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 May 8, 2024; and 

2. They are not entitled to further physiotherapy treatment after May 8, 2024.

A hearing was held on June 10, 2025 to consider the worker's appeal.

Issue

1. Whether or not the worker is entitled to wage loss benefits after May 8, 2024; and 

2. Whether or not the worker is entitled to further physiotherapy treatment after May 8, 2024.

Decision

1. The worker is not entitled to wage loss benefits after May 8, 2024; and 

2. The worker is not entitled to further physiotherapy treatment after May 8, 2024.

Background

The employer submitted an Employer’s Accident Report to the WCB on September 11, 2023 reporting the worker injured their right low back, right hip and right lower leg as the result of an incident at work on September 7, 2023. The employer noted the worker’s reporting of picking up boxes from a lower shelf and hearing a popping noise and feeling a burning sensation in their lower back. The worker then reported their back began spasming and a burning sensation radiated down their back into their buttocks, right hip and thigh. The employer indicated the incident was not witnessed and the worker had returned to work, modifying their duties as necessary. The worker reported attending for physiotherapy treatment.

An initial physiotherapy assessment took place on September 14, 2023, with the worker reporting that on September 7, 2023, they were bending over at work, picking up boxes and feeling a pop. Approximately 20 to 30 minutes later, experiencing numbness/pain radiating in their buttocks and right leg, with the pain radiating to their toe. The worker also reported that the radiating pain had subsided, but they were still experiencing burning pain in their low back and up to their shoulder. The worker also reported an incident of incontinence. Upon examining the worker, the physiotherapist found normal testing except for a positive slump test on the right and diagnosed the worker with a lumbar sprain/strain. The physiotherapist recommended the worker not return to work until the worker’s bladder control incident was investigated by their treating physician.

The worker provided the WCB with a Worker Incident Report on September 15, 2023. The worker reported multiple areas of injury after lifting boxes at work ranging in weight from 10 to 50 pounds from low shelves on September 7, 2023. The worker noted they were squatting and bending underneath a rack to grab boxes, and felt a pop in their lower back, after which they experienced tingling. The worker continued to work but after approximately 10 minutes, began to feel pain in their lower back that radiated into their mid to upper back, their right hip, knee and toes, along with spasms and a burning sensation. The worker stated that it was a busier than normal day for them on that date. They noted their current symptoms were tenderness in the mid-section of their back and numbness with exertion or when sitting or standing for too long.

On September 15, 2023, the WCB contacted the worker to discuss their claim. The worker confirmed the mechanism of injury and noted they returned to work on September 8, 2023, but modified their duties, carrying small and lighter packages. They did note that driving was painful. The worker stated that their current symptoms were pain radiating from their back into their leg and advised that the bladder control issues had subsided. The worker further noted that bending over to put on shoes causes pain to radiate from their shoulder to their buttocks and driving longer distances and sitting in the same position aggravates the pain. The WCB advised the worker that their claim was accepted.

Also on September 15, 2023, the worker attended for an initial appointment with their treating physician reporting back pain with radicular pain down their leg and coincident urinary incontinence after bending over to pick up a box and feeling a pop at work on September 7, 2023. It was recommended the worker attend physiotherapy treatment and return to work on light duties with frequent breaks. A September 21, 2023 physiotherapy progress report noted the worker’s reporting of “…doing a bit better since treatment…” but still experiencing some tingling and radiating pain around their hip when sitting. Lumbar range of motion was noted to be within normal limits with increased lumbar lordosis and a positive right Slump test. Restrictions of lift, push, pull, carry up to 20 pounds occasionally; no sitting/driving for longer than 30 minutes, rest and position changes as needed and 4-hour work shifts were recommended. The worker returned to work on September 25, 2023. On October 10, 2023, the worker contacted the WCB to advise that they were continuing to improve and their work hours had increased to 6 hours per shift. At a follow-up physiotherapy appointment on October 19, 2023, the worker’s restrictions were updated to push/pull/lift/carry up to 35 pounds; limited forward bending with rest and position changes as needed and full regular hours.

