The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker appealed the Workers Compensation Board ("WCB") decision that they are not entitled to further benefits in relation to the back injury. A file review took place on August 13, 2025 to consider and determine the worker's appeal.

Issue

Is the worker entitled to further benefits in relation to the back injury?

Decision

The worker is not entitled to further benefits in relation to the back injury.

Background

The WCB accepted the worker’s claim in relation to a back injury sustained at work on March 23, 2009 upon lifting a heavy object. Based on the initial diagnosis of back strain, the WCB provided benefits including medical treatment and compensation for wage loss. On May 2, 2011, the WCB advised the worker by letter that it determined they had recovered from the compensable low back strain injury and as a result, their entitlement to benefits would end on May 6, 2011.

Following a meeting with the worker on May 9, 2011, the WCB re-instated benefits pending further investigations. After the WCB received reports from the medical investigations, including a psychiatric assessment of October 6, 2011, the WCB accepted that the worker also developed Major Depressive Disorder (“MDD”) arising out of the workplace accident. Subsequent medical reports to the WCB outlined mostly the treatment provided in relation to the MDD diagnosis.

On April 24, 2016, a WCB medical advisor reviewed the worker’s file and provided an opinion that the worker’s current diagnosis in relation to their back was non-specific low back pain with bilateral radicular features. The medical advisor concluded this diagnosis was not related to the workplace accident, confirming the previous WCB medical advisor opinions of April 13, 2011 and October 24, 2011.

On November 4, 2021, a WCB rehabilitation specialist, reviewing the worker’s personal care allowance requirements, noted the worker’s report of sharp low back pain with numbness radiating into their lower extremities and that the worker related these symptoms to the workplace accident. In response to a request on behalf of the worker that the WCB approve certain home renovations to address needs arising from their lower back pain, the WCB wrote to the worker on November 10, 2021 confirming that the only accepted and active diagnosis on the worker’s file was MDD.

In August 2023, the WCB advised the worker that their wage loss benefits would end when they reached 65 years of age, but confirmed the worker continued to be entitled to further medical aid after that date. In September 2023 the WCB advised the worker they were entitled to a permanent partial impairment rating and associated monetary award in relation to their psychological injury and later confirmed that this rating and award did not relate to the worker’s ongoing back difficulties as these did not arise out of the 2009 workplace accident. By letter of December 6, 2023, the WCB confirmed there was no change to the May 2, 2011 decision that the worker recovered from the low back strain sustained in the workplace accident and was not entitled to benefits after May 6, 2011 in relation to that injury.

On January 12, 2024, the worker’s representative requested Review Office reconsider the WCB’s decision that the worker was not entitled to further benefits in relation to the back injury. Review Office determined on February 12, 2024 that the worker was not entitled to further benefits in relation to the back injury as the worker had recovered from the back sprain/strain injury sustained on March 23, 2009 and their ongoing difficulties did not relate to that accident.

The worker’s representative filed an appeal with the Appeal Commission on April 17, 2025 and a file review took place on August 13, 2025.

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 and WCB policies in effect as of the date accident apply.

A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Under s 4(2), a worker injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

When the WCB determines that because of a workplace accident, a worker has a loss of earning capacity, an impairment or requires medical aid, compensation is payable under s 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 outlines that the WCB may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident.

The WCB established Policy 44.10.20.10, Pre-existing Conditions (the "Pre-existing Policy"), which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Policy is identified, in part, as follows:

The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

The Policy defines a pre-existing condition as a medical condition that existed prior to the compensable injury and provides that when a worker’s loss of earning capacity is caused in part by a compensable injury and in part by a non-compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury.

Worker’s Position

A worker advisor represented the worker in the appeal and set out their position in a written submission provided to the Appeal Commission on August 5, 2025.

The worker’s position is that the evidence does not support the WCB’s decision that the worker recovered from their low back injury when it discontinued benefits in relation to that injury in May 2011, but that the worker continues to experience the effects of that injury to the present and therefore is entitled to further benefits in relation to that injury.

The representative submitted that the treatment providers related the worker’s symptoms to the disc herniation and annular tear at L4-L5 and to the disc protrusion and spondylolysis at L5-S1. The worker’s representative pointed to the fact that the worker’s injury did not respond to conservative treatment and that the worker was unwilling to proceed with the proposed fusion surgery and noted the continuity of reporting of lower back pain with bilateral leg symptoms since the claim began. As such, the worker should be entitled to further benefits in relation to their back injury.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The worker’s appeal requires the panel to consider whether the worker is entitled to further benefits in relation to the back injury sustained in the workplace accident of March 23, 2009. For this appeal to succeed, the panel would have to find the worker continued to require medical aid or sustained a further loss of earning capacity as a result of the back injury or suffered a permanent impairment as a result of that back injury. As detailed in the reasons that follow, the panel was unable to make such findings and therefore the worker’s appeal is denied.

