The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

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

1. They are not entitled to wage loss benefits after February 3, 2013; and 

2. They are not entitled to benefits for a diagnosis of complex regional pain syndrome as being a consequence of the March 13, 2007 accident.

A hearing was held on April 29, 2025 to consider the worker's appeal.

Issue

1. Whether or not the worker is entitled to wage loss benefits after February 3, 2013; and 

2. Whether or not the worker is entitled to benefits for a diagnosis of complex regional pain syndrome as being a consequence of the March 13, 2007 accident.

Decision

1. The worker is entitled to wage loss benefits after February 3, 2013; and 

2. The worker is entitled to benefits for a diagnosis of complex regional pain syndrome as being a consequence of the March 13, 2007 accident.

Background

This claim has been the subject of two previous appeals. Please see Appeal Commission Decision Nos. 109/08, dated August 26, 2008, and 23/09, dated February 10, 2009. The background will therefore not be repeated in its entirety.

The worker has an accepted claim with the WCB for an injury to their right ankle that occurred in the course of their duties as a long-haul truck driver on March 13, 2007. A right ankle fracture dislocation was diagnosed and the worker underwent surgery the following day.

The worker continued to report pain, stiffness, difficulty flexing toes to neutral, and hypersensitivity after the injury according to reports of the orthopedic surgeon who conducted the worker’s surgery dated June 12, August 24 and October 19, 2007 and January 11, 2008, with similar reporting from worker’s treating physiotherapist and the WCB physiotherapy consultant dated June 27 and October 9, 2007.

The worker disagreed with the average earnings calculated by the WCB and pursuant to Appeal Commission Decision No. 109/08, the amounts calculated were determined to be correct. In accordance with Appeal Commission Decision No. 23/09, responsibility was accepted for the worker to purchase home exercise equipment to assist in the treatment of their compensable right ankle injury.

On May 14, 2009, the worker’s file was reviewed by a WCB medical advisor who determined the worker’s restrictions were permanent and a vocational rehabilitation plan was developed for the worker. However, prior to the end of the plan, the worker contacted the WCB to advise they had accepted a position unrelated to their pre-injury occupation and would be returning to work.

The worker contacted the WCB again in March 2012 to discuss this claim. The worker noted they had accepted their (then) current position as they could not find employment within the occupation the WCB had determined for them and their vocational rehabilitation plan was coming to end with a reduction in wage loss benefits. The worker noted they had wanted to return to their pre-accident occupation and asked to discuss this further with the WCB as they were experiencing difficulties with their current employer.

The WCB requested and received a report from the worker’s treating physician. The physician noted a review of their chart notes since 2009 indicated the worker attended occasionally reporting difficulties with their right ankle, however, the majority of their appointments concerned issues that were not related to their compensable injury. On April 3, 2012, the WCB provided the worker with a decision letter advising they were not entitled to full wage loss benefits but were entitled to partial wage loss benefits based on their deemed earning capacity.

In June of 2012 the worker was referred for a Pain Management Unit for assessment of a possible pain disorder. The assessment report dated August 30, 2012 indicated that the worker had advised they were asymptomatic at that time and wished to return to their pre-accident employment.

After gathering further information from the worker and their treating healthcare providers, in October 2012, the WCB developed a further vocational rehabilitation plan for the worker to return to their pre-accident employment. The worker contacted the WCB on February 8, 2013 to advise they had obtained full time employment as of February 6, 2013. The worker later sustained a further WCB compensable injury in August 2013 with their new employer and did not return to work, but remained on partial wage loss benefits. The worker’s evidence was that they struggled with their duties and were let go by the employer.

The worker continued to report ongoing difficulties with their right ankle and on December 15, 2015, their treating orthopedic surgeon recommended removal of the hardware in their ankle from the surgery that had taken place on March 14, 2007. Approval of the surgery was provided by the WCB on January 28, 2016 and the procedure took place on April 19, 2016. After the surgery, the WCB authorized a course of physiotherapy to help the worker’s recovery. The worker continued to report hypersensitivity and range of movement issues after the April 19, 2026 surgery and was referred to physiotherapy by the treating orthopedic surgeon on October 18, 2016.