On December 12, 2023, the worker attended for an appointment with their treating physician reporting their right lower back was constantly sore, with pain shooting into their right leg. The physician found tight right paraspinal muscles and a positive straight leg raise rest. A lumbosacral and thoracic x-ray taken that date found “No significant degenerative changes are seen in the lumbar or thoracic spine” and it was noted the worker had been referred for a CT scan. The treating physician requested the worker be seen by a WCB physician for recommendations for further treatment. The worker also underwent a lumbar spine MRI study on January 8, 2024. The study found “No significant disc herniation, central canal stenosis, foraminal stenosis or nerve root compromise within the lumbar spine.”

The worker attended the WCB for a call-in examination with a WCB medical advisor on January 30, 2024. After examining the worker, the advisor opined the worker’s diagnosis related to the September 7, 2023 workplace accident was a lumbar strain, with the current diagnosis five months post-injury being non-specific low back pain. The advisor provided that the appropriate treatment for the worker would be continuation of the home exercise program focused on core and spine strengthening. With respect to restrictions, the WCB medical advisor noted that the worker’s treating physician had recommended a further 3 months of restrictions, including limiting lifting, carrying, pulling and pushing to 20 pounds, however, did not provide medical findings to support the requirement for those restrictions. The advisor recommended a period of 1 month for the restrictions. It was noted that a review of the diagnostic imaging would be requested by a WCB radiologist consultant as the worker felt the study may not have been read correctly, which request was made February 7, 2024.

The worker underwent a further lumbar spine CT scan on February 8, 2024. The scan found mild posterior disc bulging at L4-5, “…slightly greater posterior disc bulging with disc material approaching the S1 nerve roots. Either of these nerve roots may be at risk of impingement” at L5-S1, with no bone or face abnormalities seen. The January 8, 2024 MRI study was reviewed by the WCB neuroradiologist on March 5, 2024 and the neuroradiologist concluded that the MRI study was interpreted correctly. A further opinion comparing the January 8, 2024 MRI and the February 8, 2024 CT scan was requested and the WCB neuroradiologist placed their opinion to the worker’s file on April 15, 2024. The neuroradiologist opined “…there has been no interval change between the MRI scan of the lumbar spine date January 8, 2024, and the CT scan of the lumbar spine dated February 8, 2024.” The WCB contacted the worker on April 30, 2024 to advise their entitlement to wage loss benefits and further physiotherapy treatment would end as of May 8, 2024, as it had been determined they had recovered from the compensable sprain/strain injury. A formal decision letter was sent to the worker on May 8, 2024.

On June 6, 2024, the worker’s representative requested reconsideration of the WCB’s decisions to the Review Office. The representative noted the medical evidence on file supported the worker’s injury initially improved but was exacerbated when they returned to their regular duties. The representative further noted the worker’s treating healthcare providers found the worker’s ongoing difficulties and symptoms increased to the point where the worker required further restrictions and as such, required further wage loss benefits and physiotherapy treatment. On July 4, 2024, the Review Office determined the worker was not entitled to wage loss or medical aid benefits after May 8, 2024. The Review Office found the evidence on file supported the worker’s ability to perform their regular duties from the end of October 2023 for a period of 3 months until their treating physician advised they had sustained a disc herniation and required restrictions. In addition, the Review Office found the last medical information from the treating physician dated March 25, 2024 reported that the worker was much improved and had been pain free for 5 days, followed by an April 17, 2024 physiotherapy report indicating significant disability which the Review Office found to not be related to the workplace accident.

The worker’s representative submitted additional medical information including a May 14, 2024 report from a pain clinic physician and an October 2, 2024 report from a physician with an interest in occupational medicine and requested the Review Office reconsider the July 4, 2024 decision that the worker was not entitled to further benefits on November 1, 2024. The May 2024 report from the pain clinic physician noted that the worker was suffering from right-sided low back pain after an injury at work and recommended cognitive behavioural therapy and ongoing physiotherapy as treatment for their chronic pain. The report from the physician with an interest in occupational medicine noted the physician’s diagnosis of a musculoskeletal strain of the lumbar back extensors and recommended ongoing physiotherapy. It was noted that the worker had changed positions with the employer and found the clerical position offered would be preferable for the worker. On December 4, 2024, the employer’s representative provided a submission in response to the request for reconsideration, a copy of which was provided to the parties. The worker’s representative provided a response on December 12, 2024.

