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 from August 26, 2022 to February 27, 2024. A hearing was held on May 20, 2025 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits from August 26, 2022 to February 27, 2024.

Decision

The worker is not entitled to wage loss benefits from August 26, 2022 to February 27, 2024.

Background

The worker has an accepted WCB claim for a psychological injury that occurred at work on January 19, 2022. The worker’s claim was accepted on February 9, 2022, and the worker began to receive various benefits including wage loss and medical aid.

The worker returned to work on a graduated basis on April 18, 2022, performing their regular duties on reduced hours and was working their regular duties at full hours by June 17, 2022. It was noted that the worker went off work on August 8, 2022 due to an increase in symptoms, however, they returned to work on August 15, 2022. By September 1, 2022, the worker advised the WCB they were doing much better as they had been moved into a different location. On October 21, 2022, the WCB sent a letter to the worker advising as they were working their regular duties and no longer receiving medical treatment, their claim would be closed.

On May 24, 2024, the worker submitted another Worker Incident Report to the WCB indicating they have been struggling for the past 2 years since returning to work. The worker noted they had been using their sick time and had spoken to their managers and others about their declining mental health. The worker noted their treating physician had placed them off work due to their symptoms. A progress report from the worker’s physician for an appointment on May 16, 2024 was received by the WCB. The report noted the worker’s reporting of ongoing symptoms, including anticipatory anxiety regarding going into work and placed the worker off work for 3 months.

The WCB spoke with the worker on May 30, 2024. The worker advised that when they returned to work in August 2022, they were placed in a busy area but had been advised by the employer that they were looking for a quieter accommodation. The worker noted they continued to work but had difficulty and felt overwhelmed. The worker described some specific incidents that occurred and noted that, at times, they would drive to work and not be able to leave their vehicle and ultimately would call in sick from the parking lot. The worker advised that they spoke to their supervisor about their difficulties and to a psychologist employed by the employer, who noted the worker was visibly struggling and treated the worker on an informal basis. The worker described their symptoms as having constant anxiety, sleep difficulties and fear of socializing. The worker’s treating physician had provided the worker with a form noting that they should be moved to a quieter unit but the restriction was denied by the employer. The physician then placed the worker off work until July 29, 2024. On June 4, 2024, the worker provided the WCB with copies of emails they had sent and received from the employer regarding their difficulties. On June 12, 2024, the worker also provided the WCB with a list of the time loss they had from August 26, 2022 to May 17, 2024, which was noted to include vacation, statutory time, and sick time.

An initial assessment from the worker’s treating psychologist was received by the WCB on June 28, 2024. The report noted the worker met with the psychologist on 4 occasions, after which the psychologist provided diagnoses of post-traumatic stress and Other Specified Trauma and Stressor Related Disorder and noted the worker was unable to work at this time due to their symptoms. Ongoing treatment was recommended. The WCB received an email response to questions from the worker’s co-worker on September 15, 2024. The co-worker noted the worker advised them that they were struggling at work as a result of their workplace injury and having difficulty overcoming the symptoms from that injury after returning to work. They described to the co-worker having feelings of anxiety and stress, anger and resentment, hypervigilance and sleep difficulties. The co-worker noted the worker had missed time from work due to those symptoms, including unpaid time due to using up their sick time. The co-worker further noted that the worker advised them their placement in a medical unit was not a good fit for them as they found medical incidents triggered symptoms of their workplace injury. On September 21, 2024, the WCB wrote to the employer (and copied the worker on the correspondence) and advised that a recurrence of the worker’s injury was accepted, based on the worker’s reporting ongoing issues on May 24, 2024. Wage loss benefits were issued from May 15, 2024 to September 27, 2024.

At the request of the WCB and as part of the investigation into the worker’s entitlement to wage loss benefits after August 26, 2022, on September 27, 2024, the worker’s treating family physician provided chart notes for the worker from May 16, 2022 to August 28, 2024. On October 18, 2024, the WCB spoke with the worker. The WCB noted a review of the chart notes from the worker’s treating physician indicated the worker returned to work on August 12, 2022 and was discharged from treatment with their treating psychologist on October 18, 2022. On October 22, 2022, the treating physician noted the worker was “recovering from PTSD (post-traumatic stress disorder).” An April 14, 2023 chart note indicated the worker requested a leave of absence for personal issues and on May 8, 2023, the worker reported depression and anxiety and inability to work due to tightness in their chest. A February 28, 2024 chart note indicated the worker had PTSD and anxiety disorder due to an incident at work. The WCB advised the worker based on the information received, they would be accepting the issues at work from February 28, 2024 and would be paying wage loss from that date. A formal decision letter was provided to the worker setting out they were not entitled to wage loss benefits from August 26, 2022 to February 27, 2024.

The worker’s representative requested reconsideration of the WCB’s decision to the Review Office on December 6, 2024. The representative argued that the worker was entitled to wage loss benefits from August 26, 2022 to February 27, 2024 as the evidence supported the assertion that the worker continued to experience difficulties as a result of the workplace accident. The representative noted the worker reported those difficulties to their supervisor and co-worker and continued to be exposed to incidents of trauma which resulted in the worker being placed off work in May 2024. The employer provided a submission in support of the WCB’s decision to the Review Office on February 4, 2025, a copy of which was provided to the worker’s representative who provided a response on February 12, 2025.

On March 4, 2025, the Review Office determined the worker was not entitled to wage loss benefits from August 26, 2022 to February 27, 2024. The Review Office found the medical information provided did not support the worker required time off due to their symptoms. The Review Office further found that the worker did not report to the employer they required the time off due to difficulties related to the workplace accident or that they were totally disabled due to those difficulties.

The worker’s representative filed an appeal with the Appeal Commission on March 6, 2025, and a hearing was arranged.

