The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker appealed the Workers Compensation Board ("WCB") decision that they are not entitled to benefits after May 4, 2018 in relation to the June 15, 2017 accident. A hearing took place on February 18, 2025 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after May 4, 2018 in relation to the June 15, 2017 accident.

Decision

The worker is entitled to benefits after May 4, 2018 in relation to the June 15, 2017 accident.

Background

On June 19, 2017, the worker submitted a Worker Incident Report to the WCB outlining that while stepping off the back of a truck on June 15, 2017, they injured their left knee and leg. The worker reported seeking medical treatment the same day and that they were placed off work until June 21, 2017. The Employer's Incident Report provided to the WCB the same day confirmed the worker's reported injury to their left knee.

The WCB received a report from the treating physician on June 16, 2017, indicating the worker’s report of injury to their left knee while stepping down from a truck at work, with complaints of pain to the anterior knee inferior to the patella and associated pain to the posterior knee, radiating to the distal hamstring. The physician recorded their clinical findings of tenderness to the posterior left knee and pain-limited flexion of the knee but no swelling and diagnosed a left knee posterior capsular sprain.

The worker confirmed to the WCB on June 20, 2017 how the injury occurred and that they heard a "pop" in their left knee at the time of the incident, with immediate pain. The worker reported that they continued working, but because the left knee pain continued, they soon left work to seek medical treatment. The worker described current symptoms of shooting pain from the back of their thigh into their buttock area, radiating into their calf and an inability to climb stairs. The worker sought further medical attention that day, reporting medial pain to the left knee. The treating physician recorded findings of full knee flexion and extension with increased pain to the medial joint line and queried a medial meniscus tear. The physician recommended an MRI study and placed the worker off work until July 4, 2017. The WCB accepted the worker's claim on June 22, 2017.

A left knee MRI study of July 6, 2017 indicated a non-displaced medial tibial plateau fracture. On July 16, 2017, the treating physician recommended the worker remain off work until August 15, 2017. At follow-up on August 11, 2017, the physician noted the worker’s persistent left knee pain that limited their work and sitting tolerance, recommended the worker remain off work, and referred them to physiotherapy. At the physiotherapy assessment on August 15, 2017, the worker reported difficulty with walking and numbness/aching down their left leg while sitting. The treating physiotherapist noted decreased range of motion, positive compression testing and an antalgic gait and outlined their diagnosis of left medial tibial plateau fracture.

On following up with their physician on September 22, 2017, the worker reported whole left leg pain from lumbar region to thigh, including calf and ankle pain, limited walking capacity, and left ankle pain. The physician found no swelling in the left knee and full range of motion, full range of motion in the worker's left hip, tenderness in the left piriformis area and normal straight leg raise testing. The physician updated their diagnosis to left sacroiliac dysfunction and piriformis related sciatica and recommended a lumbar spine MRI study and continuing physiotherapy. At physiotherapy on October 3, 2017, the physiotherapist updated their treating diagnosis to a low back/hip injury, noting the worker's continuing complaints of left knee soreness, painful walking, inability to do stairs and numbness and tingling down their leg.

On October 14, 2017, the worker underwent an MRI study of their left ankle and lumbar spine. With respect to their ankle, the study indicated "Minimal bone marrow edema as well as irregularity at the anterior aspect of the medial malleolus. There is what appears to be a fracture line in this location and the findings are favored to represent a subacute to chronic fracture." The lumbar MRI indicated mild degenerative disc disease in the lower lumbar spine, and no evidence of significant central canal stenosis, nerve root impingement or foraminal narrowing. On November 7, 2017, the treating physician reviewed the MRI study and noted the worker's complaints of ongoing pain in the left lumbar, knee and ankle areas, untreated with physiotherapy and findings of antalgic gait and left leg atrophy. The physician noted uncertainty as to the worker's diagnosis and lack of response to treatment and referred them to a neurologist for further investigation.