Due to the worker’s ongoing complaints, which then included hip and back pain, the WCB requested the worker attend for a call-in examination, which examination occurred on July 3, 2018. After the examination, the WCB provided the worker with a decision letter on August 21, 2018, advising their ongoing low back and hip difficulties were not related to the March 13, 2007 workplace accident and their permanent restrictions remained unchanged.

On December 5, 2018, as the worker had requested the WCB consider further vocational rehabilitation training, a further decision letter was sent to the worker advising they remained employable within National Occupational Classification (NOC) 7511 Transport Driver and the WCB would not consider further retraining.

On February 12, 2019, the worker requested reconsideration of the WCB’s decision they were employable within NOC 7511 to Review Office. The worker noted in their submission they had previously advised the WCB they were unable to continue working due to the difficulties and instability in their right ankle. At the request of Review Office, the worker’s file was reviewed by a WCB medical advisor on March 13, 2019. The advisor opined that the medical evidence on file did not support the worker’s inability to work as a full-time truck driver within the worker’s permanent physical restrictions. On April 9, 2019, Review Office advised the worker they were returning their file to the WCB’s Compensation Services for further investigation.

The WCB advised the worker on April 24, 2019, that further investigation had determined the worker no longer had a loss of earning capacity with respect to their March 13, 2007 workplace accident and was not entitled to further benefits. It was noted the worker’s wage loss benefits should have been discontinued as of February 3, 2013 as they obtained full time employment as a truck driver on February 6, 2013, and that the resulting overpayment of benefits would be written off as an administrative error. The WCB noted a discretionary decision to provide the worker with a further 12 weeks’ of wage loss benefits to July 17, 2019.

On June 7, 2019, the worker requested reconsideration of several WCB decisions, including the decision they were not entitled to wage loss benefits after February 3, 2013. Review Office determined on July 25, 2019, that the worker was not entitled to benefits after February 3, 2013. Review Office found the medical evidence supported the worker was capable of working within the NOC they were provided with training for by the WCB and they were currently not working due to non-compensable health issues. Review Office further agreed with the decision the worker was not entitled to wage loss benefits after February 3, 2013 and noted they would have been entitled to wage loss benefits for their hardware removal surgery on April 19, 2016 and an appropriate recovery period however, as they had already received wage loss benefits during that period, they were not entitled to further benefits.

The WCB received a copy of an April 29, 2019 report from the worker’s treating neurologist. The neurologist referenced the worker’s reporting of “…chronic associated burning pain and tingling along the medial right foot, including the medial sole, extending along the medial ankle (behind the medial malleolus)…after fracturing their ankle at work in 2007”. The neurologist noted very poor active range of motion in the worker’s right ankle, with restricted passive movement, significant superficial sensitivity (allodynia) in their right medial foot, especially by the medial malleolus, decreased sharp appreciation at the dorsum of the right foot, and that the worker walked with a limp, avoiding right ankle motion and was using a cane. Electrodiagnostic testing found a “…mild demyelinating R (right) superficial peroneal neuropathy noted, no general sensory neuropathy, and no focal distal tibial neuropathy (tarsal tunnel syndrome)…”. The neurologist opined the worker may have “…a manifestation of a version of complex regional pain syndrome, probably more from a MSK [muskoskeletal] basis, rather than a likely neurogenic lesion.” An MRI was recommended for the worker’s lumbar spine.

The medical information on the worker’s file, including a February 14, 2019 MRI study of the worker’s right ankle which indicated “Defects consistent with previous ORIF (open reduction internal fixation). No tendinous abnormalities confirmed”, was reviewed by a WCB medical advisor on January 2, 2020. The advisor noted the worker continued to make ongoing complaints of chronic ankle pain and that the worker’s treating orthopedic specialist had suggested a diagnosis of complex regional pain syndrome (CRPS) for the worker but had not set out the diagnostic criteria for same. The advisor further noted the treating specialist had not provided clinical findings except for ongoing pain and the MRI did not indicate any pathology to explain the worker’s reporting of pain.

