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 further physiotherapy treatment; and 

2. They are not entitled to wage loss benefits after February 15, 2023.

A videoconference hearing was held on January 24, 2024 to consider the worker's appeal.

Issue

1. Whether or not the worker is entitled to further physiotherapy treatment; and 

2. Whether or not the worker is entitled to wage loss benefits after February 15, 2023.

Decision

1. The worker is entitled to further physiotherapy treatment; and 

2. The worker is entitled to wage loss benefits after February 15, 2023.

Background

The employer provided an Employer’s Accident Report to the WCB on January 24, 2023 reporting the worker injured their neck, back and head in an incident at work on January 19, 2023, which was reported to the employer on January 23, 2023. The employer reported the worker slipped and fell outside while at work.

When the WCB contacted the worker on January 27, 2023, the worker confirmed they were outside “…took a step backwards and just slipped on the snow…”, falling onto their back and buttocks. The worker stated they did not hit their head but jarred their neck and advised that after the incident, they felt stiff but were able to continue working, with increasing pain and symptoms. The worker reported that the next day, they were barely able to move their neck and had a headache on waking. The worker called in sick to work and self-treated with ice, heat, and pain medication, before seeking medical treatment on January 23, 2023. The worker noted the treating physician diagnosed whiplash and recommended physiotherapy and massage. The worker advised they returned to work on January 23, 2023, only missing January 20, 2023, and performed regular job duties, but did so more slowly than normal, requesting help from others as needed. The worker described current symptoms of stiffness in their back and neck and feeling okay to walk but unable to sit for too long.

On January 27, 2023, the WCB received a Doctor’s First report for the worker’s appointment on January 23, 2023, indicating the worker reported to the physician that they “slipped on ice at work, landed on bum” and complained of a sore neck, headache, and occasional blurred vision. The physician noted a normal neurological examination, with the left lateral side of the worker’s neck a “bit tight” and decreased range of motion on turning their neck to the left, but a normal gait. The physician recorded a diagnosis of neck pain and queried whiplash. The physician recommended physiotherapy and massage therapy, as well as application of heat and topical non-steroidal anti-inflammatory medication.

On February 1, 2023, the worker attended an initial physiotherapy assessment reporting a slip and fall with resulting decreased range of motion, blurry vision, headaches, and difficulty sleeping. The treating physiotherapist diagnosed whiplash associated disorder (“WAD”).

The worker provided a Worker Incident Report to the WCB on February 1, 2023 confirming the mechanism of injury described and noting they did not hit their head and felt sore the day after the fall. The WCB accepted the worker’s claim and began providing benefits to the worker.

On February 8, 2023, the treating physiotherapist contacted the WCB to advise they believed the worker was exhibiting concussive symptoms and recommended the worker attend their family physician for further treatment. The worker saw the treating family physician on February 15, 2023, who noted the worker did not have a “…lesion, swelling, bump to the head” but reported ongoing pain to their neck, slight blurred vision, and sensitivity to light. The physician noted tightness in the upper part of the worker’s neck and slight tenderness to palpation, with normal neurological and muscle strength examinations, and provided a diagnosis of neck injury with a query as to concussion. The physician advised the worker to monitor for signs and symptoms of a concussion and placed them off work.

When the WCB contacted the worker on February 22, 2023, the worker advised that on recommendation of the physiotherapist, they returned to see their family physician as they had continued bad headaches, occasional blurry vision, and tightness in their neck. The worker noted the physician advised they did not have a concussion but needed to rest and placed them off work for two weeks until March 2, 2023. The WCB advised it would review the worker’s claim as they had been working regular duties since the accident but now required time off work.

On February 23, 2023, the employer advised the WCB that, other than time for medical appointments, the worker was continuing their regular duties. The supervisors confirmed they observed the worker struggling with pain since the incident and noted the worker was having difficulty staying at work throughout their shift. The worker advised the WCB on March 1, 2023 that they continued to experience headaches, tightness in their neck and blurred vision, and that the treating physiotherapist recommended another week off work. The worker advised they saw an optometrist who advised their vision could have been impacted by whiplash but did not note any concerns with the worker’s vision.

The worker attended physiotherapy on March 13, 2023 reporting extreme fatigue, and the physiotherapist recorded ongoing difficulties and recommended the worker work half-days for two weeks. On March 14, 2023, the WCB advised the employer of this restriction. At follow-up on April 10, 2023, the worker reported ongoing symptoms, and the treating physiotherapist recommended the worker continue working half-days for another two weeks.

