The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to benefits after July 1, 2021. A hearing was held on June 20, 2024 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after July 1, 2021.

Decision

The worker is entitled to benefits after July 1, 2021.

Background

The worker submitted a Worker Incident Report to the WCB on November 27, 2020, reporting they developed COVID-19 after being exposed at work on November 18, 2020. The worker reported they worked at two locations with multiple cases of COVID-19 and while at work, wore personal protective equipment (“PPE”) in the form of a facemask, gloves, and a gown. The worker described symptoms of coughing and severe weakness, that worsened since the symptoms began. The worker confirmed that after testing on November 20, 2020, they received positive test results on November 22, 2020. The employer provided an Employer’s Accident Report to the WCB on December 1, 2020, confirming the worker reported the incident on November 19, 2020 and notified them of a positive COVID-19 testing result on November 22, 2020.

When the WCB contacted the worker on December 3, 2020 the worker confirmed they noted coughing and weakness on November 19, 2020 and called in sick that day, with testing the next day. When they were advised of the positive test result, the worker isolated themself for 10 days, and returned to work on November 30, 2020. The worker advised that their job duties involved helping individuals with personal care, in close proximity, some of whom were not masked, and that they believed that they contracted COVID-19 through this contact. The worker described current symptoms of coughing, fatigue, and no sense of smell. On December 8, 2020, the WCB accepted the worker's claim and began providing benefits.

The worker contacted the WCB on December 8, 2020 with a status update, advising they continued to experience muscle fatigue, significant coughing throughout the day, including waking them up at night, chest heaviness, significant weakness and feeling faint, dizzy, or weak if they stand for too long. They advised of an upcoming telephone assessment with their family physician. On December 16, 2020, the treating family physician recorded the worker's complaints of shortness of breath with minimal talking due to having COVID-19 and placed the worker off work.

In conversations with the WCB on December 17, 2020 and December 30, 2020, the worker noted ongoing shortness of breath and weakness. On January 11, 2021, the WCB received reports from the treating family physician relating to appointments on December 23, 2020, January 5, 2021, and January 9, 2021. In each report, the physician noted the worker's ongoing complaints of shortness of breath and weakness, and the January 9, 2021 report indicated gradual but slow improvement. On January 14, 2021, the worker advised the WCB of their daily headaches, ongoing shortness of breath and chest pain, which increased with activity and fatigue. On January 26, 2021, the treating physician noted the worker's "very slow" recovery and reported the worker was a "long hauler recovery from covid" with continued shortness of breath, exhaustion, and chest pain.

At a March 9, 2021 appointment, the treating family physician recommended the worker attend physiotherapy to address their dizziness. The physician’s report noted the worker’s headaches, dizziness, shortness of breath and new findings of bright lights affecting their "meningism like" problems.

Upon initial assessment on March 17, 2021, the physiotherapist recorded the worker’s report of head pain, fatigue, nausea, and dizziness and provided a diagnosis of possible bilateral vestibular dysfunction based on findings of decreased balance and increased fatigue. The physiotherapist recommended vestibular physiotherapy.

A WCB medical advisor reviewed the worker's file on May 18, 2021 and noted the natural history of acute mild to moderate COVID-19 infections was "poorly understood" with limited information on "…prevalence, duration, underlying causes, and effective management strategies for those with symptoms past 4 weeks diagnosis." The medical advisor noted the medical reports on file did not include objective physical findings on examination, except for the March 17, 2021 physiotherapist report and as such, there was no specific medical diagnosis for the worker's current difficulties.

The WCB contacted the worker on June 18, 2021 and the treating physician on June 22, 2021 to gather further information. On June 22, 2021, the WCB advised the worker their entitlement to benefits would end as of July 1, 2021 as it determined the worker was recovered from the workplace injury.

On July 9, 2021, the worker requested Review Office reconsider the WCB's decision, noting they were not recovered from the COVID-19 infection, but continued to experience chronic fatigue, shortness of breath, muscle aches, headaches, and brain fog. In conversation with the WCB on August 13, 2021, the worker advised they had attended a clinic for ongoing care regarding their COVID-19 symptoms.

On August 20, 2021, the WCB received a Physiotherapy Initial Report relating to the worker's attendance at the COVID clinic on August 9, 2021. In the report, the treating physiotherapist outlined testing results and recommended additional testing and treatment, with a diagnosis of Post-COVID viral fatigue syndrome, long haul COVID/long COVID and possible dysautonomia. The therapist noted that due to the severity of the worker's symptoms, they may be off work for a prolonged period.

On August 26, 2021, the employer's representative provided a submission in support of the WCB's decision to end the worker's entitlement to benefits. On September 23, 2021, the worker provided Review Office with a list of the medical appointments since December 2020. On September 28, 2021, the worker requested to withdraw their request for reconsideration pending receipt of further medical information. The worker again requested reconsideration by Review Office on April 1, 2022, noting they continued to experience symptoms including chronic fatigue, shortness of breath, muscle aches, headaches, pressure in their head and brain fog. The employer's representative advised Review Office on April 27, 2022 they would be relying on their August 26, 2021 submission.

On May 25, 2022, Review Office determined the worker was not entitled to benefits after July 1, 2021. Review Office relied upon the opinions of the WCB medical advisor and found that the medical evidence did not support a relationship between the worker's current difficulties and their development of COVID-19 symptoms.

