The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they were not entitled to wage loss benefits for the period October 30, 2023 to December 10, 2023. A hearing was held on October 3, 2024 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits for the period October 30, 2023 to December 10, 2023.

Decision

The worker is entitled to wage loss benefits for the period November 10, 2023 to December 6, 2023.

Background

On October 27, 2023, a Worker Incident Report was received by the WCB indicating the worker injured their lower back in an incident at work on August 9, 2023. The worker described unloading a truck, when they turned to put a box on a cart and felt a sharp pain, then burning. The worker noted they did not immediately report their injury as they felt it would go away. The worker reported to the WCB that they had advised the employer of the incident on August 10, 2023.

In a discussion with the WCB on October 30, 2023, the worker confirmed the mechanism of injury, noting the boxes they were unloading weighed between 2 and 50 pounds. The worker reported that their back hurt for the rest of their shift and when they got home, they put on a back brace that belonged to their spouse. The following day, their supervisor asked why they were wearing a brace and the worker advised it was due to hurting their back the previous day. The worker further noted that they wore the brace throughout September 2023, with the burning sensation in their lower back worsening and spreading to their shoulders. The worker advised that they sought treatment from their treating chiropractor on October 26, 2023 who recommended time off work to rest and physiotherapy. The worker described their current symptoms as a burning sensation across their shoulders down into both sides to their lower back with the pain keeping them up at night. The worker noted they sleep with a heated pillow for their back and they continued to use their spouse’s back brace. The worker advised the WCB that they started missing work on October 30, 2023 and that it was their belief that there were no light duties available. In a further discussion on October 31, 2023, the worker advised that they continued to work their regular duties from August 9, 2023 to October 30, 2023, while wearing the back brace and had mentioned their back difficulties to the manager on different occasions. The worker further noted the manager changed on September 1, 2023.

The worker attended an initial physiotherapy assessment on October 31, 2023, and reported an injury to their lower back that occurred on August 9, 2023 after lifting a box at work. The worker described lifting a box and turning to the left and then feeling a pull in their back. The worker advised the pain continued to worsen over time and complained of a burning sensation in their low back/waist area and across their shoulders. Further, the worker advised the treating physiotherapist that the pain gets so bad, it causes headaches. On examining the worker, the physiotherapist found on standing, the worker’s right hip was higher than the left, increased lordosis at L4/L5, and hip and knee slightly flexed. Right hip flexion weakness, right knee extension weakness, and right knee flexion weakness were noted, along with positive sacral thrust, Thomas stretch, and straight leg raise testing was completed. A diagnosis of a lumbar strain/sprain was provided. Restrictions of no push/pull, no lifting more than 5 pounds, no standing for more than 30 minutes, and no twisting or bending.

An August 16, 2023 report from the worker’s treating chiropractor was received by the WCB on November 4, 2023. The worker reported right low back and right hip pain, and right lateral leg pain, described as a dull ache with a burning sensation, with lifting aggravating their lower back/hip area. Decreased range of motion on extension in the worker’s right posterolateral low back area was noted with myofascial triggers in the L4/L5 area on the right side. A lumbosacral sprain/strain was diagnosed.

The employer submitted their Employer Incident Report to the WCB on November 6, 2023. The Report indicated the worker contacted the employer on October 29, 2023 to advise that they were taking October 30, 2023 off on the recommendation of their treating chiropractor to see a physiotherapist for a workplace injury that took place in August. The employer noted, on October 31, 2023, that the worker advised the employer the physiotherapist indicated they would be off work for “months”.

On November 29, 2023, the WCB advised the worker that their claim was not acceptable. The WCB noted that the worker continued to work their regular duties for over 3 months before attending for medical treatment and their employer was not informed of an injury occurring on August 9, 2023. The worker requested reconsideration of the WCB’s decision by the Review Office on December 13, 2023, indicating that they sought medical treatment when they could, advised several coworkers of their difficulties and was recommended to wear a back brace for their difficulties. On February 12, 2024, the Review Office overturned the WCB’s decision and found that the worker’s claim was acceptable. The Review Office returned the worker’s file to the WCB’s Compensation Services for further adjudication.

The WCB requested further information from the worker’s treating healthcare providers and on February 27, 2024, received chart notes from the worker’s chiropractor from August 16, 2023 to October 26, 2023. On the same date, the WCB received a copy of a Doctor First Report dated August 10, 2023, with the worker’s treating family physician reporting the worker’s complaints of chronic pain affecting their back and hip area and along the lateral aspect of their thigh. The worker’s gait, hip and spine movement were noted to be normal, and no restrictions were noted. A trial of pain medication was recommended. A copy of a November 10, 2023 note from the worker’s treating physiotherapist recommending the worker remain off work for 2 weeks was added to the worker’s file on March 5, 2024, along with a November 22, 2023 physiotherapy note placing the worker off for a further 2 weeks, to be reassessed on December 6, 2023. A WCB physiotherapy consultant reviewed the worker’s file on March 20, 2024, and placed a memorandum to the file. The consultant noted the worker’s diagnosis was a lumbosacral sprain/strain with active myofascial trigger points and indicated the expected recovery from that type of injury was 2 to 8 weeks. The physiotherapy consultant noted disagreement that the worker would have been totally disabled from working 2.5 months after the workplace injury, and noted that the worker was capable of performing their regular duties from August 9, 2023 to October 31, 2023. On March 25, 2024, the WCB advised the worker that their claim was accepted for an incident that occurred on August 9, 2023 and they were entitled to medical aid benefits however, they were not entitled to wage loss benefits.