On January 3, 2020, the WCB provided the worker with a decision letter advising there was no objective medical information to support a diagnosis of CRPS. Additional medical information was provided by the worker after an appointment with their treating neurologist. The information was reviewed by a WCB medical advisor on February 26, 2024, who again opined the neurologist did not provide clinical evidence to support a CRPS diagnosis. The WCB advised the worker on February 29, 2024, there would be no change to the previous decision that they were not entitled to benefits related to a diagnosis of CRPS. A further letter was sent to the worker on March 18, 2024 after a further WCB medical advisor review of new medical information provided which confirmed the WCB decision and indicated that all claim decisions would remain the same because the WCB was “…not able to make the determination that your current difficulties are related to your 2007 claim…”.

On June 19, 2024, the worker’s representative requested reconsideration by the Review Office of the WCB’s decision the worker was not entitled to further benefits. The representative noted the worker’s treating healthcare providers supported that the worker’s right ankle/foot difficulties were as a result of CRPS and as such, the worker should be entitled to further benefits.

Review Office found on August 14, 2024, the worker was not entitled to benefits in regard to a diagnosis of CRPS. Review Office determined the medical evidence submitted by the worker’s treating healthcare providers queried if the worker had a diagnosis of CRPS but did not provide clinical evidence to support a diagnosis of same. Review Office further found the worker had not attended for and had cancelled several attempts by the WCB to arrange for call-in examinations and had not attended for an MRI study of their lower back as requested by their treating neurologist in September 2019, with that neurologist also raising the possibility of CRPS.

The worker’s representative filed an appeal of all issues to the Appeal Commission on December 16, 2024 and a hearing was arranged. Further reports from the worker’s pain clinic physician dated November 8 and December 6, 2024 were submitted in support. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received in the form of a letter from the worker’s treating pain clinic physician dated May 26, 2025 and was forwarded to the interested parties for comment. On June 24, 2025, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

Applicable Legislation and Policy

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. The provisions of the Act in effect at the time of the accident are relevant.

Section 4(1) of the Act entitles a worker to compensation when it is established that they sustained personal injury because of an accident at work. Section 4(2) provides that 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 date 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.

Worker’s Position

The worker appeared at the hearing with a worker representative who presented arguments on their behalf.

The worker’s position is that they continued to be entitled to wage loss benefits after February 3, 2013, at which time the worker returned to work, for a period, in their pre-accident occupation. The worker representative argued that even if the worker’s return to truck driving in 2013 established their employability at that time, this did not mean that the worker maintained the ability to carry on in such employment moving forward.

The worker advisor noted that the worker had advised the WCB on many occasions after the 2013 return to work, and the medical evidence supports, that their ankle injury continued causing difficulty to the point that the worker was unable to work as a truck driver, including reports of pain, difficulty walking and problems bending their foot to shift gears.

The worker representative also noted the worker’s limited experience and lack of seniority as a truck driver prior to their 2007 accident, the gap between the accident and the worker’s attempted return to work, and the worker’s restrictions as a result of the 2007 accident as barriers to employability.

The worker representative argued further that the WCB had not investigated the employability of the worker after February 3, 2023, including from the time the worker’s hardware surgery removal was first discussed in or about 2014, despite the fact that WCB identified the 2016 surgery as being related to the compensable injury.

With respect to the issue of CRPS, the worker advisor argued that it was not appropriate for the WCB and Review Office to prefer the opinions of WCB consultants who had not examined the worker personally over the conclusions of worker’s own health care providers. The WCB consultants had indicated that the diagnostic requirements for CRPS were not made out by the treating physicians, and that the WCB consultants had not been able to examine the worker in order to make their own determination. The worker argued that the diagnostic requirements for CRPS had been made out by the treating physicians who personally examined the worker, and that it was not necessary for the WCB to independently make their own determination.

The worker disagreed with the Review Office finding that the medical information on file from the worker’s physician specialists from April 3 and 29, 2019 and May 15, 2019 referring the worker to a pain clinic represented only “queries” of CRPS, not a diagnosis, and argued that even if those reports, and the subsequent pain clinic report dated January 23, 2020, describing “late CRPS”, were only queries, they no longer remained so by the time of subsequent reports dated July 26, 2021 and March 8, 2024.

