The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their average earnings have been correctly calculated and there is no entitlement to benefits beyond February 17, 2021. A teleconference hearing was held on May 29, 2023 to consider the worker's appeal.

Issue

1. Whether or not the worker's average earnings have been calculated correctly; and 

2. Whether or not the worker is entitled to further benefits after February 17, 2021.

Decision

1. The worker's average earnings have been calculated correctly; and 

2. The worker is not entitled to further benefits after February 17, 2021.

Background

This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 85/21 dated June 28, 2021. The background will therefore not be repeated in its entirety.

On December 4, 2019, the worker filed a Worker Incident Report with the WCB reporting injury to their knee in an incident at work on November 22, 2019. The worker described the incident as follows: "I was installing a ladder and I'm not entirely sure what happened but something went wrong. The way we had to get the ladder up to the roof was weird. I didn't feel anything until the next morning. This is part of my daily work duties." The worker noted they initially felt their symptoms the following day when they were at home, after they took a step and their knee gave away. The worker further noted they had previous issues with their knee a "couple of months ago, also at work."

The worker attended a local urgent care facility on November 25, 2019, reporting acute right knee pain after lifting a heavy object the day previously and waking up with severe medial right knee pain. The treating healthcare provider noted slight swelling, tenderness along the medial joint line and medial collateral ligament, and that the worker was "hobbling." The provider queried a medial collateral ligament injury or meniscal tear, and suggested the worker avoid weight-bearing, and use pain medication and non-steroidal anti-inflammatories as needed. X-rays taken the same date noted "Small joint effusion. No fracture or malalignment," and the worker was referred to a sports medicine clinic for follow-up.

On November 29, 2019, the worker attended the sports medicine clinic, reporting developing right knee pain the morning after lifting a heavy ladder at work. The worker further reported pain in the medial side of the knee, worse when walking or going up and down stairs and when bending, and a history of knee pain a month previous was noted. On examination, the treating physician noted mild swelling, effusion and tenderness on the medial joint line, with positive ballottement and patellofemoral tests. The physician diagnosed right knee pain, with a flare-up of osteoarthritis, and recommended a knee brace and physiotherapy.

At an initial physiotherapy assessment on December 3, 2019, the worker described pain the morning after doing a ladder installation. The physiotherapist noted tenderness in the medial joint ligament, and effusion in the worker's knee with breakaway weakness, and diagnosed a suspected meniscal tear.

On December 4, 2019, the employer provided the WCB with an Employer's Accident Report indicating they were not aware the worker had injured themselves at work and noting the worker had advised of previous knee problems.

The WCB contacted the worker on December 11, 2019 to discuss their claim. The WCB noted the employer's concern of previous knee difficulties as indicated in the Employer's Accident Report, which the worker stated referred to an incident involving their right knee that occurred a few months previously, for which they did not seek medical treatment. The worker advised they were not aware they had osteoarthritis and did not report any prior knee difficulties. The worker confirmed the mechanism of injury and noted they finished their shift without reporting the incident to their co-workers or the employer. They woke with a lot of pain the following morning, and were unable to walk or weight-bear on their right leg. The worker advised they attended work on November 25, 2019, after the weekend, reported the injury and sought medical treatment, and had not returned to work since then.

The WCB also contacted the employer on December 11, 2019, who confirmed the worker did not make any complaints or report an incident with their right knee on November 22, 2019, but noted the worker had been making ongoing complaints about their right knee and ankle and had missed time due to those difficulties prior to November 22, 2019. The employer further confirmed the worker had not reported any previous incidents or injuries.

On December 19, 2019, the WCB advised the worker their claim was not accepted as they could not establish a workplace incident occurred on November 22, 2019. On February 4, 2020, the worker contacted the WCB and advised that the employer was aware of their right knee injury and they continued to suffer the effects of that injury. The worker requested reconsideration of the decision by Review Office.

On March 2, 2020, Review Office determined that the worker's claim was not acceptable as a relationship could not be established between the worker's right knee difficulties and an incident at work on November 22, 2019. Review Office noted an injury was not reported to the employer that day and file evidence indicated prior right knee difficulties.

