The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

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

Date of Accident – January 26, 2023 (Left Ankle)

1. Their claim is not acceptable.

Date of Accident – January 26, 2023 (Right Shoulder)

2. They are not entitled to wage loss benefits after April 24, 2023; and 

3. They are not entitled to medical aid benefits after July 3, 2023.

A hearing was held on February 13, 2025 to consider the worker's appeal.

Issue

Date of Accident – January 26, 2023 (Left Ankle):

1. Whether or not the claim is acceptable.

Date of Accident – January 26, 2023 (Right Shoulder):

2. Whether or not the worker is entitled to wage loss benefits after April 24, 2023; and 

3. Whether or not the worker is entitled to medical aid benefits after July 3, 2023.

Decision

Date of Accident – January 26, 2023 (Left Ankle):

1. The claim is acceptable.

Date of Accident – January 26, 2023 (Right Shoulder):

2. The worker is not entitled to wage loss benefits after April 24, 2023; and 

3. The worker is not entitled to medical aid benefits after July 3, 2023.

Background

Date of Accident – January 26, 2023 (Left Ankle)

The worker filed a Worker Incident Report with the WCB on January 31, 2023 reporting an injury to their left foot that occurred at work on January 26, 2023, notifying the employer of the injury on January 29, 2023. The worker described working a 16-hour overnight shift starting on January 26, 2023 and attributed their injury to repetitive standing and walking during that long shift. It was noted that the worker initially noticed their symptoms after their shift on January 27, 2023 and that they had discomfort in their left foot, that travelled from their foot into their ankle. The worker advised they had a lot of pain in their left foot when putting their full weight on their left leg. The worker found swelling to the left ankle when they completed their shift. The worker further advised they thought their left foot would get better on its own and did not report the injury right away.

The employer provided the WCB with an Employer’s Accident Report on February 1, 2023. The employer noted that the worker reported to them on January 29, 2023 that they injured their left foot at work on January 26, 2023. The worker described working a double shift and while transporting a resident, experienced pain in their left ankle and queried if they twisted it.

Also on February 1, 2023, the WCB received a copy of a report from the worker’s treating physician for an appointment on January 28, 2023. The physician’s report indicated the worker developed left ankle pain and swelling 3 weeks ago, with pain to the medial side of the ankle that worsens with walking. No history of an injury or overuse or change of footwear was noted, with the physician recording the worker’s job duties required them to be on their feet all day. On examination, the treating physician found “swelling in medial side of ankle below medial malleolar, forefoot over pronation and hallux valgus tenderness on tibialis posterior area”, normal active range of motion in the ankle, a normal neurovascular exam but pain in resisted inversion. The worker was diagnosed with left ankle tibialis posterior tendinitis and an ankle brace and physiotherapy were recommended.

The worker attended an initial physiotherapy assessment on February 4, 2023. The worker reported to the physiotherapist that they experienced swelling and pain to their left foot/ankle when walking after working a double shift on January 26, 2023 and January 27, 2023. The treating physiotherapist noted the worker’s complaints of soreness on the inside of the foot and around the medial malleolus and after examining the worker, noted tenderness posterior to medial malleolus and that the worker was walking with a slight limp while wearing the ankle brace. A diagnosis of tibial posterior tendonitis was provided and restrictions of avoiding pushing stretchers/wheelchairs, wearing a brace on left ankle and walking as tolerated were provided.

At the request of the WCB, the employer provided further details of the worker’s job duties on February 8, 2023. The employer noted the worker performs a variety of duties while at work. It was noted by the employer that the job duty described by the worker as the cause of their injury on the employer’s report would only have been performed occasionally by the worker. The employer further noted the worker had not made any prior or ongoing complaints about their left foot.