The worker advisor argued further that the additional reports from the treating pain clinic physician dated November 8, 2024 and December 6, 2024 confirmed the diagnosis and supported the connection between the workplace accident and the development of CRPS. The worker reasoned that the treating pain clinic physician opinion should command the most weight regarding the issue of CRPS because of the pain clinic physician’s expertise, the personal examinations which confirmed “telltale features of a late CRPS”, and the explanation that the late stages of CRPS “can typically be associated with minimal clinical findings”.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The questions on appeal are whether the worker is entitled to benefits after February 3, 2013 and whether the worker is entitled to benefits for a diagnosis of complex regional pain syndrome as being a consequence of the March 13, 2007 accident.

For the worker’s appeal to succeed with respect to the first question, the panel would have to determine that the worker continued to sustain a loss of earning capacity or to require medical aid after February 3, 2013 as a result of the compensable injury of March 13, 2007.

For the workers’ appeal to succeed on the second question, the panel would have to determine that the medical evidence before it supports a diagnosis of complex regional pain syndrome as being a consequence of the March 13, 2007 accident.

For the reasons that follow, the panel is able to answer both questions in the affirmative and the worker’s appeal is therefore successful.

The issues under appeal were presented to the panel in order, first, of the entitlement to benefits after February 3, 2013 and, second, of the entitlement to benefits based on a diagnosis of CRPS as a consequence of the compensable injury. The panel is of the view that the answer to the second question has a bearing on the answer to the first, and therefore this decision will first address the question of whether the worker is entitled to benefits for a diagnosis of CRPS as a consequence of the March 13, 2007 accident.

#1 Whether the worker is entitled to benefits for a diagnosis of CRPS as a consequence of the March 13, 2007 accident.

The Review Office, in the decision of August 14, 2024, determined that the information on file did not establish a diagnosis of CRPS for the worker. The Review Office found that no doctor involved the treatment of the worker had definitively indicated or provided evidence that the worker has CRPS, while acknowledging that several doctors, including neurologists, had queried the diagnosis.

The Review Office accepted the opinion of a WCB orthopedic consultant dated January 2, 2020, which indicated that “Diagnostic criteria for this diagnosis are not established” and “The attending neurologist reported no other clinical findings apart from reported pain. MRI does not report any pathology to explain the subjective reports of pain”.

The panel notes that this WCB consultant opinion pre-dates reports from the worker’s treating physicians which described the worker’s symptoms, physician observations, and the likely diagnosis.

A report dated January 23, 2020 from the worker’s treating pain specialist described the worker’s reported symptoms (pain, burning, hypersensitivity over the affected area, stiffness and lack or dorsification) and indicated that the worker was observed to exhibit dicolouration in the affected foot, cooler temperature than the other foot, and a slight thickening of the nail bed, especially of the great right toe. The report described “ongoing severe pain of a neuropathic quality” which “…may be a late complex regional pain syndrome as [the worker] does have some of the telltale features.”.

A further report from the pain specialist dated July 26, 2021 indicated, “It is likely that this is a late complex regional pain syndrome giving her neuropathic pain complaints… This is likely to be an ongoing, permanent problem with significant disability associated with this.”

An additional report from the pain specialist dated March 8, 2024 indicated that the worker “continues to be managed for late stages of a complex regional pain syndrome”.

The Review Office found that these reports did not sufficiently establish a diagnosis of CRPS for the worker. The Review Office accepted and placed significant weight on the WCB orthopaedic consultant’s opinion of February 26, 2024, which stated:

It is noted that the worker repeatedly cancelled Call-in appointments over a significant period of time, which meant the WCB Consultant had no opportunity to address this information. The diagnosis of CRPS was never established. The Neurologist, the Foot-Ankle O/S, and the Pain Specialist have not provided any convincing clinical evidence to support this diagnosis…The information reviewed above does not support a diagnosis of CRPS arising out of the compensable diagnosis and its management.

The panel is aware that the worker cancelled or missed some call-in appointments with WCB consultants from April through September of 2022. However, we are not of the view that the worker’s non-attendance disentitles the worker to the diagnosis reported by their treating health care providers, in light of the medical evidence provided in support of the diagnosis.

The panel accepts the worker’s argument that even if the “queries” of CRPS which began in April of 2019 did not rise to the level of a diagnosis at that time, the diagnosis was confirmed by the time of the pain specialist’s reports dated July 26, 2021 and March 8, 2024.