On February 15, 2021, the worker filed an appeal with the Appeal Commission. In Decision No. 85/21, issued June 28, 2021, the Appeal Commission determined the worker's claim was acceptable. The Appeal Commission found that the evidence supported an accident occurred causing injury to the worker's right knee. The evidence also supported the injury occurred in the context of the worker's pre-existing mild right knee osteoarthritis, but did not support the injury in any way altered the pre-existing condition, which was non-compensable. The worker's file was returned to the WCB's Compensation Services for further adjudication with respect to benefit entitlement.

On July 8, 2021, the WCB contacted the worker to gather further information. The worker advised they had surgery on their knee on December 24, 2019 (later corrected to December 24, 2020), with a follow-up appointment for an injection on February 22, 2021. The worker advised their current symptoms included constant pain, with no improvement noted, and they could "…barely go up and down stairs." The worker further advised their position with the employer ended November 25, 2019, and other temporary work they had attempted since then was unsuccessful due to knee pain. The WCB advised the worker that further investigation was required to determine their entitlement to benefits.

On July 13, 2021, the employer provided the WCB with a time loss and wage form indicating the worker's hourly and weekly wage and noting the worker's last day worked was November 22, 2019. Based on the information provided, the WCB issued a wage loss payment to the worker on July 14, 2021 for the period November 23, 2019 to December 23, 2019, being the day prior to the worker's reported surgery.

By way of email on July 15, 2021, the WCB confirmed to the worker the wage loss had been sent and further medical information was required to determine if the December 24, 2019 surgery and the worker's ongoing difficulties were related to the November 22, 2019 workplace accident. On the same date, the worker contacted the WCB to request clarification as to how their wage loss benefits were calculated and to correct the surgery date to December 2020. By return email, the WCB advised the worker that additional medical information was required to determine further benefits as they did not have any medical information from January 15, 2020 to February 2021.

On July 20, 2021, the WCB received a report from the worker's treating family physician, along with chart notes, imaging reports and consultation reports from January 9, 2020 to April 13, 2021. On July 29, 2021, the medical information was reviewed by a WCB medical advisor, who opined that the likely diagnosis which was medically accounted for by the November 22, 2019 accident was a right knee medial meniscus tear, as supported by the mechanism of injury, the worker's reported symptoms, reported clinical findings, diagnostic imaging, and December 24, 2020 operative report. The advisor opined that the diagnostic imaging indicated the worker had a pre-existing degenerative condition of osteoarthritis, the natural history of which was "…generally progressive waxing and waning of symptomatology that may be associated with variably reduced knee function." (emphasis in original). The advisor opined that the December 24, 2020 surgery would have been expected to reduce the worker's knee function temporarily, with recovery from such surgery typically occurring in 6 to 8 weeks. The advisor noted the worker had reported pain of 10 on a scale of 10/10 in a discussion with the WCB on July 8, 2021. Noting the worker's medial meniscal tear was treated at the December 24, 2020 procedure, the advisor opined that the worker's current right knee issues were likely related to their ongoing right knee osteoarthritis and not medically accounted for in relation to the workplace injury.

On August 4, 2021, the WCB advised the worker that based on the information on their file, they had determined the worker had recovered from the effects of the November 22, 2019 workplace accident by February 17, 2021 and was not entitled to further benefits after that date. On the same date, a WCB payment assessor contacted the worker to request they sign and return a Canada Revenue Agency ("CRA") release form authorizing the WCB to collect income tax information from previous years in order to calculate their wage loss benefits.

On August 6, 2021, the worker advised the WCB they would only provide income information for the previous year and submitted a copy of their T4 Statements of Remuneration ("T4s") for 2019, along with information regarding payments they received for a project done in 2019. That same day, the WCB payment assessor advised the worker a temporary benefit rate had been calculated based on the information provided, and a wage loss benefit payment was authorized for the period December 24, 2019 to February 14, 2020. The payment assessor again asked the worker to sign a CRA release to enable the WCB to receive information regarding their income tax returns. On August 9, 2021, the worker advised they were not authorizing a release of further information to the WCB.