On March 2, 2023, the WCB advised the worker that their claim was not acceptable as it had been determined a specific incident did not occur at work on January 26, 2023 to cause their left ankle difficulties. Additional medical information was placed on the worker’s file on May 8, 2023 including a report from the worker’s treating physician for an appointment on May 4, 2023, which recorded the worker’s complaints of pain to their medial left ankle with intermittent swelling and exacerbated by prolonged standing/walking. Swelling to the medial ankle/hind and mid foot, tenderness to the medial malleolus and talus was noted, along with normal active range of motion. The physician noted the worker had an MRI study pending and provided a diagnosis of left peroneal tendinopathy. Physiotherapy, along with icing and bracing of the ankle were recommended. Work restrictions of sedentary duties and avoiding prolonged standing/walking were also recommended. A Work Abilities/Modifications form was provided indicating sedentary duties only, standing and walking up to 2 hours per day, 1 hour at a time until June 15, 2023. A further follow-up report was received on June 15, 2023 for an appointment on the same date indicating ongoing swelling to the worker’s left medial ankle and a new injury to the ankle due to the ankle brace rubbing against the skin. The physician placed the worker off work for 2 weeks. The WCB also received a report from the worker’s treating physiotherapist on June 20, 2023, providing support to the worker and noting their belief that the worker’s diagnosis of posterior tibialis tendonitis was due to overuse during the worker’s double shift and their duties involving being on their feet much of their shift.

The worker requested reconsideration of the WCB’s decision to the Review Office on July 12, 2023. In their submission, the worker noted that their job duties are physically demanding and due to staffing issues, they are sometimes required to work alone. As well, the worker noted that their treating healthcare providers supported their left ankle injury was a result of a workplace accident. On July 25, 2023, the worker provided the Review Office with a copy of their left ankle MRI study conducted on July 3, 2023. The MRI indicated posterior tibialis tendinopathy including mild tendinosis and tenosynovitis, a partial thickness tear of the superficial deltoid ligament and possible sequelae of a Baxter’s neuropathy. The employer’s representative provided a submission in support of the WCB’s decision to not accept the worker’s claim on August 15, 2023, a copy of which was provided to the worker on August 16, 2023. A further response was received by the worker’s representative on August 29, 2023.

On September 18, 2023, the Review Office upheld the WCB’s decision and determined the worker’s claim was not acceptable. The Review Office found inconsistencies respecting when the worker’s left foot/ankle difficulties started and noted those inconsistencies, along with the inconsistent description of the workplace accident, made it difficult to establish an accident as defined within the WCB’s policies and regulations occurred. The Review Office found the evidence on file indicated the worker had been performing their job duties for many years without any known difficulties and there was no reported change to those duties. As such, a relationship between the worker’s left ankle/foot difficulties and their job duties could not be established.

Date of Accident – January 26, 2023 (Right Shoulder)

The worker filed a Worker Incident Report with the WCB on January 31, 2023 reporting they sustained an injury to their right shoulder at work on January 26, 2023. The worker related the injury to repetitive pushing, pulling and lifting of residents. The worker noted they felt discomfort in their right shoulder, that travelled from their shoulder to above their elbow, but they did not have any numbness or tingling. The injury was reported to the employer on January 29, 2023.

The worker was seen by a physician on January 30, 2023, reporting a history of pain to their right shoulder/lateral arm for about 2 months, with a new increase in pain over the last 2 days while at work. A new injury was not reported. On examining the worker, the treating physician found positive shoulder impingement and other testing and diagnosed the worker with a right rotator cuff strain. Physiotherapy and an x-ray were recommended. The x-ray was taken on the same date and found mild acromioclavicular joint osteoarthritis, with no fracture, dislocation or calcific tendonopathy found.

The worker attended an initial physiotherapy assessment on January 30, 2023. The physiotherapist noted the worker’s reporting of the onset of right shoulder pain at the end of a double shift, with lots of lifting as they were short staffed. The worker complained of right shoulder pain, which made their shoulder feel weak when lifting and soreness/stiffness on waking. Positive impingement testing was found, and the physiotherapist provided a diagnosis of right supraspinatus tendonitis. Restrictions of avoiding repetitive lifting/pushing/pulling with right arm, lifting up to 10 pounds with the right arm and avoiding overhead work with right arm above shoulder height were recommended.

The employer submitted an Employer’s Accident Report on February 7, 2023, noting the worker’s reporting of increased pain to their right shoulder while transporting a heavy resident. On February 13, 2023, the employer provided the WCB with a job description and a listing of the worker’s job duties. On March 1, 2023, the WCB accepted the worker’s claim, and the payment of various benefits commenced. Also on March 1, 2023, the worker attended for a further physiotherapy appointment, with some improvement in symptoms noted. Updated restrictions of lifting up to 15 pounds with right arm and limiting reaching overhead and repetitive motion with right arm were provided to the employer on March 3, 2023. On March 13, 2023, the employer advised the WCB that the worker had returned to work on modified duties on February 17, 2023. The worker’s further updated restrictions were provided to the employer on March 21, 2023, and noted to be ability to push/pull wheelchairs, beds and stretchers with patients up to 250 pounds on level ground; lifting up to 25 pounds with right arm below waist height; lifting up to 20 pounds to shoulder height; and lifting up to 15 pounds above shoulder.

