The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

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

1. Wage loss benefits are limited to two hours of time loss on July 20, 2022; 

2. The worker's right leg/hip and sacrum area complaints are not compensable conditions; and 

3. There is no entitlement to wage loss benefits from August 4, 2022 to August 10, 2022.

A hearing was held on April 27, 2023 to consider the worker's appeal.

Issue

1. Whether or not wage loss benefits are limited to two hours of time loss on July 20, 2022; 

2. Whether or not responsibility should be accepted for the worker's right leg/hip and sacrum difficulties as being related to the July 8, 2022 accident; and 

3. Whether or not the worker is entitled to wage loss benefits for the period August 4, 2022 to August 10, 2022.

Decision

1. Wage loss benefits are not limited to two hours of time loss on July 20, 2022; 

2. Responsibility should be accepted for the worker's right leg/hip and sacrum difficulties as being related to the July 8, 2022 accident; and 

3. The worker is entitled to wage loss benefits for the period August 4, 2022 to August 10, 2022.

Background

The employer provided the WCB with an Employer's Accident Report on July 15, 2022, reporting the worker injured her right ankle in an accident at work on July 8, 2022. The employer described the accident as:

Employee was heading up a flight of stairs in client's building and when rounding the landing and starting up the…next flight of stairs, employee twisted right foot slightly to the left side. Employee grabbed the railing and was able to get balance back to avoid falling. Employee reports feeling a sharp pain in right foot. Employee continued to next client and felt discomfort in right foot and was unable to complete shift.

The WCB contacted the worker on July 18, 2022 to discuss her claim. The worker confirmed the description of the workplace accident on the employer's report but noted she twisted her foot to the right, not the left as noted by the employer. The worker noted she felt a sharp/hot pain on the top portion in the middle of her right foot, and the pain was more on the lateral side of her foot. The worker advised she sought medical treatment on July 13, 2022 and was referred for physiotherapy. Her only time loss was on July 11, 2022, and she returned to her regular duties after that. The worker noted that currently her right foot was sore when she put her whole weight on it, and she felt "an overall tiredness on the right lateral side of the leg."

On July 14, 2022, the WCB received a Doctor First Report from the worker's appointment on July 13, 2022. The physician noted in that report that the worker complained of "pain over the dorsum of the foot, no swelling/redness. Now pain in the right lower lateral leg. Worse with movement." Findings on examination included tenderness at the base of the worker's 5th metatarsal and good range of motion in the ankle. The physician recommended an x-ray of the right ankle/foot, along with rest, icing and non-steroidal anti-inflammatories. No diagnosis was provided.

On July 19, 2022, the WCB advised the worker that her claim had been accepted and wage loss benefits from July 9 to 11, inclusive, were approved.

On July 21, 2022, the WCB received a copy of the worker's initial physiotherapy assessment from July 20, 2022. It was noted that the worker reported pain to her right lateral foot, tightness to the right lateral leg, a stiff right hip, and stiffness in her foot in the morning. The worker further noted her foot was hurting more that day, so she took the day off work. The physiotherapist noted findings which included pain at the end range of ankle plantar flexion and inversion, as well as tenderness with palpation and swelling to the right 4th and 5th metatarsals. The physiotherapist provided a diagnosis of a right lateral ankle and foot sprain, and noted the worker was currently able to perform her regular duties, but might need breaks from prolonged walking.

On August 4, 2022, the worker attended a follow-up appointment with the treating physiotherapist. The physiotherapist noted the worker reported persistent pain to her right lateral foot and that being on her feet all day for work aggravated her injury. She also reported tightness to her right lateral lower leg and right hip. The physiotherapist again noted tenderness with palpation and swelling to the 4th and 5th metatarsals of the right foot, increased tone to the worker's right peroneal and gluteal/piriformis areas, and decreased weightbearing/stance on the worker's right foot with gait. The physiotherapist recommended a lacrosse ball for the worker's use at home for self-muscle release and that the worker remain off work for one week, returning to her regular duties on August 11, 2022.