Further discussion took place between the worker, the WCB payment assessor and the worker's WCB case manager. In an email dated August 12, 2021, the WCB case manager advised the worker that the WCB required complete copies of the worker's income tax returns, verified by the CRA, in order to complete the worker's average earnings review and calculation. On November 8, 2021, the worker provided the WCB with copies of the 2019 and 2020 Income Tax Returns they had submitted to CRA for assessment, and on November 24, 2021, the worker provided copies of their Notice of reassessment for 2019 and Notice of assessment for 2020 issued by the CRA.

On November 29, 2021, a WCB sector manager advised the worker the information received was not sufficient to complete the average earnings review as it did not include details regarding certain income. On December 6, 2021, the WCB provided the worker with a formal decision letter and wage loss benefit payment for the period of February 15, 2020 to February 17, 2021, based on the previously substantiated income and temporary average earnings as previously calculated.

On October 20, 2022, the WCB received a copy of a report from another orthopedic specialist. The specialist reported the worker's history with respect to their right knee, noting the MRI conducted in May 2020 showed a posterior horn medial meniscal tear, as well as arthritis of the medial compartment, and the worker's orthopedic surgeon at the time advised an arthroscopy would likely provide only a 50/50 chance of helping. It was noted the worker underwent the surgery and found it did not help. The specialist noted the worker complained of pain "…all around the front of the knee and some medial with some swelling, locking and occasional giving out" and the worker reported they walked with a limp, did not use a cane, could not walk more than 10 minutes, and had difficulty with stairs.

On examination, the orthopedic specialist noted some swelling in the worker's knee, and that the worker had pain just touching the right knee and did not want to straighten the knee or bend it past 100 degrees. The specialist noted some mild crepitus, as well as quad atrophy, different from their left knee and leg, and that a McMurray test was impossible to interpret. The specialist noted x-rays taken in September 2022 again indicated "…some mild medial compartment arthritis" and opined that further arthroscopic surgery would not likely help, noting "…there is often very little that one can do to help the situation." The specialist recommended conservative treatment, and a more aggressive physiotherapy approach, with strengthening and improving range of motion, and that further surgery was not required.

On September 9, 2022, the worker provided additional information regarding their income in 2019. On November 16, 2022, the WCB advised the worker that they required further information to confirm the type of income referred to in the information the worker provided, including the type of work the worker was doing, whether they supplied their own material or tools or whether they were considered a subcontractor.

On November 10, 2022, the worker requested that Review Office reconsider the WCB's decisions on their average earnings and entitlement to further benefits. The worker disagreed with the amount of their wage loss benefits, arguing that only a quarter of their income was used when calculating their average earnings. The worker further submitted that the surgery they underwent was not successful and they continued to experience right knee difficulties.

On December 13, 2022, the worker submitted further employment information and requested the WCB recalculate their average earnings. On December 22, 2022, the WCB responded to the worker and requested clarification with respect to the information provided.

On January 9, 2023, Review Office determined that the worker's average earnings were correctly calculated and there was no entitlement to benefits beyond February 17, 2021. Review Office found that the WCB made several requests that the worker provide verifiable income information in order to calculate the average earnings. Review Office found that based on the available information, the WCB's calculation of the average earnings benefit rate was correct. Review Office noted that the worker's average earnings could be reviewed in the future if additional information became available.

With respect to entitlement to benefits beyond February 17, 2021, Review Office placed weight on the opinion of the WCB medical advisor that the medical evidence on file supported the worker had pre-existing degenerative osteoarthritis, which was not structurally altered by the November 22, 2019 workplace accident, and underwent a right knee arthroscopy on December 24, 2020 to repair the right medial meniscus tear, which resulted from the accident. Review Office agreed the worker would have recovered from the accepted surgery within 6 to 8 weeks and their current right knee difficulties were not related to the workplace accident.

On February 15, 2023, the worker appealed the Review Office decision to the Appeal Commission and a teleconference hearing was arranged for May 29, 2023.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the worker for comment. On September 27, 2023, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

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. The provisions of the Act which were in effect at 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.

Subsection 45(1) of the Act deals with the calculation of average earnings and provides that the WCB "…shall calculate a worker's average earnings before the accident on such income from employment and employment insurance benefits, and over such period of time, as the board considers fair and just..."