The worker submitted additional medical information and on February 16, 2023, requested Review Office reconsider the previous decision. The information provided included medical reports submitted to the worker's disability insurer dated between April 27, 2021 and August 8, 2022, and an August 5, 2022 report from the COVID clinic noting the worker participated in a reconditioning program for 9 weeks from May 30, 2022 to August 4, 2022. The clinic report outlined that on completion of the program, the worker was capable of returning to a sedentary position and could perform "…small amounts of either physical or cognitive activity (i.e. 15 min - 1 hour depending on the difficulty of the task) followed by a rest break (the more demanding the activity the longer the rest break)" and recommended a gradual return to work to slowly build the worker's endurance.

At the request of Review Office, the new medical information was reviewed by a WCB medical advisor on April 20, 2023. The medical advisor stated the testing indicated "…some gait, range of motion, strength, and mobility issues, and some limitations in 6-minute walk test distances (with normal oxygen levels) …" which the advisor opined were more consistent with the worker's pre-existing conditions including hypertension and neuralgic pain and headaches. The WCB medical advisor concluded the worker's current symptoms could not be related to their COVID-19 infection in November 2020.

On May 8, 2023, Review Office determined the worker was not entitled to benefits after July 1, 2021, relying upon the WCB medical advisor’s opinion that the medical evidence did not support a connection between the worker's current symptoms and their infection in November 2020.

The worker's representative filed an appeal with the Appeal Commission on February 2, 2024 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 representation by a worker advisor, who made an oral submission in support of the worker’s appeal. The worker offered testimony through answering questions posed to them by the worker advisor and by members of the appeal panel.

The worker’s position is that the evidence does not support the WCB’s determination that they were recovered from the effects of COVID-19 by July 1, 2021, but rather indicates they continued to experience persistent symptoms after that date, and to require additional treatment in relation to those symptoms. Further, the evidence confirms the worker was not capable of returning to work with the employer by July 1, 2021 as a result of their continuing compensable condition.

The worker advisor reviewed the medical reporting and noted that the WCB medical advisor did not at any time provide an opinion that the worker was recovered by July 1, 2021 but rather stated initially that there was no objective evidence of a diagnosis at that time.

The worker advisor reviewed the findings from the testing of the worker undertaken in the COVID clinic in August 2021, after referral from the worker’s treating physician in July 2021, submitting that those findings and the assessment report indicate the worker’s need for further treatment, which the WCB did not support. The worker advisor noted that in September 2021, the WCB medical advisor dismissed the testing results as lacking objective findings and as not indicating any diagnosis, and that in April 2023, the WCB medical advisor concluded that the worker’s ongoing symptoms were more likely related to the worker’s pre-existing conditions. The worker advisor noted there is no evidence that the worker’s pre-existing health conditions in any way limited their ability to continue working nor that they required any significant treatment in relation to those conditions.

The worker testified that prior to contracting COVID-19, they worked part-time with the employer, averaging 20-30 hours weekly, and worked another full-time job with a different employer. The worker also testified to the reduction in their ability to complete household tasks and provide support to a family member as a result of their ongoing symptoms since November 2020.

Employer’s Position

The employer did not participate in the appeal.

Analysis

In this appeal from the Review Office’s decision that the worker is not entitled to benefits after July 1, 2021, the panel must decide if there is evidence that the worker continued to sustain a loss of earning capacity or that the worker required further medical aid in relation to the compensable workplace injury beyond July 1, 2021. As detailed in the reasons that follow, the panel was able to make such findings and therefore, the worker’s appeal is granted.

In considering whether the worker is entitled to further benefits, the panel reviewed the evidence to whether it supports a finding that the worker recovered from the compensable injury by July 1, 2021, when the WCB determined that they were no longer entitled to benefits. The medical reporting from the date of accident through July 2021 indicates that the worker continued to report symptoms including loss of taste and smell, shortness of breath, fatigue, insomnia, and memory deficits. In July 2021, the treating family physician , who treated the worker throughout the claim, referred the worker to a COVID clinic for assessment, which took place in early August, 2021. By that point, despite the physician’s reporting and a recommendation for vestibular physiotherapy, the WCB medical advisor had concluded in May 2021 that the worker’s ongoing symptoms were not related to their diagnosis of COVID-19.

The panel also reviewed the August 9, 2021 assessment report and Physiotherapy Initial Report from the Post-COVID clinic physiotherapist which indicated a diagnosis of “Post COVID Long Haul” based upon the worker’s subjective reporting of symptoms as noted above, and various testing measures outlined in the report. We note that the WCB medical advisor reviewed the report findings on September 8, 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”, confirming their prior opinion.

In this regard, the panel acknowledges that the evidence of non-recovery includes the worker’s subjective reports but note that those reports are supported by the reporting of the treating and assessing medical professionals. We do not agree that the worker’s diagnosis must be objectively validated to entitle them 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.

The panel noted the absence of any evidence that the worker was recovered to their pre-accident baseline by July 2021. 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 July 2021. Rather, the evidence supports the worker’s position that they continued to experience symptoms related to their compensable COVID-19 diagnosis well-past July 2021, and that further treatment was recommended in relation to that diagnosis.

Further, the panel noted the evidence that while the worker has a number of concurrent and pre-existing health conditions, there is no evidence that those conditions negatively impacted the worker’s ability to work at their part-time employment, in addition to full-time concurrent employment prior to contracting COVID-19, but there is evidence that after contracting COVID-19, the worker was not capable of a return to their pre-accident employment by July 1, 2021.

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 July 1, 2021 such that they continued to sustain a loss of earning capacity and to require treatment in relation to the compensable diagnosis after that date. Therefore, the worker is entitled to benefits after July 1, 2021. The worker’s appeal is granted.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 26th day of July, 2024