After a WCB call-in examination on November 7, 2017, the WCB medical advisor noted their examination "…findings were mainly localized to the knee: atrophy, weakness, stable ligaments, negative meniscus tests, positive patellofemoral tests, and some tenderness to the medial tibial plateau" and recommended a follow-up left knee MRI study to determine if there were structural abnormalities, and further treatment as indicated based on those findings. The medical advisor also noted the worker would not be considered as totally disabled but could take on sedentary duties, with the ability to get up and stretch as necessary until the MRI results were available.

The WCB advised the employer of these restrictions on November 21, 2017, and the employer confirmed on December 5, 2017 that it could not accommodate the worker’s restrictions.

The follow-up MRI study of December 6, 2017 indicated the fracture had "…healed without deformity or residual edema." The WCB advised the worker on January 2, 2018 that the MRI findings were reviewed by a WCB medical advisor who contacted the treating family physician to recommend a reconditioning program, with an active treatment plan to help with their recovery and return to work.

On January 4, 2018, the treating physician noted the worker's complaints of ongoing pain in their left leg up to their left buttock, worsening toward the end of the day and with prolonged sitting and lying down, and that an electrodiagnostic study was scheduled with a neurologist on January 11, 2018. On examination, the physician found no redness or swelling to their left knee, no pain on extension or flexion, pain around the medial collateral ligament and around the gluteus muscle at the worker's left hip/buttock area, no pain with abduction and adduction of the left hip but pain with flexion and pain to the lateral foot and with range of motion testing of the worker's left ankle. The treating physician recommended waiting for the results of the January 11, 2018 test to discuss the worker's ability to return to work.

The WCB received the January 11, 2018 nerve conduction study and report from the treating neurologist, which outlined that testing indicated neuropathy in the infrapatellar branch and saphenous nerve in the worker's left knee but that they advised the worker that there was no motor involvement of this nerve, and it should not contribute to any weakness or instability. The neurologist noted the worker may experience spontaneous recovery of the neuropathy with time or the worker may be left with a residual patch of numbness over the anterior knee and patellar region. The neurologist recommended the worker continue with physiotherapy.

A WCB medical advisor reviewed the neurologist’s report on February 5, 2018 and concluded the neuropathy findings related to the June 15, 2017 workplace accident but did not require treatment and did not affect the worker’s function. The medical advisor recommended ongoing physiotherapy and the worker’s participation in a reconditioning program. In a report to the WCB arising out of a February 17, 2018 appointment, the treating family physician agreed with the recommendation that the worker attend a reconditioning program.

The WCB arranged for the worker to attend reconditioning with a physiotherapy clinic, and the worker began that program on March 7, 2018. The April 4, 2018 progress report from the program physiotherapist noted the worker's improvement but indicated the worker continued to experience knee pain when descending stairs. The report of May 1, 2018 indicated that the worker was fit to return to their full regular duties. In discussion with the WCB on May 2, 2018, the physiotherapist confirmed the worker was ready to return to work but noted their concern that the worker’s job required working 12 hour shifts and recommended that the worker return to work on a gradual basis.

On May 2, 2018, the WCB advised the worker that they were cleared to return to regular duties as of May 7, 2018 and as such, their entitlement to benefits would end as of May 4, 2018.

On May 17, 2018, the worker advised the WCB of their continued issues with their left leg from hip to knee, and into their calf and ankle and that the treating physician was referring them to a specialist. The May 15, 2018 report from the treating family physician noted the worker's complaints of ongoing pain to their left lower leg, with hip and lower leg pain when sitting. The physician found no swelling, warmth or redness on examination but noted tenderness to their left calf with pressure and indicated a diagnosis of left calf pain, noting the referral made to an internal medicine specialist.

On June 4, 2018, the worker advised the WCB they were doing "ok" but felt pretty sore after working a full shift and confirmed they were scheduled to see the internal medicine specialist on August 29, 2018.

On June 19, 2018, the worker requested Review Office reconsider the WCB's decision that there was no benefit entitlement after May 4, 2018, noting they were unable to continue working after working 14 days and had returned to work without a graduated return to work plan. On June 20, 2018, Review Office returned the worker's file to the WCB's Compensation Services for further investigation.