Subsection 45(2) states that in making a calculation under subsection (1), the WCB "…shall consider any employment income the worker has at the time of the accident from which the worker sustains a loss of earnings, whether or not the employment is in an industry to which this Part applies."

WCB Policy 44.10.20.10, Pre-existing Conditions (the "Pre-existing Policy"), addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Policy is stated, in part, as follows:

Many workers who experience a workplace injury also have a pre-existing condition. The fact that the worker has a pre-existing condition does not disentitle them to compensation for their workplace injury. However, the workers compensation system is designed to compensate workers for workplace injuries, not all injuries. It is often necessary, therefore, to distinguish between a worker's pre-existing condition and their workplace injuries. 

(Emphasis in Policy)

WCB Policy 44.80.10.10, Average Earnings (the "Average Earnings Policy") provides a framework for determining a worker's average earnings. The purpose of the Policy is stated, in part, as follows:

When a worker is injured at work, income from various sources may be interrupted. The workers compensation system is designed to replace all employment income lost as a result of a workplace accident, subject to limitations established under The Workers Compensation Act (the "Act").

The Average Earnings Policy provides that in most circumstances, the WCB uses one of three formulas to determine a worker's average earnings, selecting the formula which best reflects the worker's employment and earnings pattern before the accident. The three formulas which the WCB generally uses are the regular earnings formula, the average yearly earnings formula and the probable yearly earning capacity formula.

The "Average Yearly Earnings Formula" provides, in part, as follows:

The WCB may use the average yearly earnings formula to calculate average earnings when a worker has an irregular earnings pattern due the nature of their work (e.g. seasonal worker, contract worker, pieceworker, or fluctuating overtime).

Average yearly earnings include any verifiable remuneration that the worker received as a result of employment and employment insurance benefits...

To determine a worker's average earnings under this formula, the WCB will generally use documented employment data from any consecutive 12-month period occurring during the one or two years before the date of the accident. The WCB may choose one or more consecutive 12-month periods from any of the previous five calendar years if the WCB is of the view that doing so would produce a more accurate reflection of the worker's employment and earnings pattern before the accident.

Worker's Position

The worker was self-represented and participated in the hearing by teleconference. The worker's position with respect to the two issues was that the WCB incorrectly calculated their average earnings by failing to include additional employment income; and that they are entitled to physiotherapy treatment which was required and should have been approved as a result of their injury and surgery.

With respect to the average earnings issue, the worker noted the WCB had advised they used CRA information. The worker stated they provided the WCB with their 2019 Notice of reassessment from the CRA, which showed their 2019 total income was $69,695.00, but the WCB calculated their average earnings rate based on a much lower total income of $26, 591.00.

The worker submitted they gave the WCB all the information they had and all the information the WCB needed. They provided their T4 forms. Where there were no T4s, they also provided emails and paperwork from the companies they were working for as proof of the work they did. In spite of that, the WCB made no change to their average earnings rate.

The worker submitted that their 2019 Notice of reassessment was all the WCB needed. The worker questioned why they would have reported that income and paid taxes on it if they did not make the reported and assessed earnings. They submitted that signing a release authorizing the WCB to obtain CRA information would do absolutely nothing; it would not tell the WCB anything different from what was in the Notice of reassessment.

The worker further noted they had provided the WCB with a Record of Employment ("ROE") for work with a start date of November 20, 2018, being one year and 2 days before the workplace accident. The worker submitted that the WCB should also have included most of the income referred to in the ROE in the average earnings calculation as income earned within the one-year period prior to their injury.

With respect to the second issue, concerning the entitlement to benefits beyond February 17, 2021, the worker submitted that even though they required physiotherapy treatment, the WCB denied any entitlement to same. The worker stated that anyone who undergoes surgery as they did is going to need physiotherapy afterwards to get back to normal. The worker noted three different doctors sent letters to the WCB recommending physiotherapy, but it was denied every time. The worker said their right leg is still the same, they get pain shooting up the leg, from the groin to the knee, on a daily basis. The worker submitted the WCB should have just approved their physiotherapy in the first place, when their claim was approved, and they could have been back working.