The worker continued with physiotherapy treatment and on April 25, 2023 was cleared for their full regular duties. WCB advised the employer of same on April 25, 2023 and on April 26, 2023, the employer confirmed the worker had returned to their regular duties.

On May 15, 2023, the worker attended for further medical treatment, reporting ongoing right shoulder pain. The treating physician found normal range of motion with no neurovascular component and referred the worker for an ultrasound. On June 7, 2023, the worker attended a physiotherapy session, reporting ongoing pain in their right shoulder on lifting their arm in front and to the side with fluctuating pain. The physiotherapist noted soreness with flexion and abduction, soreness when lifting to shoulder height, weakness, pain with flexion and abduction and positive impingement. Restrictions of avoiding repetitive lifting and overhead work with right arm were recommended for 2 weeks. The worker saw their treating physician on June 13, 2023, who noted ongoing shoulder difficulties and provided restrictions of avoiding prolonged overhead work and avoiding heavy, greater than 25 pounds, pulling and pushing, to be reassessed in 1 month. The WCB provided those restrictions to the employer on June 14, 2023, who advised on June 19, 2023, they could accommodate the worker however, the worker was off work for non-WCB related reasons.

The worker’s file was reviewed by a WCB physiotherapy advisor on June 26, 2023, who provided the worker’s diagnosis with respect to the January 26, 2023 workplace accident was a right shoulder strain due to a lifting force, with a typical recovery period of 2 to 8 weeks. It was further provided that the worker’s current diagnosis was right acromioclavicular joint pain, due to findings of mild osteoarthritis in that joint. The mild osteoarthritis was determined to be a pre-existing condition and the advisor provided it may have delayed the worker’s recovery slightly. The advisor went on to provide that the worker’s current difficulties were related to their pre-existing osteoarthritis and their soft tissue injury from January 26, 2023 would have resolved. On July 4, 2023, the worker was provided with a letter from the WCB advising their entitlement to wage loss and medical aid benefits ended as of July 3, 2023 as it had been determined they had recovered from the compensable injury.

The worker requested reconsideration of the WCB’s decision to the Review Office on July 24, 2023, noting they were still experiencing difficulties as a result of the workplace accident and required further medical treatment for same. The worker noted that their treating healthcare provider supported their need for further medical aid benefits, providing the worker with restrictions on June 13, 2023 due to their difficulties. On September 5, 2023, the employer’s representative provided a submission in support of the WCB’s decision, a copy of which was shared with the worker on September 5, 2023. On September 14, 2023, the worker’s representative provided a response to the employer representative’s submission, along with copies of an August 30, 2023 right shoulder ultrasound and a September 2, 2023 MRI study. The Review Office requested the new medical information be reviewed by a WCB medical advisor, who placed their opinion to the worker’s file on October 4, 2023. The advisor opined that the diagnostic imaging indicated severe degenerative conditions within the worker’s right shoulder along with a small, low grade tear of the worker’s supraspinatus/infraspinatus junction. The WCB medical advisor stated that the small, low grade tear was unlikely the cause of the worker’s prolonged right shoulder difficulties, with the severe degenerative conditions more likely the cause of those symptoms.

The Review Office determined on October 10, 2023 that the worker was not entitled to wage loss benefits after April 24, 2023 and medical aid benefits after July 3, 2023. The Review Office accepted and agreed with the WCB’s medical opinion the worker’s compensable right shoulder strain would have recovered within 8 weeks and found the worker was not entitled to wage loss benefits after April 24, 2023. The Review Office noted that the worker was provided with physiotherapy treatment for their strain injury, with the date of the last treatment going to June 14, 2023. Following which, a home treatment program was developed for the worker for continued management of their right shoulder strain injury. The Review Office found this to be appropriate. As such, the worker was not entitled to medical aid benefits after July 3, 2023.

Both Claims

The worker’s representative filed an appeal with the Appeal Commission for both claims on February 14, 2024 and a hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors. The provisions of the Act in effect as of the date of the worker’s accident are applicable.

