The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A hearing was held on May 15, 2025 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The worker filed a Worker Incident Report with the WCB on February 5, 2024, reporting they injured their abdomen at work on January 18, 2024, when objects they were lifting struck the side of a vehicle, which caused them to fall back and twist, resulting in abdominal pain. The worker noted they didn't report the injury as they did not feel the pain would persist, but they were still in pain 2 weeks later. The worker reported they did not have a diagnosis but that their treating physician had requested an MRI study. They further advised they were currently off work until February 13, 2024.

A January 29, 2024 report for a medical appointment the worker attended was received by the WCB. The report noted the worker was reporting upper epigastric pain that occurred on January 18, 2024 while lifting heavy boxes and feeling a pull below the ribs/upper abdomen area while going up steps. The worker described ongoing pain and stated that it felt like someone had punched them. The worker further reported they felt nauseous that evening and felt a bump in the area that was sore. The worker indicated that they took medication they had from a prior injury. After examining the worker, the treating physician noted no redness, bruising, mass, softness or tenderness in the epigastric area and diagnosed a likely abdominal strain. The physician queried gastritis from taking Naproxen. It was recommended that the worker stop taking this medication, attend physiotherapy and return for follow-up after bloodwork.

On February 1, 2024, the WCB contacted the worker to discuss their claim. The worker confirmed the mechanism of injury and described that it felt "…like a punch to the chest and shortly after it felt like heart burn…" The worker further described increasing pain that evening, vomiting and then experiencing diarrhea, which they self-treated with over-the-counter pain medication and a heating pad. The worker noted the day after the workplace accident, January 19, 2024, was a scheduled day off, followed by the weekend, and they returned to work on January 22, 2024 to their full regular duties. They then missed work starting on January 23, 2024. The worker described their current symptoms as quite a lot of pain at the bottom of their ribs and lower abdomen, and they continued to experience diarrhea.

Also on February 1, 2024, the employer submitted their Employer's Accident Report to the WCB and noted their concerns with the worker's claim. The employer indicated the worker was part of their national health and safety committee and as such, was aware of the process for reporting work-related injuries and illnesses. In addition, the employer indicated the worker did not report an injury or show any signs of discomfort and did not mention a work-related injury until January 29, 2024. The worker emailed the employer twice on January 23, 2024 to report they were ill and were vomiting. The worker emailed the employer again on January 24, 2024, to report they still felt sick and felt pain. The email on January 24, 2024 from the worker noted the worker's belief that the previous two days of being sick had caused a previous injury from a couple of months ago to cause pain in their middle/lower ribs. The employer also noted the medical note dated January 29, 2024 did not indicate a work-related injury.

The worker attended a follow-up appointment with their physician on February 1, 2024, reporting worsening epigastric pain with movement and exertion. The physician found tenderness with direct palpitation to the epigastric area but no redness or bruising. The physician provided a diagnosis of abdominal pain, like a strain and placed the worker off work for 2 weeks. On February 8, 2024, the WCB spoke with the worker again who advised on January 18, 2024, they believed they hurt themselves but thought they had only twisted something and did not report it. When they returned to work on January 22, 2024, they felt uncomfortable but managed, and the pain increased the following day. They self-treated the injury but when it did not improve, they sought medical attention on January 29, 2024. The WCB accepted the worker's claim.

On February 9, 2024, the WCB received a copy of a Functional Abilities Form, completed by the worker's treating physician on January 29, 2024. The Form indicated the worker was unable to perform any duties and placed the worker off work for 2 weeks. The worker attended an initial physiotherapy assessment on February 7, 2024, reporting pain to top and bottom of their abdomen, greater on the left than right side, with the pain ranging from sharp to cramping and feeling indigestion. The physiotherapist diagnosed an abdominal strain, greater on the left and noted that the worker was currently off work, and that their treating physician was determining when a return work was possible.

On February 18, 2024, the employer requested reconsideration of the WCB’s decision to accept the worker’s claim to the Review Office. Included with the request, the employer provided a submission detailing their concerns with the worker’s claim being accepted. The employer submitted copies of emails from the worker dated January 23, 2024, indicating they were not able to work that day due to being sick and included the subject “Vomiting” and a later email on the same date from the worker advising they would not be in on January 24, 2024 as they were still feeling very sick. The following day, the worker emailed advising the employer of their belief their sickness was due to a previous injury to their middle/lower rib area from “…a couple of months ago.” The email further noted the worker had not slept well due to pain and advised they would not be at work the next day. The employer advised the worker initially reported being off work due to vomiting and illness and had not related it to a work-related injury and did not show or report any signs of discomfort while at work. The employer noted that the worker initially related their injury to a previous injury from a couple of months previously and stated that the evidence did not support the worker sustained an injury while at work.

A follow-up report was received by the worker’s treating physician on February 27, 2024, indicating the worker reported ongoing abdominal pain that was not improving, and worsened when lifting. The physician noted the worker had a pending CT scan. It was recommended the worker could return to work on light duties for 4 hours a day, then progress as tolerated. The abdominal CT scan was conducted on March 5, 2024, and indicated “Stable examination. No adverse interval change. No definite cause for the patient’s clinical presentation on this study.”

The worker was seen by a physiatrist on March 26, 2024. After examining the worker, the physiatrist opined “…a large part of [the worker’s] presentation are consistent with an abdominal strain” and noted the worker had been referred for a consultation with a gastroenterologist to investigate a possible gastrointestinal issue. A Functional Abilities Form, completed by the worker’s treating physician on March 13, 2024, was received by the WCB on March 27, 2024. The Form indicated the worker was capable of returning to work for 4-hour shifts, 2 shifts per week. On March 27, 2024, the worker’s treating physician recommended an increase to 6 hours per shift for 2 shifts per week for the worker.