Employer's Position

The employer did not participate in the appeal.

Analysis

Issue 1: Whether or not the worker's average earnings have been calculated correctly.

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the calculation of the worker's average earnings is incorrect and additional earnings should have been included in that calculation. For the reasons that follow, the panel is unable to make that finding.

The WCB has calculated the worker's average earnings based on the average yearly earnings formula. There has been no suggestion that the average yearly earnings formula was not the appropriate formula to apply in the circumstances of this case.

Applying that formula, the WCB has calculated the worker's average earnings to be $26,591.00 based on amounts reported in the worker's 2019 Income Tax Return and the T4s issued for that year and verified through the 2019 Notice of reassessment. Further income in the amount of $43,104.00 which was identified in the 2019 Income Tax Return as "Other employment income," was not supported by T4s and was not included in the calculation of the worker's average earnings.

The worker confirmed at the hearing that the crux of their position with respect to this issue was that the WCB would not include the sum of $43,104.00 which is listed in their 2019 Income Tax Return as "Other employment income" in the WCB's calculation of their average earnings income.

The worker provided emails and other documents to support their position that the additional sum of $43,104.00 should be included in the average earnings. The WCB advised that they did not have enough information in this regard and required detailed copies of the worker's Income Tax Return once assessed, to determine the breakdown and source or type of income which was included in the sum of $43,104.00.

While the worker later also provided their Notice of reassessment for 2019, the Notice did not provide detailed information with respect to the sources or type of employment income that was included in the sum of $43,104.00. The WCB therefore advised that they were unable to determine whether all or part of that sum should be included in the average earning calculation.

The panel carefully questioned the worker at the hearing with respect to the nature and source of the work that was included in the sum of $43,104.00.

Information which the worker had previously provided to the WCB included emails and a Release to be signed by the worker with respect to the sum of $9,650.00, which the worker advised was part of $43,104.00 listed in the Income Tax Return. The Release was in respect of an out of province project and indicated it represented "full payment for the [worker's] performance of labour and materials or other services..." The WCB responded that this was too general and additional information was needed to be able to verify the full amount of $9,650.00 or part of that amount as employment earnings. Information provided indicated the money was paid and the Release was provided to keep the worker from filing a lien on the project, and the worker indicated at the hearing that the Release had nothing to do with how much money they were making on the project.

The worker further advised at the hearing that the remainder of the $43,104.00 amount consisted of approximately $20,000.00 relating to the out of province project, and the rest of that amount was with respect to two jobs back in their home province. The worker said there was no contract with respect to the out of province project (other than the Release with respect to the lien), and advised they did piecework and were an employee on that project, and not an independent contractor. With respect to the two jobs back in their home province, the worker stated "I did my own stuff." In the circumstances, the panel is not satisfied that the evidence is sufficient to establish that all or part of the $43,104.00 "Other employment income" should have been included in the average earnings calculation.

The worker had also provided the WCB with an ROE dated January 1, 2019 which indicated a start date with respect to that work of November 20, 2018 and last date paid of January 5, 2019, with total insurable earnings of $13,707.00. While the worker argued that part of the work performed for that employer in 2018 should be included in the average earnings calculation, the panel notes that no Income Tax Return or Notice of Assessment was provided to the WCB and the worker would not authorize the WCB to seek such information from the CRA. Based on the evidence which is before us, the panel is of the view that there was insufficient detail available with respect to such earnings.

When asked at the hearing why they would not authorize the WCB obtaining any information directly from CRA, the worker stated:

Because everything that I've done for them so far, they just shot me in the leg. They wanted my doctor's information. I released all that with the letters requesting that he need physio. Did I get physio in three years? No, I didn't. Why am I going to do anything else for him? What is it going to do for me?..They just want more information so they can keep denying things.

The worker also argued that signing the letter authorizing the release of CRA information to the WCB would do absolutely nothing. The panel does not accept that explanation. The panel notes that while the worker has made numerous allegations, they have failed to provide sufficient information as requested to verify their claims.

