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 wage loss benefits after September 6, 2024. A hearing was held on April 22, 2025 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after September 6, 2024.

Decision

The worker is entitled to wage loss benefits after September 6, 2024.

Background

The worker has an accepted WCB claim for a concussion, bilateral shoulder, right elbow, low back and neck strains that occurred as the result of an incident at work on November 16, 2023, when the worker climbed up a trailer to check their load and fell to the ground. The worker noted on the Worker Incident Report filed with the WCB on December 8, 2023, that they did not recall falling and guessed they were unconscious for approximately half an hour. They further advised they were “…probably up over ten to fourteen feet from where I fell”. It was noted that the worker called their son to pick them up.

The worker attended for medical attention on November 20, 2023, reporting headache, dizziness, impaired short-term memory, nausea, minimal appetite and general malaise. The treating physician noted a normal neurological examination but recommended brain rest and referred the worker to a sports medicine physician for the concussion. The physician placed the worker off work until December 17, 2023, and recommended a reassessment prior to returning to work. The worker attended for a follow-up appointment on December 5, 2023, noting persistent headaches, dizzy spells, neck and back pain and difficulty with word finding. The physician noted no improvement in the worker’s symptoms and noted the worker was awaiting a head CT scan. A further follow-up appointment on December 15, 2023 noted improvement in the worker’s headaches, dizziness and body pains and recommended the worker remain off work until January 22, 2024.

On December 18, 2023, the worker attended an initial physiotherapy assessment and described two incidents that occurred while at work. The first: on November 14, 2023, which involved falling and hitting their head, and the second: on November 15, 2023, when they climbed on the trailer and next recalled waking up on the ground and reported a gradual build-up of pain over their entire body. The worker’s complaints of concussion symptoms, bilateral shoulder pain, right elbow, low back and neck pain were recorded by the treating physiotherapist. The physiotherapist noted the worker had an antalgic posture when standing and walking and difficulty articulating words and repeating sentences. After examining the worker, the treating physiotherapist diagnosed the worker with multi-joint sprain/strain (cervical, rotator cuff, low back, hips, and right elbow) with nerve mechano-sensitivity and concussion symptoms.

A copy of the worker’s January 11, 2024 brain CT was added to the worker’s file on January 15, 2024. No acute intracranial hemorrhage was noted. The worker was seen by a second physician on January 18, 2024 for an assessment. The worker described two incidents involving slipping and/or falling, striking their head and the second incident, being unconscious for approximately 30 minutes. The worker reported symptoms including feeling unclear, frustrated and less motivated, having to search for words; blurry vision; negative affect, headaches and some light sensitivity but no neck pain or stiffness and no weakness or numbness in their extremities. The treating physician examined the worker and noted normal testing including full range of motion in the worker’s cervical spine. An MRI of the worker’s cervical spine did note “…compression on the right C6 or C7 nerve roots by a large disc [protrusion]. Lateral epicondylosis is present but no abnormality of the ulnar nerve”. The physician confirmed the worker’s diagnosis of concussion and discussed the natural history of recovery of same with the worker. As well, the physician opined the worker had a minor head injury with an associated neck strain and noted the psychosocial impact of the concussion on the worker. The worker reported to the physician they had experienced depression in the past. The physician noted the worker had been impacted by “Significant mental health symptoms” and described symptoms of frustration, anger, tearfulness and low mood. On March 1, 2024, the worker underwent a cervical spine MRI which indicated multilevel degenerative changes and noted severe right foraminal narrowing at C3-C4, which was new since the last MRI.

At the request of the WCB, the worker attended a call-in examination with a WCB medical advisor on March 27, 2024. After examining the worker, the WCB medical advisor provided the worker’s recovery from the concussion and strain type injuries was progressing satisfactorily and recommended the worker be referred to a WCB neuropsychological consultant to determine if the worker’s cognitive symptoms and headache were related to the compensable concussion injury. On April 7, 2024, the worker’s file was reviewed by a WCB psychological consultant who agreed with the WCB medical advisor’s recommendation for the worker to be referred to a neuropsychologist.