When the WCB contacted the worker on August 28, 2018, the worker advised they continued to have ongoing left leg pain and had not worked since approximately mid-May 2018. The internal medicine specialist advised they could not identify a specific issue or recommend any further treatment. The treating family physician also referred the worker for two ultrasounds of their lower leg, the second on August 24, 2018 and to an orthopedic specialist. The worker confirmed they kept in regular contact with the employer and described current symptoms of constant pain originating behind their left knee, sharp pain at the front of their knee under the kneecap when getting up, achy feeling from their buttocks to their foot when they sit and lower back and hip pain from sitting. The WCB advised they would gather further information from the treatment providers.

The ultrasound reports of March 8, 2018 and August 24, 2018, received by the WCB on September 4, 2018, indicated no evidence of deep vein thrombosis above the worker's left calf. The June 20, 2018 internal medicine specialist’s report provided that the worker had “a very tight left hamstring with resultant reduced range of extension in his left knee, and while this could certainly explain the pain in his left buttock, hamstring and popliteal fossa region, it would not necessarily explain the radiation of the pain distally, unless this represented referral pain." The specialist recommended the worker continue with physiotherapy.

On November 17, 2018, the WCB received copies of reports from the worker's treating orthopedic specialist. The September 12, 2018 report detailed the worker's reporting of the history of their left hip and knee pain, noting the pain was localized along the posterior buttock, with some radiation down to the knee and the calf and some feelings of numbness. On examination, the specialist noted a positive impingement test, but only mildly and negative straight leg raise testing. The specialist indicated the worker had a complex history and advised that the diagnostic imaging would need to be reviewed to determine a treatment plan. On September 13, 2018, the specialist noted the etiology was still unclear but recommended a trial pain injection into the leg knee to assess whether it would help with pain. On October 4, 2018, the worker returned to see the specialist reporting ongoing burning pain to their left leg, starting in their posterior buttock region. The specialist noted a mildly positive straight leg raise test with ankle dorsiflexion and full hip range of motion with mid pain impingement. They recommended a lumbar spine MRI. The November 15, 2018 report indicated the worker's symptoms were unchanged, and the specialist was still not clear on the etiology but referred the worker for a lumbar spine and left hip MRI for further assessment.

On December 1, 2018, a WCB medical advisor reviewed the worker's file and concluded that the structural etiology of the worker's current pain was unknown based on their review of available diagnostic imaging. The medical advisor noted the repeat left knee MRI indicated full resolution of the non-displaced tibial plateau fracture. The WCB medical advisor went on to opine that the medical evidence did not provide a basis to relate the worker's current symptoms to the compensable accident. On December 3, 2018, the WCB advised the worker there would be no change to the decision they were not entitled to benefits after May 4, 2018.

The WCB received a June 6, 2019 report from a physician with an interest in occupational medicine. The physician outlined that after examining the worker twice in March 2019, they concluded the worker "…sustained extensive strain and partial tearing from overloading the eccentric contraction of medial hamstrings…" and referred the worker to a physiatrist for further treatment.

A WCB medical advisor reviewed the worker's file including the June 6, 2019 report and concluded the medical evidence did not support a relationship between the worker's current presentation and the workplace accident. The WCB advised the worker on July 18, 2019 that there would be no change to the earlier decision.

On August 19, 2019, the worker requested Review Office reconsider the WCB's decision, outlining in their submission that when they returned to work, they continued to experience ongoing pain in their left leg and buttock area which progressed to the point they had to go off work. The worker noted their treatment providers made a referral to a physiatrist for further investigation and treatment as they were not recovered from the workplace accident. On October 17, 2019, Review Office determined the worker was not entitled to benefits after May 4, 2018.