Following the hearing, the appeal panel requested that the worker provide a release authorizing the CRA to provide The Appeal Commission with copies of their complete income tax returns and other taxpayer information including all supporting information slips, schedules and financial statements for the two taxation years prior to and including the year of 2019 and each subsequent year for which benefits had been provided. The worker declined that request, advising that they were not releasing any more information.

In the circumstances, based on our review of all of the evidence which is before us, on file and as presented at the hearing and provided subsequent to the hearing at our request, the panel is unable to find that the calculation of the worker's average earnings is incorrect. The panel therefore finds that the worker's average earnings have been calculated correctly based on the available information.

The worker's appeal on this issue is dismissed.

Issue 2: Whether or not the worker is entitled to further benefits after February 17, 2021.

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 and/or required medical aid beyond February 17, 2021 as a result of their November 22, 2019 workplace accident and injury. The panel is unable to make that finding, for the reasons that follow.

The worker's claim has been accepted for a right knee injury. Arthroscopic surgery was performed on December 24, 2020. On August 3, 2022, the WCB medical advisor advised that the surgery for treatment of the right knee medial meniscal tear was acceptable, but any other treatment directed at the worker's right knee, including in relation to the arthroscopically identified osteoarthritis of the right knee medial compartment would not be related to the compensable injury.

At the hearing, the worker focused on a need for physiotherapy treatment. When asked what they believed they required physiotherapy for, the worker stated that:

It's because of my leg being bound a certain way for over a year, and then getting surgery and not getting any treatment for it. It's plain and simple. There's not red, white, black or blue about this. After surgery, you get physio to get your body back to where it was. In any surgery, that happens. Plain and simple. I got three requests sent in to WCB, for physio, that was denied every time.

The panel is unable to find that the medical information supports the worker continued to suffer from their compensable right knee injury or required physiotherapy treatment beyond February 17, 2021. The medical information shows that two surgeons have noted the worker has a problem but have not said whether the problem is of a degenerative nature or a failed repair of the medial meniscus tear. In their November 15, 2021 report, one of the orthopedic surgeons recommended the MRI be repeated "to ensure that the meniscal pathology has been appropriately addressed…and help clarify the extent of arthritic changes," noting that "I need to clarify [the worker's] diagnosis." In a subsequent report dated October 20, 2022, another orthopedic specialist wrote that they did not know the status of the pending MRI "…but I do not think it is going to change the treatment…The treatment should be conservative…" The specialist went on to suggest that in any event, the worker needed a more aggressive physiotherapy approach and provided the worker with a physiotherapy referral.

At the hearing, the worker stated that the pain is not in their right knee, but in the muscles above the knee, from about two inches above the knee to the groin. When it was put to the worker that this was different from the orthopedic specialist's report in their October 20, 2022 letter that the worker was having some ongoing problems in the knee, the worker said "it was a totally different conversation" when he saw the specialist.

In response to questions from the panel, the worker stated that the surgery seemed to have helped but there is still a problem. When asked if it was fair to say that the knee was better but they had never recovered to 100%, the worker said the knee was not bad, but was not back to where it was before the injury.

Following the hearing, the panel requested and the worker was provided with additional medical information from the treating family physician and orthopedic surgeons. The panel reviewed the information provided, but is unable to find that it supports that the worker did not recover from their surgery or that the injury or surgery was causing the worker's ongoing issues.

While the worker argued that physiotherapy treatment might have been beneficial following surgery for the compensable injury, the panel is unable to find that the evidence supports such treatment is necessary to cure or provide relief in relation to the compensable injury or surgery at this point, more than three years after the accident and two years after the surgery.

When it was put to the worker at the hearing that it seemed they had issues with more than just physiotherapy, the worker responded "How do we know if I didn't receive it after my surgery? and "...maybe if I had physio back in 2020, maybe we wouldn't be having this conversation" and they'd be out working.

Based on the foregoing, the panel is unable to find, on a balance of probabilities, that the worker suffered a loss of earning capacity or required medical aid beyond February 17, 2021 as a result of their November 22, 2019 workplace accident and injury. The worker is therefore not entitled to further benefits after February 17, 2021.

The worker's appeal on this issue is dismissed.

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 21st day of November, 2023