The Review Office determined on December 18, 2024 that the worker was not entitled to wage loss benefits after May 8, 2024 but was entitled to medical aid benefits after May 8, 2024. The Review Office accepted and agreed with the opinions of the WCB medical advisors that the worker had recovered from the compensable back sprain/strain and was not entitled to further wage loss benefits after May 8, 2024. With respect to medical aid benefits, the Review Office found the worker had been provided with appropriate physiotherapy treatment for their injury and additional physiotherapy treatment would not provide long term benefit. However, the Review Office found the worker’s pain clinic physician had recommended cognitive behavioural therapy for the worker’s ongoing pain complaints and found coverage for some therapy would be appropriate.

The worker’s representative filed an appeal with the Appeal Commission on January 23, 2025 and a hearing was arranged.

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 that Act and the 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.

Section 4(1) of the Act provides that a worker is entitled to benefits under the Act when it is established that a worker has been injured as a result of an accident at work. When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid as a result of an accident, 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 27 of the Act allows the WCB to provide medical aid “as the board considers necessary to cure and provide relief from an injury resulting from an accident.”

The WCB has established Policy 44.120.10, Medical Aid (the “Policy”) to define key terms and sets out general principles regarding a worker's entitlement to medical aid. The Policy notes that medical aid, as defined in the Act, includes treatment or services provided by healthcare providers. The Policy states that in determining the appropriateness and necessity of medical aid, the Board considers the following:

o Recommendations from recognized healthcare providers; 

o Current scientific evidence about the effectiveness and safety of prescribed / recommended healthcare goods and services; 

o Standards developed by the WCB Healthcare Department.

Worker’s Position

The worker was represented at the hearing by a Worker Advisor, who provided an oral submission to the panel. The worker attended the hearing and provided evidence through answers to questions posed by members of the appeal panel.

The worker’s position is that they are entitled to benefits after May 8, 2024 as the evidence supports a finding that the worker was not capable of a full return to work at that time and had not fully recovered from the injuries sustained in the compensable workplace accident. The worker states that they required further physiotherapy treatment and continued to sustain a loss of earning capacity arising out of the injuries sustained in that accident.

The worker states that they have not fully recovered and continue to have symptoms and continue to need treatment.

The position of the worker is that they sustained a workplace injury in 2022, which did not resolve, nor did they recover from that injury when they sustained an injury in 2023. The worker’s ongoing symptoms are as a result of a combined effect of those accidents.

The worker states that their back difficulties, and the need for treatment, are related to the workplace accident and therefore their entitlement to benefits ought to be extended.

Employer’s Position

The employer was represented in the hearing by an advocate who provided a submission outlining the employer’s position. The employer’s representative made an oral submission and set out their position that the WCB correctly determined that the worker was not entitled to further benefits or further physiotherapy treatment.

The employer’s position is that the available evidence indicates the worker recovered from their compensable workplace injuries by May 8, 2024 and did not sustain a loss of earning after that date. The employer also argues that the worker did not require further medical treatment for those injuries and that there should be no entitlement for further physiotherapy treatment.

The employer argues that the worker has been in a new position and does not have a loss of earning capacity. The employer does not agree with the worker’s position that the question of potential for entitlement or future problems should be considered by the panel.

The employer’s position with respect to further physiotherapy is that the evidence supports that the worker has recovered from the effects of the injury and that there ought to be no further entitlement to benefits.

The employer states the medical evidence is that the worker’s symptoms improved and they were eventually able to work regular duties and hours. Furthermore, the physiotherapy progress reports showed that further in-clinic treatments were no longer necessary. The employer’s position is that the medical evidence and opinions of the WCB physiotherapist and neuroradiologist show that the worker had recovered from the effects of their injuries.