The worker's representative, on February 24, 2020, requested Review Office reconsider the previous decisions, noting the evidence supported the worker’s entitlement to full wage loss benefits to May 16, 2018, being the day before the worker returned to work, and noted that the treating physiotherapist recommended a gradual return to work when clearing the worker to return to work but the WCB had ended the worker's entitlement to benefits as of May 4, 2018, without such a program in place. On April 7, 2022, Review Office found the worker was not entitled to benefits after May 4, 2018.

On August 26, 2022, the worker's representative submitted further medical information and again requested Review Office reconsider of the prior decisions as to the worker’s entitlement to benefits. The representative submitted that evidence supports a finding that the worker sustained a more sinister injury at the time of the workplace accident and as such, was entitled to further benefits after May 4, 2018 as they had not recovered. On November 8, 2022, Review Office requested the WCB arrange a call-in examination for the worker.

The call-in examination with a WCB orthopedic consultant took place on December 14, 2022. The WCB consultant, in their report from the examination outlined the diagnoses related to the June 15, 2017 workplace accident as left knee medial tibial fracture and left ankle ligamentous straining with a possible medial malleolar undisplaced fracture, both of which had healed and did not affect the worker's functioning. The WCB consultant concluded they could not "…find any identifiable pathology relative to the CI (compensable injury) that can begin to account for ongoing disablement." On March 10, 2023, a WCB medical advisor, at the request of Review Office, undertook a further review of the worker's file and confirmed the compensable diagnosis of left knee tibial plateau fracture healed by December 6, 2017 and that the worker's current lower back, left buttocks, hip and leg symptoms could not be medically accounted for in relation to the workplace accident. The medical advisor further requested a WCB radiology consultant review of the diagnostic imaging of the worker's left ankle. The WCB radiology consultant reviewed the imaging on March 25, 2023 and concluded that the October 14, 2017 left ankle MRI indicated a fracture of uncertain acuity, with the thickening and decreased signal intensity involving the anterior tibiofibular ligament appearing consistent with a long-standing remote injury.

Review Office determined on May 3, 2023 that the worker was not entitled to benefits after May 4, 2018, accepting that the compensable injuries were a left knee non-displaced fracture with a possible minor soft tissue injury to the left ankle. At the request of the worker's representative, Review Office clarified on May 17, 2023 that the worker had sustained a soft tissue injury to their ankle as a result of the accident, but the decision the worker was not entitled to benefits after May 4, 2018 remained unchanged.

The worker's representative filed an appeal with the Appeal Commission on May 30, 2024 and a hearing took place.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Worker’s Compensation Act (the “Act”), regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the Act in effect as of the date of the worker’s accidents apply.

Section 4(1) of the Act provides for compensation to be paid by the WCB where a worker has sustained personal injury by accident arising out of and in the course of employment. 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.”

The WCB established Policy 44.30.60, Notice of Change of Benefits (the “Notice Policy”) to describe when and how notice of a loss in benefits, payments or services will be provided by the WCB. The Notice Policy sets out the following general principles:

a. When the WCB is making a discretionary decision to change benefits, payments or services, "advance notice" will be provided to the worker, employer and healthcare provider. This means that the person(s) will be advised of the change before it is actually made. This notice gives clients an opportunity to consider how they may be affected and what alternative arrangements may be needed before the change is made. This notice also gives the client time to provide any additional information before the decision is implemented. 

b. When the WCB must make the change to comply with the Act or WCB Policy "deemed notice" is provided through the Act, WCB Policy Manual or other WCB publications. This means that the change may be made without advance notice. In these cases, the Act, WCB Policy or WCB publication is "deemed" to provide advance notice. 

c. Even when advance notice is not required, the WCB will make best efforts to tell the person that a change is coming before the change is actually made. In any event, the change will be made as required.

The Notice Policy outlines that when notice is required, it must be seven calendar days, extended for each statutory holiday that falls within the notice period, beginning from the date of the notice letter or the provision of verbal notice, and that a change in benefits or services comes into effect after the notice period ends.

Worker’s Position

The worker was represented in the hearing by a worker advisor who provided an oral submission and relied on their previous written submissions to Review Office detailing the worker’s position. The worker attended the hearing and offered evidence in response to questions posed to them.