As the WCB determined in early May 2011 that the worker recovered from their compensable back strain injury, the panel reviewed and considered, in particular, the medical reporting from the worker’s treatment providers in relation to their back condition around that time. We noted the diagnostic imaging from July 2010 indicated no change in the lumbar area from earlier imaging in May 2009. Investigations by the treating physiatrist in 2010 indicated negative findings in relation to a possible diagnosis of cauda equina syndrome. The consulting neurosurgeon, in March 2011, indicated the diagnostic imaging confirmed degenerative disc disease at the L4-L5 and L5-S1 levels of the worker’s lumbar spine, with a disc bulge and L5-S1 and bilateral spondylosis at L5, with no obvious cause and no listhesis. Further imaging dated March 16, 2011 indicated “very minor anterolisthesis of L5 on S1 which is stable with limited flexion and extension…[and] bilateral pars defects at the L5 level” with no other abnormalities noted. The panel also noted that throughout this period, the treating family doctor continued to report no neurological symptoms and normal back range of motion.

The panel also considered that on May 12, 2011, the treating physiatrist confirmed to a WCB medical advisor that the worker’s cauda equina symptoms “…were likely related to a chemical irritation of the worker’s lower lumbar spinal cord/nerve roots following the December 1, 2009 right L5 transforaminal steroid injection” and that “spondylolysis without spondylolisthesis would be unlikely to provide symptoms into the lower limbs.” The physiatrist also noted that the worker was not coping well with their reported low back symptoms and was “likely depressed and that nonstructural/environmental issues are a factor in [the worker’s] overall clinical presentation.” We further noted that a lumbosacral bone scan undertaken on May 30, 2011 indicated no significant uptake in the regions of the bilateral pars defects and moderate focal uptake at the S1 level involving the upper endplate which “may represent some endplate degenerative changes.”

Based on the evidence from the treating and consulting professionals, the panel is satisfied that the worker’s low back injury occurred in an environment of lumbosacral degenerative changes, and while there is no evidence of previous low back symptoms, we find it probable that these degenerative changes pre-dated the workplace accident and could not have developed within the brief period between the date of the accident and the initial MRI imaging on May 1, 2009. As such, we are satisfied that these conditions are pre-existing and unrelated to the injury sustained in the workplace accident.

The panel’s finding in this regard is further supported by the opinions offered by the WCB medical advisors who assessed the worker in call-in examinations and reviewed the medical reporting. As early as August 2010, the WCB medical advisor concluded that the worker’s “general low back pain” was related to the degenerative findings indicated in the diagnostic imaging, and that the clinical examination further indicated some exaggeration of symptoms and complaints by the worker. A WCB orthopedic advisor noted on April 15, 2011 that the L4-5 disc protrusion and annular tear were not causing radicular symptoms and could not be related to the compensable injury, which remained a low back strain. Further the medical advisor confirmed that there was no confirmation of the diagnosis of cauda equina syndrome or compression, and as such a causal relationship between the accident and the possible diagnosis was not addressed. A call-in examination by another WCB orthopedic advisor on June 29, 2011 confirmed the absence of any neurological deficit in the worker’s lower limbs and noted significant pain behaviour with no “particular anatomic structure as a cause of pain generation.” Further, the orthopedic advisor agreed that the spondylosis at the L4-L5 level was “undoubtedly of developmental and not recent in origin” and that the lumbar disc lesion at that level was small and “would not be generally considered to be the source of the widespread symptoms” as reported by the worker. A further opinion by the orthopedic advisor on October 26, 2011 concluded:

“It has not been possible to define an orthopaedic diagnosis to explain subjective complaints and clinical presentation. …The clinical presentation at call-in examination was not consistent with spinal pathology. Imaging appearances of spondylolysis and a tiny disc protrusion are inconsistent with clinical findings. …Symptoms of low back pain and lower limb pain cannot be demonstrated to be related to a workplace injury.”

Subsequent imaging in 2011 and 2012 does not demonstrate any notable change in or progression of these findings, although the treating professionals continue to describe the worker’s chronic “mechanical and neuropathic” lumbosacral pain. The panel also noted the lack of medical reporting in relation to the worker’s low back complaints in the evidence in relation to the period after March 2016.

We are satisfied by the evidence that the worker sustained a lower back strain injury on March 23, 2009 and that this occurred in an environment of pre-existing degeneration in the worker’s lumbosacral spine. The panel further finds that the medical evidence as a whole does not support the worker’s position that their continuing low back and lower limb symptoms were a result of and arising out of the compensable back sprain injury of March 23, 2009. While there is evidence that the worker continued to report symptoms well beyond May 2011, the panel does not accept that the reported symptoms were related to the initial sprain injury. We are satisfied that the worker would have recovered from the effects of the low back strain injury sustained at that time by May 2011 when the WCB determined that to be the case. Further, we are satisfied that there is no evidence to support a finding that the worker’s pre-existing low back condition was enhanced as a result of the workplace accident.

Based on the evidence before the panel, and on the standard of a balance of probabilities, we find that the worker is not entitled to further benefits in relation to the back injury. Therefore, the appeal is denied.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
P. Kraychuk, Commissioner

Recording Secretary, R. LaFrance

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 21st day of August, 2025