The WCB spoke with the worker on August 5, 2022 to gather further information. The worker advised the WCB she missed work on July 20, 2022 due to pain in her right foot, returned to work on July 21, 2022, then was placed off work by her treating physiotherapist from August 4 to August 10, 2022. When asked by the WCB about time loss, the worker advised she woke up on July 20, 2022 with a stiff and extremely painful right foot which prevented her from working that day, and on August 4, 2022 her physiotherapist placed her off work for one week due to pain and stiffness going up her right leg.

On September 6, 2022, the worker's treating physiotherapist provided a note to the WCB in support of the worker missing work on July 20, 2022. The physiotherapist noted that based on the worker's complaints of pain and stiffness, they believed it was reasonable for the worker to not report to work that day. The physiotherapist further noted that no restrictions were put on their initial assessment report as they believed the worker would be capable of returning to work the next day.

On September 7, 2022, the WCB requested copies of the treating physiotherapist's chart notes for the worker's appointments, and on September 14, 2022, the WCB received chart notes for appointments from July 20, 2022 to August 30, 2022. On September 15, 2022, the WCB sent an email to the worker requesting further information. On September 29, 2022, the WCB received a response to that request, in which the worker advised that after the incident, her right foot was hurting and getting worse, and that the right lateral side of her leg started hurting within a few days. The worker further noted that the treating physiotherapist advised that this was due to the worker compensating for the pain in her foot. The worker noted that by August 4, 2022, she was experiencing pain travelling from her foot up her right leg and into her pelvic area, and the physiotherapist told her this was due to her continuing with her regular duties. She said the physiotherapist placed her off work for one week so the muscles could "…calm down, and they did with some rest."

In a further conversation with the WCB on October 3, 2022, the worker advised she was working her full regular duties until she was placed off work, and no one at work knew she was having difficulties. The worker noted her foot was still bothering her, and her physiotherapist advised that the pain was increasing because she did not get enough rest to heal her foot.

On October 6, 2022, the WCB advised the worker that her time loss on July 20, 2022 and from August 4 to August 10, 2022 was not acceptable. The WCB noted they paid the worker for time missed to attend the appointment with the physiotherapist on July 20, 2022, but the medical information on file did not support she was totally disabled from working that day, and she was therefore not entitled to wage loss for her full shift. The WCB further determined that the medical information reported she was experiencing an aggravation to her right leg and pelvis as a result of the injury, but this was a secondary injury which was not accepted, and she was therefore not entitled to time loss from August 4 to 11, 2022.

On October 19, 2022, the worker requested that Review Office reconsider the WCB's decision. The worker noted she worked every day from July 11 to July 19, 2022, during which time her sore foot became more painful and stiff, and she was not fit to work on July 20 due to the pain from her compensable injury. The worker further noted the treating physiotherapist placed her off work from August 4 to 10, 2022 to give her muscles a chance to calm down and heal, as placing her full weight on her foot all day while working, had affected her leg and hip.

On December 7, 2022, Review Office upheld the WCB's decision. Review Office noted that the treating physician indicated on July 13, 2022 that the worker would not be disabled from work beyond the date of the incident. The worker performed her pre-accident duties, the demands of which were significant, to July 19, 2022, and the treating physiotherapist did not provide restrictions for the worker after her appointment July 20, 2022. Review Office therefore found that the worker was capable of returning to her regular duties on July 20, 2022 and agreed with the WCB's decision to limit the worker's wage loss to two hours for the appointment that day.

Review Office further noted that the worker's reason for being off work from August 4 to 10, 2022 was related to pain and stiffness going up her right leg, which were newly reported areas of concern. Review Office found they were unable to account for the reported right leg/hip and sacrum difficulties in relation to the July 8, 2022 workplace accident, given the absence of upper right leg/hip complaints in close proximity to July 8, 2022 and the delay in manifestation of such symptoms. Review Office therefore determined that the worker's right leg/hip and sacrum area complaints were not compensable conditions, and the worker was not entitled to wage loss for her time loss from August 4 to August 10 2022.