Analysis

Issue 1: The issue before the panel is whether or not the worker is entitled to wage loss benefits after May 8, 2024. For the worker’s appeal to be successful, the panel must find, on a balance of probabilities, that the worker continued to sustain a loss of earning capacity after May 8, 2024 in relation to the injury sustained in the compensable workplace accident of September 7, 2023. As detailed in the reasons that follow, the panel was not able to make such a finding and therefore, the appeal is denied.

The panel considered the medical evidence before it as well as the evidence regarding the worker’s time loss from work. With respect to the latter, the panel notes that the worker largely managed to avoid any time loss from work and successfully secured positions that accommodated any low back difficulties. The worker’s evidence is that they underwent regular treatment from an athletic therapist and physiotherapist. The worker argues that they have not experienced loss of earnings, so there is no wage loss payable, but state that if they are not recovered, and has a loss of earnings, that the WCB should be accepting responsibility for that loss of earning, whether it be anytime after May 8, 2024 or into the future.

The evidence is that the worker was able to work and continued to do so after May 8, 2024. Therefore, the panel’s view is that the worker did not continue to sustain a loss of earning capacity after May 8, 2024. The employer stated that the question before the panel is simple: either there is a loss of earning capacity due to the compensable injury, or there isn't. The panel agrees with the employer and is unwilling to make a determination respecting future and prospective wage loss benefits as is the request of the worker. The potential for entitlement if the worker has any future problems still exists, as the worker has the right to address that issue with the WCB if any difficulties arise.

The panel finds, on a balance of probabilities, that the worker is not entitled to wage loss benefits after May 8, 2024.

Issue 2: The issue before the panel is whether or not the worker is entitled to further physiotherapy treatment. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that further physiotherapy treatment is necessary to cure and provide relief from the worker's injuries resulting from the September 7, 2023 workplace incident. The panel is unable to make that finding, for the reasons that follow.

The panel accepts the worker’s evidence of their continued back pain and symptoms. However, the question before the panel is not whether the worker has recovered, but rather whether further physiotherapy treatment is warranted. The panel has reviewed the medical evidence before it and finds that the evidence does not support the need for continued physiotherapy treatment.

The worker’s diagnosis was back strain. The imaging did not show any significant disc herniation or nerve root compression. Nevertheless, the panel accepts that the workplace injury was more than a strain, and notes the evidence of radiculopathy, incontinence, positive straight leg raise testing, and the presence of a bulging disc. The MRI confirmed a L5-S1 disc bulge. However, regardless of the diagnosis, the panel notes that the worker has undergone many months of physiotherapy treatment. The worker attended physiotherapy from September 2023 to May 2024, and the worker continued going to physiotherapy after coverage from WCB ended.

The panel considered the evidence before it of the worker’s ability to function and that the worker returned to work with full duties. The Physiotherapy Progress Reports from November 24, 2023, December 14, 2023 and Application for Additional Treatment dated January 3, 2024 all note that the worker is capable of regular work duties and hours. The panel also considered the recommendations of the worker’s healthcare providers, including the request on May 17, 2024 for 4 additional treatments (once per week for 4 weeks). The rationale for treatment extension states the treatment is to progress core strength and stability. The panel considers this request to be maintenance, which is not a necessity and could be achieved through the worker’s home program exercises. The panel notes that the physiotherapist stated that the worker’s recovery is satisfactory on the Application for Additional Treatment form. Additionally, the panel relies on the evidence from the worker’s treating physician who noted on a letter dated May 14, 2024 that the worker has chronic pain and that they had discussed and set realistic expectations with the worker in this regard. The panel also relies on the opinion of the WCB medical consultant, in the January 30, 2024 examination notes, who opined that appropriate treatment had been provided.

The panel concludes, on a balance of probabilities, that further in-clinic physiotherapy is not a necessary treatment and has provided the extent of its relief for this worker. The panel also finds that a continuation of a home exercise program is sufficient to provide relief from the injury the worker sustained.

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 8th day of August, 2025