A worker is entitled to benefits under Section 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. The Act defines “accident” as follows:

"accident" 

(a) a chance event occasioned by a physical or natural cause, 

(b) a wilful and intentional act that is not the act of the worker, or 

(c) an event or condition, or a combination of events or conditions, related to the worker's work or workplace, 

that results in personal injury to a worker, including an occupational disease, post-traumatic stress disorder or an acute reaction to a traumatic event.

Under Section 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 Section 37 of the Act.

Section 27 allows the WCB to provide a worker with such medical aid as the board considers necessary or advisable to cure or give relief from an injury resulting from an accident.

Date of Accident – January 26, 2023 (Left Ankle)

Worker’s Position

The worker appeared in the hearing represented by a worker advisor. The worker advisor submitted evidence on January 24, 2025 for consideration by the panel members prior to the hearing and made an oral submission to the panel during the hearing. The worker testified by way of answering questions posed by their advisor and members of the appeal panel.

The worker’s position is that they suffered an injury from an accident that arose out of and in the course of employment, and therefore the worker’s left ankle and foot injury is acceptable.

The worker advisor notes that English is not the worker’s first language and indicates that any discrepancies regarding the description of the accident may be attributed to a language barrier.

The worker’s evidence is that their left foot-ankle difficulties are a result of the cumulative effect of performing their job duties over time and that, while short-staffed and working a double shift, the pain increased to a point where the worker could no longer control the pain and they sought medical attention. The worker submits that the evidence supports that the worker’s left ankle and foot injury arose in the course of their employment and therefore it shall be presumed that the injury arose out of their employment, unless there is evidence to prove that the accident did not arise out of the worker’s employment.

The worker’s treating physiotherapist noted on June 14, 2023 a diagnosis of posterior tibialis tendinitis and stated that the likely onset being due to overuse during the worker’s double shift.

The worker further argues that should the panel not be of the view that the worker’s employment caused their left ankle injury, then it is submitted, in the alternative, that the worker's work activities and obligations of employment were sufficient to aggravate the worker's pre-existing foot condition.

The worker is seeking that their claim be accepted.

Employer’s Position

The employer was represented in the hearing by an advocate. The advocate made an oral submission to the panel and answered questions posed by members of the appeal panel.

The employer states that the Review Office decision should be upheld.

The employer submits that there was no specific incident and no changes in the worker’s job duties. The employer further submits that there were inconsistencies about the mechanism of injury and inconsistencies about the onset of symptoms.

The employer asks the panel to place weight on the description of the symptoms to the sport medicine physician on January 28, 2023, as it was reported in closest temporal proximity to the incident. The report from January 28, 2023 indicates that the worker reported “spontaneous pain and swelling” to their ankle three weeks ago and “denies any trauma or mechanism of injury… No history of injury. No history of overuse or change of shoes."

The employer submits that the claim should not be accepted.

Analysis

The question in this appeal is whether the claim is acceptable. For the worker’s appeal to succeed, the panel would have to determine that the worker sustained an injury arising out of and in the course of their employment. As set out below, the panel was able to make such a finding and therefore, the worker’s appeal is granted.

The panel reviewed the evidence to determine whether there was an accident, as defined by the Act, arising out of and in the course of employment that resulted in injury to the worker. The evidence before the panel demonstrates that the worker suffered symptoms while at work, and particularly due to a long shift and the repeated pressing of the pedal of a stretcher. The panel relies on the symptoms reported to the worker’s treating physician and physiotherapist to find that the worker’s symptoms arose in the course of their employment.

With respect to the evidence regarding the worker’s employment, it is acknowledged that the worker’s job duties are physically demanding, and that the worker remains on their feet for the majority of their shift. The worker’s duties are varied and often involve physically transferring or moving patients, whether by lifting them or transporting them in a wheelchair or stretcher. The panel is of the view that degree of force required on the pedal of a stretcher to push and pull a patient would be sufficient to cause an injury of the ankle of the nature suffered by the worker in this instance. The panel is of the opinion that the evidence supports a connection between the worker’s job duties and the development of their ankle difficulties. Specifically, the panel finds that the worker suffered an overuse injury within an environment of existing degenerative conditions. The panel notes that there is evidence that the worker wore orthotics, was seeing a foot specialist and had physiotherapy treatment to their left foot prior to the workplace injury.