The worker filed an appeal with the Appeal Commission on January 11, 2023, and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations made under the Act and policies established by the WCB's Board of Directors.

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. The compensation which is payable includes wage loss benefits.

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 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 represented herself on the appeal, and was provided with the services of an interpreter. The worker's position was her time lost from work on July 20, 2022 and from August 4 to 10, 2022 resulted from her July 8, 2022 workplace accident and injury and she is entitled to wage loss benefits for those periods of time.

The worker noted that she suffered an injury to the lateral side of her right foot on July 8, 2022. She went back to work, thinking her foot would heal by itself. The worker noted she continued working from July 11 to July 19, 2022, but her foot became more painful and stiff. The worker said that when she tried to get out of bed on the morning of July 20, 2022, her foot had really stiffened and she was limping. She phoned work and said she could not come in that day as her injury was worse. She said her foot started to feel a little better as the day progressed, and she went to see the physiotherapist. The worker submitted that she was not fit to work on July 20, 2022 due to the pain from her compensable injury, and she is entitled to wage loss benefits for that entire day.

In response to questions at the hearing, the worker said she only took the one day off work on July 20, 2022 because she felt better after being treated by the physiotherapist and thought she could continue working. The worker noted she was the main breadwinner in her family and did not want to take any time off work. She said the physiotherapist told her it should be alright to go back and just take it easy at work.

The worker submitted that the injury was to the lateral side of her right foot and affected the way she was walking. She returned to work on July 21, 2022, but the pain and stiffness got worse as she continued walking at work, and was affecting her whole leg and hip. When she saw her physiotherapist on August 4, 2022, he provided a sick note putting her off work for a week so her muscles could calm down a little bit and heal. The worker indicated she was following her physiotherapist's instructions, and is entitled to wage loss benefits for the period of time she was off work, from August 4 to 10, 2022.

Employer's Position

The employer did not participate in the appeal.

Analysis

Issue 1: Whether or not wage loss benefits are limited to two hours of time loss on July 20, 2022.

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker suffered a further loss of earning capacity on July 20, 2022 resulting from her July 8, 2022 workplace accident. The panel is able to make that finding for the reasons that follow.

Based on our review of all of the evidence which is before us, the panel is satisfied that the worker suffered a loss of earning capacity for the full day on July 20, 2022 as a result of her workplace accident and injury, and is entitled to wage loss benefits for the entire day.

The evidence shows that the worker returned to work on July 11, 2022, three days after the incident, and continued working until July 19, 2022. While the worker was able to continue working for that period of time, the panel understands that the worker's job involved a significant amount of walking and weight-bearing, and the evidence supports that the worker experienced increased pain and stiffness as she continued performing her duties.

The worker's evidence at the hearing was that when she got up out of bed on July 20, 2022, her foot was very stiff and painful, and she called in to work to advise that she would not be coming in that day. The worker indicated that even though they do not have to provide a reason for their absence, she told them at the time that it was because the injury to her foot was worse and that she could not put weight on her foot.

The worker said she attended the initial assessment with the physiotherapist later in the day on July 20, 2022. The worker indicated that she also received some treatment from the physiotherapist at that time, after which she felt better and thought she would be able to return to work the next day.

It was noted that the physiotherapist's report did not indicate whether the worker was unable to work on July 20, 2022. The physiotherapist later provided a note dated September 2, 2022, in an effort to clarify any confusion with respect to the worker's ability to work on July 20, 2022. The physiotherapist wrote in that note that the worker came in for an initial assessment on July 20, 2022 and did not go to work that day due to waking up with stiffness/pain to her right foot. The physiotherapist went on to state, in part, that:

Based on subjective complaints and objective findings that day, I believe that it is reasonable that she did not work that day due to her work injury. No restrictions were put on her initial assessment report since we believed she would be capable of returning to her regular duties the next day.

