific medical diagnosis for the worker's symptoms and further, that at 3 months' post-COVID infection, there was no indication the worker had not recovered from the infection. As such, the medical advisor concluded the worker did not require restrictions and could return to work.

On November 25, 2021, the WCB discussed a graduated return to work with the employer, who confirmed they could accommodate the worker on a graduated return to work schedule. On further discussions with the worker and the employer, on November 30, 2021, the WCB provided the worker with a formal decision letter setting out their graduated return to work schedule of:

December 6-10 2 hours/shift 

December 13-17 4 hours per shift 

December 20-24 4 hours per shift 

December 27-31 6 hours per shift. 

January 1, 2022 8 hours/shift

The WCB determined the worker’s entitlement to wage loss benefits would end as of January 1, 2022 and that the worker was approved for 6 sessions of cognitive therapy treatments as transitional support for their return to work.

The initial physiotherapy assessment for the worker's appointment on November 29, 2021 contained a diagnosis of “post viral fatigue syndrome, long COVID” based on the worker's reported fatigue, headaches, difficulty remembering words, short term memory issues, pain in arms, inverting numbers, difficulty remember driving directions and worsened symptoms when tired. The physiotherapist recommended the worker attend 3 or 4 sessions prior to returning to work, anticipated to be in January 2022 and recommended a 9-week graduated return to work schedule, with specified breaks allowed. On request of the worker's representative, the treating physiotherapist's report was reviewed by a WCB medical advisor on December 9, 2021. The medical advisor concluded that "…the objective physical examination and medical investigation reports on file are not indicative of a specific medical diagnosis in relation to [the worker's] reported symptoms." On the same date, the WCB advised the worker the information was reviewed but there would be no change to the November 30, 2021 decision the worker's entitlement to wage loss benefits would end as of January 1, 2022.

On January 18, 2022, the worker's representative requested Review Office reconsider the WCB's decision to end the worker's entitlement to wage loss benefits effective January 1, 2022, submitting that the treating healthcare providers supported the worker’s position that they had not recovered from the symptoms of their COVID-19 infection and were suffering the effects of long COVID. The worker’s representative noted the occupational therapist from the COVID clinic, in a January 5, 2022 report, indicated "…there were significant issues identified with the client's memory, attention and endurance that could affect her daily functioning" and recommended further treatment.

On March 7, 2022, the employer provided a submission in support of the WCB's decision, a copy of which was provided to the worker and their representative. On March 9, 2022, Review Office determined the worker was entitled to further wage loss benefits as the evidence supported it was reasonable for the worker to attend at least the initial assessment with the occupational therapist prior to the implementation of a graduated return to work plan and therefore, the start date of December 6, 2021 for the graduated return to work plan was not appropriate, and the worker was entitled to further wage loss benefits. Review Office returned the worker's file to the WCB's Compensation Services for further adjudication.

The WCB provided a formal decision letter to the worker on June 20, 2022 outlining that it had determined that the worker would have attended at least two sessions with the occupational therapist by January 12, 2022 and as such, they were entitled to wage loss benefits to that date. On June 22, 2022, the WCB provided the worker with a further decision letter advising that their entitlement to medical aid benefits, including physiotherapy treatment, ended as of January 7, 2022, based on the November 29, 2021 report of the physiotherapist recommending 10 visits at a frequency of two times per week for a five week period.

The worker's representative requested reconsideration of both WCB decisions to Review Office on June 22, 2022. The representative noted the worker continued to experience the symptoms of long COVID and required further wage loss and medical aid benefits. On August 25, 2022, Review Office determined the worker was entitled to wage loss benefits to January 14, 2022 and to medical aid benefits to January 21, 2022. Review Office found that as the worker's normal working schedule was from Monday to Friday, it was reasonable to expect their graduated return to work schedule to align with that schedule and as such, they were entitled to wage loss to the start of a Monday to Friday period, being January 14, 2022. Regarding medical aid benefits, Review Office found the WCB had authorized 6 occupational therapy sessions for the worker to assist with the transition back to work and based on the revised graduated return to work schedule, the worker would not have returned to their full times duties until January 15, 2022 and accordingly, it was reasonable to extend entitlement to medical aid benefits to January 21, 2022.

The worker's representative filed an appeal with the Appeal Commission on February 7, 2023 and a hearing was arranged.

Reasons

Applicable Legislation

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 provisions of the Act and WCB policies in effect as of the date of the worker’s accident are applicable.

A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Under s 4(2), a worker 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.

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 s 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. Section 27 of the Act allows the WCB to provide medical aid “as the board considers necessary to cure and provide relief from an injury resulting from an accident.”

Worker’s Position

The worker appeared in the hearing with a union representative who provided an oral submission on behalf of the worker. The worker provided testimony to the panel through their own presentation as well as through answers to questions posed to them by members of the appeal panel.