Further medical evidence was presented to WCB after the Review Office decision was issued on August 14, 2024. A report from the worker’s treating pain specialist dated November 8, 2024 reiterated the worker’s diagnosis and symptoms and added, “…the late stages of complex regional pain syndrome hand [sic] typically be associated with minimal findings including lack of significant swelling, trophic changes, or sudomotor signs.”. And on the subject of the worker’s prognosis and employability in their pre-accident occupation, “I think that as [the worker] has had this problem for several years now without improvement in [their] symptoms that this is a permanent problem. It would not allow [them] to work in [their]capacity as a truck driver.”

The pain specialist’s report dated December 6, 2024, indicated, “…regarding the cause and effect related to the ankle fracture of 2007, I can only surmise based on [their] history that this [CRPS] is the likely causal effect. I cannot be absolutely 100% certain, but [they were] fine prior to the fracture and subsequent surgery and has since been troubled by the persistent pain.”

The pain specialist’s letter dated May 26, 2025, received and reviewed by the panel after the hearing, again reiterated the worker’s symptoms and confirmed, “With these in mind it appeared to be related to complex regional pain syndrome. As per my note previously it appeared the late stages of a complex regional pain syndrome when reviewed [sic] [them]. Based on [their] history and physical findings I concluded that [they were] suffering from a complex regional pain syndrome.”

The panel is satisfied that the medical evidence establishes a diagnosis of CRPS in relation to the compensable injury for this worker. In reaching this determination the panel noted that queries regarding neuropathic pain disorders, including CRPS, began almost immediately after the worker’s surgery in 2007 in a discussion between the WCB consultant and treating physiotherapists on June 27, 2007, in 2012 (pain assessment referral) and in 2016 (post-surgical report of October 18, 2016). Those queries were not thoroughly investigated at the time.

Having accepted the worker’s diagnosis of CRPS, the panel is required to determine whether the diagnosis is related to the compensable injury which occurred on March 13, 2007. Based on the medical evidence provided by the worker’s treating pain specialist, the panel is able to find, on the balance of probabilities, that the compensable injury of March 13, 2007 is the cause of the worker’s CRPS diagnosis. The worker is therefore entitled to benefits for a diagnosis of CRPS as a consequence of the March 13, 2007 accident.

#2 Whether the worker is entitled to wage loss benefits after February 3, 2013.

The second issue under appeal is whether the worker is entitled to wage benefits after February 3, 2013. The question for the panel is whether the worker suffered a loss of earning capacity after February 3, 2013 as a result of the compensable injury.

On the worker’s appeal of this issue, the Review Office correctly noted in their decision dated July 24, 2019 that the worker returned to work as a truck driver in February of 2013. However, the evidence on file establishes that the attempt was short-lived, lasting only about six months, after which time the worker suffered another injury, unrelated to their 2007 compensable injury. Although the new injury resolved quickly, the worker was let go from their position as they had struggled with their duties. They did not return to work as a truck driver thereafter. The WCB resumed paying the worker wage loss benefits.

The panel accepts the worker’s argument that their ability to return to truck driving for a short period in 2013 did not establish their ability to work at that employment indefinitely. The panel notes an abundance of medical information on file after February of 2013 which confirms that the worker continued to complain of the effects of the compensable injury after their attempted return to truck driving, and was not recovered. The panel accepts the worker’s argument that WCB did not sufficiently investigate the worker’s employability after 2013 based on the available medical evidence.

The panel also accepts the argument of the worker advisor that the continued WCB restrictions placed on the worker, as well as the compensable hardware removal surgery which took place in April of 2016, support a finding that the worker was not recovered and continued to experience loss of earning capacity after February 3, 2013.

In its consideration of wage loss benefits after February 3, 2013, the panel has also noted the consistency of the worker’s symptoms over the duration of their claim. The medical evidence establishes that beginning very shortly after the initial surgery in 2007, the worker’s medical reports consistently referenced hypersensitivity over the injured area, hyperextension of the toes (inability to flex to neutral without difficulty), pain and clicking, and other related complaints. The reports of the worker’s symptoms remained remarkably similar after 2007, and after 2013.

The panel is therefore of the view that, on a balance of probabilities, the worker continued to experience a loss of earning capacity as a result of the compensable injury after February 3, 2013. The worker is therefore entitled to wage loss benefits after February 3, 2013.

Panel Members

M. Murray, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. Murray - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 31st day of July, 2025