The WCB arranged a call-in examination of the worker for April 26, 2023. The medical advisor concluded the worker's diagnosis in relation to the workplace accident was neck strain with an element of a low back strain. The medical advisor noted the worker did not report any low back complaints initially, with full lumbar spine range of motion and pain with left side flexion on February 1, 2023 at initial physiotherapy assessment. As such, it was likely the low back strain would have been minor in nature, with a natural history of recovery over a period of a few weeks. On examining the worker, the medical advisor noted no significant findings except a slight decrease in cervical spine extension, which they found was not "…medically accounted for in relation to a fall onto the buttocks", noting as well the February 15, 2023 chart note indicating the cervical spine active range of motion as within normal limits. The WCB medical advisor concluded there was no need for any work-related restrictions and recommended the worker consult their treating physician regarding their reported fatigue as it was not medically accounted for in relation to the workplace accident.

On May 31, 2023, the WCB advised the worker that they were not entitled to wage loss benefits after February 15, 2023. On June 8, 2023, the WCB advised the treating physiotherapist that the worker was not entitled to further physiotherapy treatment.

The treating physiotherapist wrote to the WCB on June 14, 2023 advising the worker continued to experience low back difficulties and required further treatment. The WCB reviewed the information provided and on June 19, 2023, advised the worker that its decision remained unchanged. On July 4, 2023, the treating physiotherapist submitted copies of various reports for the WCB’s review and consideration. On July 7, 2023, the WCB advised the worker that upon review of the information, there was no change to the earlier decision they were not entitled to wage loss benefits after February 15, 2023 and they were not entitled to further physiotherapy treatment.

On July 19, 2023, the worker requested Review Office reconsider the WCB's decisions, submitting that they were not recovered from their workplace injury and required further wage loss and physiotherapy treatment. Review Office determined, on August 31, 2023, that the worker was not entitled to wage loss benefits after February 15, 2023 and was not entitled to further physiotherapy treatment. The worker filed an appeal with the Appeal Commission on September 26, 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.

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 their loss of earning capacity resulting from the accident on any working day after the day of the accident, but no wage loss benefits are payable where the injury does not result in a 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, as determined by the WCB, or the worker attains the age of 65 years. Section 27 of the Act allows the WCB to provide “…any medical aid the board considers necessary or advisable to cure or give relief to the worker or for the rehabilitation of the worker” and confirms that the WCB may determine the necessity and nature of any medical aid provided.

Worker’s Position

The worker appeared on their own behalf, providing an oral submission, and offering testimony in response to questions posed by the appeal panel.

The worker’s position is that they are entitled to additional wage loss benefits after February 15, 2023 as they continued to have a loss of earnings after that date as a result of the injury sustained in the accident of January 19, 2023, and further, that they are entitled to further physiotherapy treatment in relation to the effects of that injury.

The worker described to the panel that after February 15, 2023 they continued to experience symptoms that they related to the accident and that those symptoms increased with activity. The worker described continuing with treatment until the WCB discontinued coverage, including acupuncture and dry-needling, massage, and physiotherapy. The worker stated that they took time off at the recommendation of their treating medical providers.

On questioning by members of the appeal panel, the worker described feeling approximately 75% recovered from their injuries, with continuing symptoms in their left leg including tingling and numbness, especially with an increase in activity. The worker noted that they continue to limit their activities outside of work and that their term employment with the employer ended in June 2023, but they have continued to work with that employer on a casual basis since then.

The worker described to the panel, in response to questioning, their continuing symptoms and treatment received after February 15, 2023, and noted that they did not work from February 15 – March 9, 2023 and returned to work with restrictions at that time which included reduced hours of work, working only half-days until the end of April 2023.

Employer’s Position

The employer was represented in the hearing by its secretary-treasurer, who made an oral submission on behalf of the employer, and by its human resources coordinator.

The employer did not take any position in respect of the issues on appeal, but its representatives indicated they were present to support their employee and to confirm the information regarding the worker as set out in the WCB claim file. The employer’s representatives stated, in response to panel questions, that the worker returned to full regular duties as of May 1, 2023.