The worker’s position, as set out in the union representative’s submission, is that the evidence confirms that they had not recovered from the effects of the compensable workplace injury by January 2022 when the WCB determined that the worker was no longer entitled to wage loss and medical aid benefits. The evidence rather demonstrates a consistency of the worker's symptoms and clinical reporting from the time of the accident to beyond January 2022, which supports a finding that there is a causal relationship between the worker’s continuing symptoms and the compensable diagnosis. As such, the worker should be entitled to wage loss benefits after January 14, 2022 and to medical aid benefits after January 21, 2022.

The union representative noted that the WCB’s decision to end the worker’s claim was based on the medical advisor’s November 24, 2021 and December 3, 2021 opinions that the physical examination findings and medical investigation reports on file did not indicate a specific medical diagnosis and further that there were no objective findings to support an ongoing need for benefits in relation to the COVID-19 diagnosis. The representative submitted that this decision was made in error, noting that neither a specific diagnosis nor objective findings are required for an injured worker to be entitled to benefits.

The worker’s representative submitted that the file evidence confirms the worker had consistent symptoms since they contracted COVID-19, including specifically issues with memory and fatigue, with memory issues first noted in the August 6, 2021 injury report and from August 18, 2021 onwards, both fatigue and memory issues, or brain fog, were reported by the worker. The union representative referred to the materials submitted in advance of the hearing as setting out the World Health Organization’s October 2021 definition of Long COVID as including common symptoms of “fatigue, shortness of breath, cognitive dysfunction” and noted that the worker reported these symptoms since shortly after their COVID-19 diagnosis.

The union representative noted as well that the November 29, 2021 initial assessment by the physiotherapist indicated the worker’s report of fatigue, headaches, difficulty remembering words, decreased short-term memory, tingling and pain in arms, inverting numbers, difficulty remembering driving directions, which worsened when tired. The physiotherapist provided a diagnosis of “Post-viral fatigue syndrome, Long-COVID” and recommended 10 sessions of physiotherapy and 4-6 sessions of occupational therapy to “help identify specific areas of deficit and to come up with strategies to help with safe and productive return to work.” The physiotherapist suggested that 3-4 physiotherapy sessions occur prior to beginning a gradual return to work program in January 2022 and stated that “A slow return to work plan is recommended to help manage fatigue and help prevent flare ups to allow sustainable return to work.” The worker’s representative noted that although the WCB established a 4-week gradual return to work for the worker it did not do so in accordance with the physiotherapist's recommendation that it begin in January following treatment. The physiotherapist’s recommendations addressed the worker’s concern for the safety of the people they worked to support which could be hampered by the worker’s memory deficits.

The union representative also relied upon the findings of the December 17, 2021 “Brainfx” assessment, as set out in the report submitted to the WCB on January 6, 2022. That report identified “significant issues…with the client’s memory, attention and endurance that could affect [their] daily functioning.” The testing revealed that the worker’s recall failed when provided with more complex auditory information, and this could make following complex sets of instruction difficult. Further, it revealed the worker struggled to hold complex information in order to manipulate it and noted specific examples of how the worker’s deficits would impact their day to day work requirements. The assessing occupational therapist recommend 6-1 hour sessions of “cognitive rehabilitation” to begin working on the recommendations set out in their report, to take place every 1- 2 weeks with homework provided as well. The worker’s representative noted that although the Brainfx assessment findings objectively substantiated the worker’s reports to that time, it does not appear that these findings were reviewed by the WCB’s medical advisor before the WCB confirmed it would not change the decision to terminate the worker’s benefit entitlements.

The worker’s representative confirmed that the worker participated in a return to work meeting with the employer on January 7, 2022 at which time the employer confirmed that it could not accommodate the worker with office-based work or in their usual job duties working with a buddy. As such, the worker did not return to work in January 2022 but continued with medical treatment and applied for long term disability benefits, which were received until August 24, 2022. The worker returned to their full duties and hours on August 25, 2022 after completing a 12-week graduated return to work program with the support of the disability insurance provider.

The worker explained to the panel that the WCB advised they had to choose between physiotherapy and occupational therapy but could not undertake both as recommended by the treating physiotherapist. The worker testified that they chose occupational therapy as they believed that would best support their return to work, but that they were unable to access that therapy until December 17, 2021 for the first time, and then not again for another 4 weeks after that, by which time the WCB had already determined the treatment should have been completed, a decision later overturned on appeal to Review Office.

The worker testified that they attended another return-to-work meeting with the employer and the disability insurance provider on March 16, 2022 but that a return to work did not occur at that time as the worker still required support from a “buddy” to return to their duties. The worker subsequently participated in a volunteer-based program, facilitated by the insurance provider. In April 2022, the worker was assessed by a neuropsychologist who determined the worker was cognitively “safe to be at work”, following which a 12-week graduated return to work took place.