The worker continued to attend physiotherapy treatments with a discharge report received from the worker’s treating physiotherapist on June 6, 2024. The report noted the worker’s reporting of pain and stiffness in the low back, neck and shoulders, especially in the morning, ongoing headaches, difficulty concentrating, and low sitting tolerance, especially when driving due to low back pain. It was noted that the worker had full range of motion, with pain in their neck and low back with all directions of movement and full range of active shoulder flexion with pain at the top of movement. The worker’s sitting tolerance was noted to be up to 45 minutes at a time and, it was noted that the worker had ongoing concussion symptoms.

On June 17, 2024 and June 19, 2024, the worker underwent neuropsychological testing, with the final report received by the WCB on August 29, 2024. In summary, the treating neuropsychologist provided “A pattern of neurocognitive compromise related to concussion was not identified. No cognitive barriers to returning to work were identified.” It was noted however that the worker displayed a significant preoccupation with their health and physical functioning and the neuropsychologist provided a diagnosis of Somatic Symptom Disorder, Moderate for the worker.

The WCB spoke with the worker on August 29, 2024 to receive a status update. During the discussion, the WCB advised the worker that the report from the neuropsychologist did not identify any physical or neurocognitive barriers to the worker returning to work and as such, their entitlement to wage loss benefits would end on September 6, 2024. The WCB followed up the discussion with a formal decision letter on September 5, 2024. In response to information requested by the WCB, the worker’s treating physician provided a report on September 11, 2024, clarifying the worker’s current diagnoses and symptoms and noted their assessments of the worker had been focused on the concussion and post-concussion symptoms and indicated the worker would benefit from ongoing physiotherapy.

The worker requested reconsideration of the WCB’s decision to end their entitlement to wage loss benefits to the Review Office on September 16, 2024. On their application, the worker noted they continued to receive treatment from their treating physician for “…severe back pain and loss of feeling in both hands as well and severe headaches and occasional dizziness.” It was further noted they were scheduled to be assessed by a neurologist in March 2025. On October 10, 2024, the worker’s treating psychiatric nurse therapist provided a report to the WCB indicating the worker was experiencing ongoing mental health issues, provided a diagnosis of adjustment disorder with mixed anxiety and depressed mood and requested further treatment for the worker.

The Review Office determined the worker was not entitled to wage loss benefits after September 6, 2024 on October 28, 2024. The Review Office accepted and agreed with the opinions of the WCB medical advisors and the neuropsychologist and found with respect to the worker’s soft tissue injuries, they were no longer contributing to the worker’s loss of earning capacity. The Review Office further found the worker’s cognitive functioning was noted to be normal and the compensable concussion diagnosis was also no longer contributing to the worker’s loss of earning capacity.

The worker filed an appeal with the Appeal Commission on November 21, 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 (the “Act”), regulations under the Act and the policies established by the WCB's Board of Directors.

Section 4(1) of the Act provides that the WCB will pay compensation when a worker has sustained personal injury by accident arising out of and in the course of employment, and section 4(2) of the Act further provides that a worker injured in such an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident.

Compensation is payable under Section 37 of the Act when the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid because of an accident.

Section 39 of the Act indicates 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 responsibilities of an injured worker which includes taking all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury, seeking out, co-operating in and receiving medical aid that promotes their recovery, and co-operating with the WCB in developing and implementing programs for returning to work, rehabilitation or disability management or any other program the board considers necessary to promote the worker's recovery.

Worker’s Position

The worker was self-represented at the hearing. The worker provided a submission in advance of the hearing, summarizing their latest medical appointments and treatments. The worker also made an oral presentation at the hearing and answered questions posed by members of the appeal panel.

The worker’s position is that they continued to experience a loss of earning capacity after September 6, 2024, and that they had not recovered from the effects when their benefits were terminated by the WCB.

The worker states that they have had ongoing headaches since the workplace accident and have sensitivity to light. The worker also referenced continued neck and back pain. The worker states that the persistent symptoms have made it so that they no longer participate in sports and have ceased riding their motorcycle. The worker also disclosed a pre-existing history of concussions.