The employer submitted additional information to Review Office on April 4, 2024, noting the worker disagreed with the employer’s interpretation of the Functional Abilities Form completed by the worker’s treating physician on February 27, 2024 and believed it read that they were capable to perform a 4 hour shift, once per week with the employer believing it to read capable of performing 4 hour shifts each day for the week. The WCB later clarified with the worker’s physician that the worker was capable of working 4 hours shifts as they could tolerate and noted those restrictions were reduced in later forms as the worker had advised they could not tolerate longer hours and more shifts. In addition, the employer noted the worker had advised the employer on March 27, 2024 that they had been cleared by their physician to travel to another province for a safety conference. However, the employer noted the worker’s restrictions at the time were no exposure to vibrations and included modified hours of 4-hour shifts, for 2 shifts per week. As such, the employer had advised the worker that they could not attend the conference in person and they were to attend virtually.

On April 9, 2024, the Review Office overturned the WCB’s decision and determined the worker’s claim was not acceptable. The Review Office found the evidence did not support the worker was at work and/or performing their job duties when they experienced an injury and as such, their claim was not acceptable.

The worker’s representative filed an appeal with the Appeal Commission on December 23, 2024 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The panel is bound by The Workers Compensation Act (“the Act”), regulations under the Act, and policies established by 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 subsection 4(1) of the Act where it is established that the worker was injured as a result of an accident at work.

What constitutes an accident is defined in subsection 1(1) of the Act, as follows:

"accident", subject to subsection (1.1), includes 

(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; (« accident »)

The WCB's Board of Directors has established Policy 44.05, Arising Out of and in the Course of Employment, with respect to determining whether an accident is related to a worker's employment. The Policy states, in part, that: 

A worker's accident arises in the course of their employment when it occurs at or during work. In determining whether a worker's accident arose in the course of employment, the WCB generally focuses on evidence regarding the time and location of the accident. If the event(s) that caused the worker's injury occurred during work, at a place where the worker is reasonably expected to be, the accident arose in the course of employment.

Worker’s Position

The worker was present at the hearing, represented by an advisor. The worker’s representative submitted evidence in advance of the hearing and made an oral presentation at the hearing. The worker answered questions posed by their representative and by members of the appeal panel.

The worker's position was that they sustained a workplace injury on January 18, 2024, when lifting items at work caused them to fall and injure their abdomen.

The worker submits that the evidence supports the worker was at work and performing their expected duties when they were injured. The worker states that they were consistent in reporting the same work-related description of injury.

The worker also submits that the evidence supports the worker required medical aid to cure and provide relief from the January 18th, 2024 workplace injury and that upon completing a course of physiotherapy, the worker was able to return to his full-time regular duties without restrictions.

The worker argues that but for the workplace injury the worker would not have required medical aid. The worker also states that where the 'but for' standard of causation applies, work activities or exposures do not have to be the sole, or dominant cause of the worker's injury.

The worker’s position is that their abdominal strain injury arose out of, and in course of employment, and therefore their claim for compensation is acceptable.

Employer’s Position

An HR Specialist and a Branch Manager were present at the hearing as representatives for the employer. The representatives relied on past submissions made to the Review Office and answered questions posed by members of the appeal panel.

The position of the employer is that the worker was not injured during the course of employment.

The employer does not dispute that the worker felt unwell but states that they have concerns regarding the timeline and details of the reported injury. The employer states that the worker did not complain of or report their injury on January 18, 2024 despite working a full shift that day, including overtime. The employer further states that the worker worked on January 22, 2024 (11+ hours) without reporting any injury or discomfort.

The employer notes that the worker emailed the employer to advise that they were sick, citing vomiting and illness, but did not mention a workplace injury. The employer states that when the worker did mention an injury to the employer, it was a previous injury from months prior and not a recent injury.

The employer submits that there are inconsistencies in dates and areas of injury and contradictions between the worker’s functional abilities and a request to travel for work, despite restrictions being in place that would not support long distance travel.

The delay in reporting is raised by the employer, as well as the lack of a witness or observed symptoms by the employer.

The employer advises that they continued to offer modified duties to the worker but same were declined as the worker decided to apply for short-term disability benefits.

The position of the employer is that the denial of the worker’s claim should be upheld.

Analysis

The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered an injury by accident arising out of and in the course of their employment. The panel is unable to make that finding for the reasons that follow.

The panel considers the emails sent by the worker to the employer at or around the time of the alleged injury to be particularly significant. In those communications, the worker advised they were ill and unable to work but did not report having sustained a workplace injury and instead attributed their symptoms to a pre-existing injury from months prior. The panel does not accept that the pre-existing injury was a recent injury or an injury that occurred on January 18, 2024.

The panel does not view the worker’s delay in reporting their injury to their employer as problematic, given that the delay was minor. However, the fact that the initial reporting referenced an injury sustained several months earlier, combined with the absence of any reported discomfort or symptoms during the extended shift worked on January 22, 2024, undermines the claim that the injury is work-related and sustained on January 18, 2024.

The panel considered the medical evidence before it, and notes that there was no evidence of an injury to the worker’s upper abdomen or a traumatic injury. The panel notes that while the diagnosis was abdominal pain and likely abdominal strain, the worker’s treating physician also queried if the worker’s symptoms were related to “gastritis” and/or “dyspepsia (indigestion/acid reflux). The panel finds that the nature of the worker’s symptoms is more consistent with gastrointestinal issues than with a musculoskeletal strain injury.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer an injury by accident arising out of and in the course of their employment. The claim is therefore not acceptable.

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 14th day of July, 2025