The worker’s position is that they are entitled to benefits after May 4, 2018 because the evidence supports a finding that the worker was not capable of a full return to work at that time and had not fully recovered from the injuries sustained in the compensable workplace accident, but required further medical treatment and continued to sustain a loss of earning capacity arising out of the injuries sustained in that accident.

The worker advisor submitted that the WCB failed to provide adequate notice to the worker of the change in benefits as is required in relation to discretionary changes to benefits, under the provisions of the Notice Policy. The worker advisor argued that the WCB decision to terminate the worker’s benefits despite the fact the worker had not returned to work, had no other post-accident earnings and was recommended to return to work on a gradual basis was a discretionary decision and as such at least seven days’ notice was required under the Policy.

The worker advisor submitted that the evidence establishes that the worker did not return to fulltime employment until May 17, 2018 as the employer did not call the worker in to work until that date. Further, the evidence confirms that the employer did not provide the worker with a graduated return to fulltime hours as recommended and the WCB failed to follow up or confirm that the recommendation was implemented. The evidence further establishes that the worker resumed work on a full-time basis with overtime hours, which did not align with the treating physiotherapist’s recommendations. As a result, by June 14, 2018, the worker could not continue working and sought further medical treatment in relation to their continuing chronic left leg pain.

The worker advisor noted that the evidence confirms that worker’s treatment providers continued to treat and refer and investigate the worker’s ongoing symptoms well after May 4, 2018 and that the worker’s reported symptoms were consistent from the date of injury through and beyond that date.

Employer’s Position

The employer did not participate in the appeal.

Analysis

In this appeal, the panel must decide if the worker has any entitlement to benefits after May 4, 2018 as a result of the accident of June 15, 2017. If the panel finds that, as a result of the injuries sustained in that accident, the worker continued to require medical treatment or continued to sustain a loss of earning capacity beyond May 4, 2018, then the worker’s appeal succeeds. As detailed in the reasons that follow, the panel was able to make such findings and therefore, the worker’s appeal is granted.

The panel considered first whether the evidence supports the worker’s position that they are entitled to further wage loss benefits. The treating physiotherapist advised the WCB on May 2, 2018 that the worker was not capable of returning to 12-hour workdays and would need to continue treatment weekly for the next 4 weeks and proposed a return to work schedule of two days on, one day off, with physiotherapy on the off day and weekend rest. The employer advised the WCB on May 2, 2018 that there was little work available at that time but indicated a few shifts would be available the next week. Further, the employer did not indicate any concern regarding the plan for the worker’s return to work on a gradual basis given the reduced work available at that time. The panel noted that there was no communication between the WCB and the employer from May 2, 2018 until June 19, 2018 at which time the employer advised that the worker last worked on June 14, 2018, and had been working 12 to 14 hours per day and had complained that their leg was sore. The panel further noted that in the interim, the WCB case manager spoke with the worker on three occasions, being May 17, June 4 and June 11, but did not at any time note whether the return to work was graduated or if the worker resumed their regular hours, although on June 11 the worker advised that they were working very long hours and wanted “help with [their] return to work”. There is no indication in the file evidence that the WCB provided any such support.

The evidence confirms the worker did not return to work until mid-May, which is consistent with the information the employer provided to the WCB. We accept that the employer did not have job duties available for the worker until May 17, 2018 and that the worker returned to work at that time as requested. We find that the evidence establishes that the worker had a continuing loss of earning capacity arising out of the compensable workplace accident after May 4, 2018.