Reasons

Applicable Legislation and Policy

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

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.

Accident is defined in s. 1(1) of the Act as follows:

1(1) In this Act, 

"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;

Subsection 37(c) of the Act provides that:

Where, as the result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable: 

… 

(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.

Subsection 39(2)(a) of the Act provides that wage loss benefits are payable until the loss of earning capacity ends.

Worker’s Position

The worker has an accepted claim for a workplace injury. The worker appealed the WCB decision that they are not entitled to wage loss benefits in relation to the workplace injury.

The worker was present at the hearing and represented by a Workers Compensation Specialist, who provided the panel with a written submission prior to the hearing and made an oral submission at the hearing. The worker answered questions posed by their representative and by the members of the appeal panel.

The position of the worker is that, despite returning to their pre-injury employment, they had not recovered from the injury and continued to suffer from symptoms which resulted in time loss from work. The worker states that they should be compensated for the time loss as it was a result of their workplace injury.

The worker’s evidence is that they understood their claim had been closed, and they had no more available sick time, so attempted to keep working, despite experiencing symptoms. The worker states that they were struggling with symptoms of their accepted workplace psychological injury, and they had told their employer and co-workers and a psychologist at their work who spoke with them on several occasions, on an informal basis.

The worker states that although they experienced improvements to their symptoms, they had not fully recovered and had persistent psychological symptoms following their return to work.

The worker submits that their account of their experience is sufficient evidence to prove a loss of earning capacity directly related to the injury.

The worker is seeking that the panel extend further entitlement to wage loss benefits to cover the time loss the worker experienced from August 26, 2022 to February 27, 2024. The worker submits the time loss was due to the effects of their compensable injury which persisted following their return to work and worsened before they reached out to the WCB, which eventually reinstated his benefits as of February 28, 2024.

Employer’s Position

The employer was represented by an advisor at the hearing, who made an oral submission and answered questions posed by members of the appeal panel.

The position of the employer is that the worker is not entitled to wage loss benefits from August 26, 2022 to February 27, 2024, as the evidence does not support that the various dates that the worker missed work are causally related to their January 19, 2022 workplace incident. The employer further submits that there is no medical authorization for an absence from work during the time period in question.

The employer relies on the opinion of the WCB psychiatric consultant, dated August 15, 2022, which states that the worker made a full recovery and returned to full duties. The WCB psychiatric consultant opined that the worker was moved to a new unit and this coincided with symptoms such as low mood, anger, irritability, etc., which did not appear to be related to the worker’s workplace injury, but instead related to the transfer to a new unit.

The employer also relies on the medical evidence of the treating psychologist from October 15, 2022, which provides that the worker was no longer experiencing symptoms of anxiety regarding work. The employer submits that it was not until February 28, 2024 that there was any psychiatric contraindication to continue working.

The employer notes that the worker was advised by the WCB in a letter dated October 21, 2022 to contact the WCB if they experienced any difficulties. The worker did not contact the WCB until May 24, 2024. The employer states that the delay in contacting the WCB makes it difficult to establish a relationship between the worker’s need to take time off and their workplace injury of January 2022.

The employer’s position is that the decision of the Review Office should be upheld.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits for the period from August 26, 2022 to February 27, 2024. For the worker’s appeal to be successful, the panel must find that the worker experienced a loss of wages due to a compensable workplace injury. For the reasons that follow, the panel is not able to make such a finding.

The panel has considered the medical evidence before it. Specifically, that the worker discontinued their sessions with the treating psychologist and that the report from said psychologist dated October 15, 2022 notes that the worker’s functioning significantly improved following treatment and the worker had resumed full-time employment. The worker and the psychologist agreed to discontinue sessions, and the sessions ended in the fall of 2022.

It is noted that the worker is seeking wage loss benefits from August 26, 2022, which is prior to when the worker ended treatment sessions with the psychologist. This would mean that the worker missed time from work which they relate to their injury prior to discontinuing treatment with their treating psychologist. The panel does not find it reasonable that the worker discontinued treatment of their injury if they were still experiencing symptoms causing them to miss work.

The panel has also considered the opinion of the WCB psychiatric consultant which provides that the worker had made a full recovery and associates the difficulties with not being transferred to another unit. The evidence also indicates that the worker suffered from a variety of difficult personal issues as well. The report from the worker’s treating physician from April 24th, 2023 notes several stressors that could have affected the worker’s mental health and ability to work.

The panel has also considered the evidence before it regarding the worker’s lack of reporting.

The panel acknowledges that the worker spoke with their workplace psychologist but this was on an informal basis and therefore, there is no formal report in this regard.

The panel notes that the WCB advised the worker to contact them if the worker experienced difficulties. It is further noted that the worker missed work, and these absences were recorded in a variety of ways (sick, sick without pay, vacation, overtime, etc.), but at no time during the period in question did the worker contact the WCB to initiate a claim regarding their difficulties.

The panel’s ability to find a causal connection between the worker’s time off work and their symptoms is hampered by the worker’s lack of reporting of their symptoms to their employer or the WCB.

The panel acknowledges that the nature of the worker’s employment involved exposure to traumatic incidents which led to the worker’s psychological injury. The accepted WCB claim reflects recognition of the challenging circumstances the worker experienced. However, the accepted claim cannot extend to wage loss benefits for such an extended period in the absence of clear and detailed evidence outlining the specific symptoms or circumstances that necessitated the time off work; evidence which is not before the panel.

Based on the foregoing, the panel is unable to establish a causal relationship between the worker’s time off work and the workplace incident that occurred on January 19, 2022.

The panel finds that the worker’s compensable workplace injury did not cause or contribute to the worker’s loss of wages between August 26, 2022 to February 27, 2024. The worker’s appeal is therefore 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 18th day of July, 2025