Therefore, the panel finds, on a balance of probabilities, that the worker’s left ankle injury is work related and that the worker’s ankle was aggravated by their work duties. The worker’s appeal is granted.

Date of Accident – January 26, 2023 (Right Shoulder)

Worker’s Position

The worker’s position is that the worker continued to suffer a loss of earning capacity beyond April 24, 2023, and required medical treatment beyond July 3rd, 2023, in relation to the right shoulder injury claim and therefore she is entitled to further benefits.

The worker points to the following medical evidence in support of the ongoing benefits, specifically:

• A letter dated May 15, 2023 from the worker’s physician which indicates the worker is waiting for a scan to assess their ongoing shoulder pain; 

• A report from the physician dated May 24, 2023 indicating that it is unknown when the worker would be able to return to regular duties; 

• an application for additional physiotherapy treatment dated June 10, 2023 which references the worker is capable of modified duties, with restrictions of avoiding repetitive lifting and overhead work with the right arm; 

• the worker’s physician recommending modified duties on June 13, 2023 with restrictions of avoiding prolonged overhead work and avoiding heavy pulling and pushing greater than 25 pounds, to be reassessed in one month; and 

• The worker's August 30, 2023, ultrasound of the right shoulder showed a partial thickness supraspinatus tear, which the worker argues is consistent with the mechanism of injury on January 26, 2023.

The worker also submits that despite any pre-existing right shoulder conditions, they were able to perform all their regular duties prior to the workplace accident.

The worker is seeking ongoing benefits respecting their right shoulder injury.

Employer’s Position

The employer’s position is that the Review Office decisions were correct. The employer states that based on the onset of the difficulties prior to January 26, 2023 and the diagnosis of a soft tissue strain injury and the normal recovery time thereof and the passage of time, the appeal should be denied.

The employer submits that the worker had pre-existing shoulder difficulties, and this was noted in the January 30, 2023 report by the sports medicine physician. Specifically, the report referenced a two-month history of shoulder pain. The employer submits that the imaging taken that day (January 30, 2023) also supports that this was a pre-existing issue as it noted “chronic pain.” The shoulder x-ray indicated mild acromioclavicular osteoarthritis.

The employer relies on the opinions of the WCB physiotherapy consultant and the WCB medical advisor. The WCB physiotherapist indicated that the recovery period for a right shoulder strain was two to eight weeks and opined that the symptoms were related to the pre-existing right shoulder osteoarthritis.

The employer states that any ongoing symptoms are related to the worker’s pre-existing conditions, that were not aggravated or altered in any way by the workplace activities and therefore further benefits are not appropriate.

Analysis

The issue under appeal is whether the worker is entitled to further wage loss benefits after April 24, 2023 and medical aid benefits after July 3, 2023. For the worker’s appeal to succeed the panel would have to determine that the worker continued to sustain a loss of earning capacity or to require medical treatment, in relation to the compensable workplace injury of January 26, 2023 after the respective dates specified above. As outlined in the reasons that follow, the panel was unable to make such findings and therefore the worker’s appeal is denied.

The medical evidence before the panel has been considered. The panel accepts and relies upon the opinions of the WCB physiotherapist and medical consultant of June 26, 2023 and October 4, 2023, respectively, stating that the worker suffered a strain and that there was nothing more sinister from the MRI imaging results. The evidence supports the worker had degenerative conditions of tendinosis and osteoarthritis and bursitis. Further, there is no evidence before the panel of structural aggravation in the imaging of the shoulder. A tear was also noted; however, it was described as “tiny” and a “finding commonly seen in shoulder MRIs of asymptomatic people of the worker’s age range”. The ongoing symptoms of the worker are, in the opinion of the panel, due solely to the pre-existing difficulties.

The panel accepts the evidence that the natural recovery time for a shoulder strain is 2 to 8 weeks. The panel finds that the worker’s right shoulder had recovered, based on the Physiotherapy Progress Report from worker’s treating physiotherapist, dated April 24, 2023, that states that the worker’s right shoulder was 80% recovered and recommended a trial return to full work duties and hours.

Based on the evidence and on the standard of a balance of probabilities, we find that the worker is not entitled to wage loss benefits after April 24, 2023 and medical aid benefits after July 3, 2023. The worker’s appeal is denied.

Panel Members

R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 3rd day of April, 2025