The panel also considered evidence in relation to the worker’s recovery from the injuries sustained in the workplace accident. We note the worker continued to report symptoms consistent with those reported since, but not prior to the date of injury beyond May 4, 2018. We note that the WCB continued to provide coverage for the worker’s previously approved physiotherapy beyond that date, although it did not obtain or request any further reports from the physiotherapist in relation to that treatment and as such the evidence does not confirm whether the worker’s recovery progressed further through such treatment. We also note that the worker requested approval of medical devices in late May 2018, which request the WCB determined were not related to the compensable injury and refused. We note the worker advised the WCB on May 16, 2018 that they were still having problems with their left leg and that they sought medical attention on May 15, 2018 with a further referral made at that time. We note that the WCB confirmed on May 16, 2018 that the treating physiotherapist “was aware of [the worker’s] ongoing problems” but could not “figure it out”. We note that the worker again reported difficulties with their left leg in a conversation with the WCB on June 4 and June 11, 2018, noting pain from their tailbone to hip and buttocks requiring ongoing use of pain relief medications.

The report from the treating physiotherapist, received by the WCB on May 15, 2018, indicated the worker’s reported continued left leg pain that increased when seated, persistent burning in the vein of their left leg, cause unknown, and that physiotherapy provided significant relief to some of the worker’s symptoms. This is consistent with the treating physician’s May 15, 2018 report which noted the worker reported left lower leg and hip pain while seated, daily use of pain relief medications and difficulty sleeping due to left leg pain and resulted in a referral to an internal medicine specialist and prescription of a compounded medication for additional pain relief.

The panel also notes the worker’s Request for Review, signed June 14, 2018 outlines that:

“My leg is not better still feels is in pain everyday and me going back to work without a return to work program like my worker told me was going to happen. Now with working 120 hours in 10 day has made my leg worse and I am not able to work after working for 14 days.”

Despite the WCB case manager noting on May 2, 2018 that “I believe in a successful return to work especially for someone who had been off work for a period of time”, the panel finds that the WCB did not sufficiently support a successful return to work for this worker. The case manager relied on the employer’s vague statements about limited work availability and did not follow up on a timely basis with either the worker or employer as to whether there was a successful gradual return to full hours. Further, it is evident that the return to work did not succeed, and the WCB did not assist or offer to help the worker, even after they specifically requested such support on June 11, 2018. In the meantime, the WCB refused the worker’s request for a medical device that the treating physiotherapist recommended as beneficial to the worker’s return to work. In the circumstances, it is not surprising that this return to work failed.

The panel also noted that although the WCB’s focus was on the worker’s recovery from the compensable patella fracture, the worker had other injuries that were not specifically addressed in the medical reporting at that time, including an ankle sprain/strain injury which the WCB did not accept as related until May 2023, and the Gonalgia paresthetica and neuropathy in the knee, which the WCB medical advisor accepted as compensable in February 2018. Furthermore, by the time the worker returned to work on May 17, 2018, there was another specialist referral pending in relation to the worker’s ongoing left leg symptoms, and a new more potent pain relief prescription just provided. As such, the medical reports available support a finding that the worker was not recovered from the compensable injuries to the point where no additional medical aid was required after May 4, 2018, other than completing the previously approved course of physiotherapy.

The panel also noted the numerous subsequent medical reports provided by the worker’s treating physicians, and the medical advisor and consultant reports obtained by the WCB after May 4, 2018. As noted by the worker’s representative, the totality of this evidence suggests that “the worker’s case is complex” from a medical perspective and does not support or indicate that the worker had no further need for medical aid in relation to the injuries sustained in the workplace accident. In this appeal, the issue before the panel is specific to a point in time, when investigations of the worker’s injuries and continuing symptoms were ongoing. As such, the conclusions later drawn by the reviewing WCB medical advisors, while likely relevant to the WCB’s management of the claim on a long term basis, carry little weight in our present deliberations as they are based on information not known at the time the WCB determined the worker was not entitled to further benefits in May 2018. The panel has therefore not considered those reports other than to note the extent of the worker’s compensable injuries proved greater than just the patella fracture which the WCB considered as healed at that time.

We are satisfied on the basis of the evidence before us and on the standard of a balance of probabilities that the worker is entitled to wage loss benefits and medical aid after May 4, 2018, in relation to the accident of June 15, 2017. The extent and duration of that entitlement must be adjudicated by the WCB. The appeal is therefore 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 24th day of February, 2025