The worker confirmed that they continue to feel “exhausted all the time” and have to manage their energy during time off so as to be able to continue working. The worker noted they remain unable to pick up shifts over and above their 0.6 FTE schedule. The worker also stated that their sense of taste and smell has not returned.

Employer’s Position

The employer did not participate in the appeal.

Analysis

This appeal is from the Review Office’s decisions that the worker is not entitled to wage loss benefits after January 14, 2022 and that the worker is not entitled to medical aid benefits after January 21, 2022. For the worker’s appeal to succeed, the panel would have to determine that the worker continued to sustain a loss of earning capacity beyond January 14, 2022 in relation to the compensable workplace injury, and further, that the worker required further medical aid in relation to the compensable workplace injury beyond January 21, 2022. As outlined in the reasons that follow, the panel was able to make such findings and therefore, the worker’s appeal is granted.

The WCB accepted the worker’s claim in August 2021 relating to the diagnosis of COVD-19 more likely than not contracted while at work. Based on the questions on appeal, the panel considered whether the evidence indicates that the worker was recovered from the compensable diagnosis by the point in time that the WCB determined the worker was no longer entitled to benefits. The medical reporting from the date of accident through to December 2021 indicates that the worker continued to report symptoms including loss of taste and smell, shortness of breath, fatigue, insomnia and memory deficits. By September 28, 2021, the treating family physician referred the worker to a Post-COVID clinic for assessment, which took place on December 1, 2021. By that point, despite the physician’s reporting and the not yet completed referral, the WCB medical advisor expressed their opinion on November 24, 2021 that “…the objective physical examination and medical investigation reports on file are not indicative of a specific medical diagnosis in relation to [the worker’s] reported symptoms” and that at 3 months since the diagnosis of an acute COVID-19 infection, “there is no indication of pathology to indicate that [the worker] has not recovered.”

The panel also reviewed the December 1, 2021 assessment report from the Post-COVID clinic physiotherapist which indicated a diagnosis of “post viral fatigue syndrome; Long COVID” based upon the worker’s subjective reporting of symptoms as noted above, and a number of testing measures outlined in the report. We note that the WCB medical advisor reviewed the report findings on December 9, 2021 and discounted the relevance of the various testing measures on the basis that these were based on the worker’s self-report and did not “provide objective evidence of cause and effect” and confirmed their November 24, 2021 opinion.

The panel further considered the findings of the December 17, 2021 BrainFx assessment report, noting that the report confirmed the worker’s statements that they were having issues with memory, attention and endurance which required some workplace accommodations to be made for the worker to function safely in the workplace, including supervision and having extra time for tasks. Subsequently and based on this assessment, the treating physiotherapist cleared the worker for a graduated return to work over 10 weeks, with restrictions including working with a buddy to ensure no errors were made, while receiving further cognitive rehabilitation treatment and additional physiotherapy to help the worker to stabilize and manage symptoms during the period leading up to and beyond the return to work.

The panel noted that there is a lack of medical reporting in evidence to indicate that the worker was recovered from the compensable diagnosis as of January 2022. While the WCB medical advisor was of the view that the worker should be recovered at several months post-diagnosis, the evidence does not support a finding that this was the case in November 2021, nor that there had been any further recovery by mid-January 2022. The evidence rather supports the worker’s position that they continued to experience symptoms related to their compensable COVID-19 diagnosis into 2022 and that further treatment through physiotherapy and occupational therapy were recommended in relation to that diagnosis. In this regard, the panel noted that the evidence of non-recovery is based largely upon the worker’s subjective reporting, which is supported by the reporting of the treating and assessing medical professionals. We do not agree with the opinion of the WCB medical advisor that the diagnosis must be objectively validated to entitle the worker to benefits where, as here, the WCB has already accepted the initial diagnosis and there is a consistency of reported symptoms known to be related to that diagnosis beyond that initial testing.

Further, the panel noted the evidence that the employer, while able to accommodate a reduced-hours schedule as originally proposed in late fall 2021, was not able to accommodate the worker’s restrictions in relation to working with a buddy. The evidence confirms that as of January 7, 2022, the employer was unable to accommodate the proposed restriction requiring the worker to be partnered with a buddy in their work, and this remained the case through to March 2022, according to the worker’s testimony.

On the basis of the evidence before the panel, and on the standard of a balance of probabilities, we are satisfied that the worker continued to experience symptoms related to the compensable diagnosis beyond December 2021 and that as a result, the worker required workplace restrictions that the employer could not accommodate, and the worker also required additional medical aid related to the compensable diagnosis. Therefore, the worker is entitled to wage loss benefits after

January 14, 2022 and is entitled to medical aid benefits after January 21, 2022. The worker’s appeal is granted.

Panel Members

K. Dyck, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 30th day of May, 2023