When asked about that note, the worker said it was a fair assessment and that as pain is subjective, the physiotherapist had asked her at the time if she thought she was capable of working.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered a further loss of earning capacity on July 20, 2022 resulting for her July 8, 2022 workplace accident.  The panel therefore finds that wage loss benefits are not limited to two hours of time loss on July 20, 2022, and the worker is entitled to wage loss benefits of that entire day.

The worker's appeal on this issue is allowed.

Issue 2: Whether or not responsibility should be accepted for the worker's right leg/hip and sacrum difficulties as being related to the July 8, 2022 accident.

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker's right leg/hip and sacrum area difficulties were causally related to the July 8, 2022 workplace accident. The panel is able to make that finding for the reasons that follow.

The panel is satisfied that the evidence supports the worker experienced early and ongoing difficulties in the lateral leg/hip and sacrum area as a result of her July 8, 2022 workplace accident. The worker indicated in her evidence at the hearing that she started experiencing symptoms with respect to such difficulties three to four days after the workplace incident, when her foot would be very stiff in the morning and she started limping. The panel is further satisfied that the evidence supports that the worker's right foot and right leg/hip and sacrum difficulties worsened as the worker continued to perform her work duties.

The panel understands that there were references to difficulties with respect to the worker's right leg and hip early in the medical information on file. In the July 13, 2022 Doctor First Report, the treating physician noted the worker's complaints of pain in the right lower lateral leg, worse with movement and stiff right hip.

At his initial assessment of the worker on July 20, 2022, the physiotherapist also noted the worker's complaints included tenderness to the right lateral leg and a stiff right hip, and reported findings of increased tone to the peroneal and anterior tibial area. Similar findings were noted in the physiotherapist's August 4, 2022 report. Based on those reports, the WCB authorized 18 physiotherapy treatment sessions for the worker on July 22, 2022, and approved the physiotherapist's recommendation of a lacrosse ball for home use for self-muscle release on August 5, 2022.

The panel recognizes that there were references on the file to a previous right hip injury. When asked about a previous right hip injury, the worker that this had occurred more than a year earlier, and she had completely recovered from that injury shortly thereafter.

Based on the foregoing, and on a balance of probabilities, the panel is satisfied that the worker's right leg/hip and sacrum area difficulties were causally related to his July 8, 2022 workplace injury. The panel therefore finds that responsibility should be accepted for the worker's right leg/hip and sacrum difficulties as being related to the July 8, 2022 accident.

The worker's appeal on this issue is allowed.

Issue 3: Whether or not the worker is entitled to wage loss benefits for the period August 4, 2022 to August 10, 2022.

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity between August 4 and August 10, 2022 as a result of her workplace accident. The panel is able to make that finding for the reasons that follow.

The evidence shows that the worker returned to work on July 21, 2022 to her regular duties, The panel notes that while the physiotherapist indicated in his July 20, 2022 assessment report that the worker was currently able to perform those duties, it was also noted that she "May need breaks from prolonged walking as needed."

The panel is satisfied that while the worker continued to perform her work duties through to August 4, 2022, the evidence shows that she experienced increased symptoms and difficulties in the performance of those duties.

In his August 4, 2022 report, the physiotherapist thus noted findings of increased tone to the right peroneal and gluteal/piriformis areas as well as "Decreased weightbearing/stance phase on R [right] foot with gait." The physiotherapist determined that the worker was not capable of alternative or modified work and was to be "Off work for 1 week. Return to work on regular duties and hours Aug 11, 2022."

The panel is satisfied that the worker was following her physiotherapist's instructions in going off work from August 4 to August 10, 2022. In response to questions at the hearing, the worker indicated that although her foot was still sore, her symptoms improved over that period of time, as she was basically at home taking it easy and doing a little stretching.

In the circumstances, and based on all of the foregoing, the panel is satisfied, on a balance of probabilities, that the worker's absence from work from August 4 to August 10, 2022 resulted from her workplace accident and injury. The panel therefore finds that the worker suffered a loss of earning capacity between August 4 and August 10, 2022 as a result of her workplace accident and is entitled to wage loss benefits for that period of time.

The worker's appeal on this issue 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 26th day of June, 2023