The worker’s evidence was that they continued to attend for treatment after September 6, 2024 to address their ongoing concussion symptoms. The worker also indicated that they have continued their at-home physiotherapy program.

The worker submits that they are entitled to wage loss benefits after September 6, 2024.

Employer’s Position

The employer did not participate in the appeal process.

Analysis

The question before the appeal panel is whether or not the worker is entitled to wage loss benefits after September 6, 2024. For the worker’s appeal to be successful the panel must find that the worker sustained a loss of earning capacity after September 6, 2024 as a result of the injuries sustained in the workplace accident of November 16, 2023. As detailed in the reasons that follow, based on the evidence before the panel, we were able to make such a finding and therefore, the worker’s appeal is granted.

The panel’s review of the medical evidence confirms that the worker suffered a serious head injury, which resulted in multiple injuries including a concussion, bilateral shoulder strain, elbow strain, low back strain and neck strain.

The WCB accepted the claim for a concussion and this diagnosis was made at the worker’s initial medical appointment on November 20, 2023 following the workplace accident. The temporal link between the accident and the onset of the symptoms is supported by the evidence.

The panel accepts the worker’s description of their ongoing symptoms, including constant headaches and light sensitivity. The panel also notes the worker’s prior history of concussions.

The panel favours the evidence most temporal to the injury that the worker had headaches and nausea, among other symptoms, and accepts the evidence from the treating physician that the worker needed brain rest. The panel also accepts the evidence of the worker’s treating physician (from September 11, 2024) that the worker has not recovered from the effects of the workplace injury and is still suffering concussive and post-concussion symptoms. The panel reviewed the worker’s evidence regarding their recent medical appointments and is of the view that the worker is undergoing ongoing investigations regarding their symptoms. Therefore, the panel finds that there is no evidence that the worker has recovered from their injuries from the workplace accident.

The WCB medical advisor noted there was no specific physical injury, and the neuropsychologist found there to be no cognitive decline or impediment to returning to work. The Review Office agreed with the opinions of the WCB medical advisors and the neuropsychologist and focused on the musculoskeletal symptoms, not the worker’s concussion symptoms. The panel notes that on September 6, 2024, the WCB posed questions to the worker’s treating physician concerning the worker’s neck and low back symptoms. However, when the physician responded on September 11, 2024 indicating that their assessments had focused primarily on the worker’s concussion and post-concussion symptoms, the WCB did not seek any further clarification or inquiry regarding the concussion-related symptoms the worker was experiencing. The panel finds this omission significant and is of the view that the WBC did not adequately consider the full extent of the symptoms related to the compensable injuries.

Furthermore, the panel notes that the WCB sent the worker a letter on September 5, 2024 advising of the termination of their wage loss benefits effective September 6, 2024, despite the fact that their letter to the treating physician was not sent until September 6, 2024 and the response from the treating physician was not received until September 11, 2024. The panel is concerned that the decision to end benefits was made without the benefit of all available and relevant medical evidence. 

A review of the medical evidence confirms there was consistent reporting of headaches throughout the file and the evidence at the hearing was that the worker’s headaches continued after September 6, 2024. The Physiotherapy Initial Report and the Progress Reports reference the presence of concussion symptoms. Additionally, the Physiotherapy Discharge Report from June 6, 2024 confirms the existence of ongoing headaches and difficulty concentrating and indicates that concussion management was ongoing and being assessed.

The panel respectfully places more weight on the worker’s evidence of continued symptoms and the opinion of the worker’s treating physician and treating physiotherapist.

It is worth noting that the worker’s Request for Reconsideration dated September 16, 2024 stated that the worker did not agree with the WCB decision regarding the termination of their wage loss benefits as well as the cessation of their payment for treatment. The Review Office did not address the latter issue in their decision. This panel does not have the ability to provide a decision respecting the payment for treatment or medical aid benefits until such time as it has been adjudicated by the Review Office.

The panel finds, on a standard of a balance of probabilities, that the worker had not recovered from the compensable workplace injuries by September 6, 2024, but continued to sustain a loss of earning capacity beyond that date. Therefore, the worker is entitled to wage loss benefits after September 6, 2024. The 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 June, 2025