The worker again requested reconsideration of the WCB’s decision they were not entitled to wage loss benefits to the Review Office on April 2, 2024. In their submission, the worker listed the dates they sought medical treatment and advised that, on October 30, 2023, their treating chiropractor recommended they take a leave of absence from work to heal. In addition, the worker advised on December 10, 2023, that their treating physiotherapist recommended they find a different job that put less strain on their body and the worker further advised they provided the employer with their notice that date. On May 15, 2024, the Review Office upheld the WCB’s decision that the worker was not entitled to wage loss benefits from October 30, 2023 to December 10, 2023. The Review Office found the medical information on file did not support a change in the worker’s low back condition in October 2023 that would be causally related to the August 9, 2023 workplace accident and would require the worker to be off work. The Review Office noted the worker did not make any complaints to the employer related to their back difficulties from August 2023 to October 2023 and found the worker had made other complaints related to their neck, upper back and shoulders, with those difficulties not medically accounted for in relation to the workplace accident.

The worker filed an appeal with the Appeal Commission on June 11, 2024, and a hearing was arranged. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On March 3, 2025, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

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 compensation under Section 4(1) of the Act when it is established that they sustained personal injury because of an accident at work. Under Section 4(2) of the Act, a worker injured in an accident is entitled to wage loss benefits for their loss of earning capacity resulting from the accident, but wage loss benefits are not payable where the injury does not result in a loss of earning capacity during any period after the day of the accident.

When, because of an accident, the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid, compensation is payable under Section 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 22 of the Act outlines the responsibility of a worker to take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury, to seek out, cooperate in and receive medical aid that promotes their recovery and to cooperate with the WCB in developing and implementing programs for returning to work. When a worker fails to comply with those responsibilities, the WCB may reduce or suspend the compensation payable to the worker.

Worker’s Position

The worker was present and self-represented at the hearing. The worker relies on their submission to the Review Office and their reasons set out in the Worker Appeal of Claims Decision Form dated June 9, 2024. The worker made an oral submission to the panel and answered questions posed by members of the appeal panel.

The worker disagrees with the decisions of the WCB and the Review Office. The worker’s position is that they are entitled to wage loss benefits for the period in question.

The worker agrees that they were still working following their injury but was taking pain medication in order to do so. They worker states that their treating physiotherapist advised them that they needed time off work and that they would not recover until they took time off work. The worker submits that they followed the advice of their treating physiotherapist and that they were not able to work or return to regular duties between November 10, 2023 to December 6, 2023 due to their compensable work related injury.

Employer’s Position

The employer did not participate in the hearing.

Analysis

The question on appeal is whether the worker is entitled to wage loss benefits from October 30, 2023 to December 10, 2023. For the worker’s appeal to succeed, the panel would have to find that the worker had a loss of earning capacity in the aforementioned period arising from the injury sustained in the compensable workplace accident of August 9, 2023. As detailed in the reasons that follow, the panel was able to make such a finding that there was a loss of earning from November 10, 2023 to December 6, 2023 and therefore, the appeal is granted, albeit with an adjustment to the period in question.

The panel accepts the worker’s evidence that a portion of their work duties were physically demanding and involved occasional lifting and unloading of product.

The panel notes that the initial medical evidence did indicate that the worker was capable of modified duties, however the notes on the file state that the worker indicated that they did not believe any light duties were available. There is no evidence before the panel that the worker attempted to return to work at this time. The panel is of the view that there was an onus on the worker to mitigate their claim and to reduce their loss of earnings.

The physiotherapist indicated on October 31st that the duration of the worker’s restrictions was six weeks. The physiotherapist assessed the worker on November 10th and provided an off work note due to the worker’s increased pain and limitations. On November 22, 2023 the physiotherapist provided the worker a note to be off work until another assessment in two weeks. The evidence of the treating physiotherapist in their letter dated December 11, 2024 is that while they initially indicated the worker was capable of modified duties with restrictions, they later determined that the worker’s condition had worsened and that they were unable to work. The worker states that they remained off work following their physiotherapist’s recommendation. The panel relies on the opinion of the worker's treating physiotherapist as they examined the worker and treated the worker on several occasions. . The panel is therefore of the view that the worker had not recovered prior to or during the period of November 10, 2023 to December 6, 2023, which was two weeks following the worker’s November 22 appointment with their physiotherapist.

The panel is satisfied that the worker was following the advice of their treating physiotherapist in not returning to work between November 10, 2023 and December 6, 2023 and is of the view that the worker sustained a full loss of earning capacity for that period.

The panel finds, based on a balance of probabilities, that the worker experienced a loss of earning capacity from November 10, 2023 to December 6, 2023 as a consequence of the compensable workplace injury sustained on August 9, 2023. For this reason, the worker is entitled to wage loss benefits during that period and the worker’s appeal is granted.

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 20th day of May, 2025