Analysis

The appeal panel considered whether the worker is entitled to additional wage loss benefits after February 15, 2023 and whether the worker is entitled to further physiotherapy in relation to the injuries sustained in the compensable workplace accident of January 19, 2023. For the worker’s appeal to succeed on the first question, the panel would have to determine that the worker continued to sustain a loss of earning capacity after February 15, 2023 as a result of the injuries sustained in the workplace accident. For the appeal to succeed on the second question, the panel would have to find that the worker required further physiotherapy to cure or give relief to the worker from the compensable injuries. As detailed in the reasons that follow, the panel was able to make such findings and therefore the worker’s appeal is granted in respect of both questions before the panel.

The panel reviewed and considered the medical reporting following the worker’s compensable injury on January 19, 2023. We noted that the treating physician initially diagnosed neck pain and queried a diagnosis of whiplash on January 23, 2023, and that on initial assessment on February 1, 2023, the physiotherapist offered a diagnosis of whiplash associated disorder (“WAD”) with a recommendation for treatment over the subsequent 6 weeks. On February 15, 2023, the worker again sought medical treatment, reporting continued neck tightness and pain, blurred vision, and sensitivity to light. At that time, the treating nurse practitioner queried a diagnosis of concussion and provided a sick note and information on monitoring for concussion symptoms. The treating physiotherapist noted on March 13, 2023 that the worker should return to work at half-days for the next two weeks, based on clinical findings that included continuing stiffness in certain movements of the cervical spine, and the worker’s report of extreme fatigue. On April 10, 2023, the treating physiotherapist noted the worker’s headaches and vision issues were improving, with less fatigue and improved cervical spine movement. At that time, a home program was provided, along with a recommendation that the worker continue to work reduced hours for the next two weeks.

The panel also reviewed the WCB call-in examination findings and report from April 26, 2023, and noted that the worker reported continuing neck stiffness and pain, with headache at that time. The worker also reported low back symptoms since the accident. The WCB medical advisor noted full range of motion in the worker’s cervical spine except for some reduction in extension, with full range motion in both shoulders and the worker’s lumbar spine, and some tenderness to palpation over the lateral and posterior neck regions. Based on the examination findings and medical reporting, the medical advisor concluded the diagnosis arising from the workplace accident was a neck strain with a “possible element of low back strain” that was resolved by the time of the initial physiotherapy assessment. No further restrictions were recommended at that time.

With respect to the request for additional physiotherapy, the panel noted the treating physiotherapist’s request of May 23, 2023 outlined the need for treatment one to two times weekly for four weeks with the rationale that the worker required manual treatment and dry needling that would not be part of the home program already provided. The panel noted that the worker stated they found this treatment to be beneficial in addition to the home exercises, and that the WCB physiotherapy advisor declined this request on the basis that “most of the stretches and strengthening exercises can be done at home.”

The panel considered that at the time the WCB determined the worker was not entitled to further wage loss benefits, the worker had just completed two weeks of the recommended six weeks of physiotherapy, with both the treating physiotherapist and nurse practitioner recommending the worker remain off work until mid-March, 2023 at which time the physiotherapist recommended a return to work with limited hours. The worker, who continued to report symptoms at that time, followed the advice of their treatment providers and remained off work until March 13, 2023 when they returned to work, on half-days and gradually increased their hours over the course of the subsequent months according to the instructions of their treating physiotherapist. The panel also noted that the WCB provided restrictions to the employer on March 14, 2023 in relation to the worker’s compensable injury, outlining that the worker was to return to work at half-days for two weeks and that the evidence confirms the worker returned to work on reduced hours and did not resume their regular hours until months later.

Regarding the request for further physiotherapy, the panel finds the treating physiotherapist’s recommendations for additional treatment were limited in scope to treatment modalities that the worker could not undertake as part of a home-based program and were also of limited duration to build upon the benefit to the worker and progress made to that point. We accept the worker’s testimony that they found these treatment modalities to be helpful. As such, we do not agree with the WCB’s decision and find that the evidence does demonstrate a need for further physiotherapy in relation to the compensable workplace injury.

The panel is satisfied that the evidence supports a finding that the worker continued to sustain a loss of earning capacity beyond February 15, 2023 because of the workplace injury sustained on January 19, 2023, and that the worker required further physiotherapy for their compensable workplace injury after May 23, 2023 as recommended by the treating physiotherapist.

Based on the evidence before the panel, and on the standard of a balance of probabilities, we find that the worker is entitled to further physiotherapy treatment and that the worker is entitled to wage loss benefits after February 15, 2023. The worker’s appeal is therefore granted in respect of both questions.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 8th day of March, 2024