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 benefits after October 30, 2023. A hearing was held on May 14, 2025 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after October 30, 2023.

Decision

The worker is not entitled to benefits after October 30, 2023.

Background

The worker filed a Worker Incident Report with the WCB on February 25, 2022, reporting that on February 21, 2022, they injured their neck, back, hip and arm after they slipped and fell down a flight of approximately 4 stairs. They further described:

I was holding on with my left hand the stair rail. Then my right hand I had a bag because I bought food from lunch. I just fell suddenly as the foot landed I lost my footing completely and I just flipped onto my back and on top of the stairs. I got bruising that shows the line of the steps. The worst is on my buttocks on the right side. I can feel the line across my ribs in the back. It’s like I hit every one of the stair (sic). Like my personal belongings went everywhere, the food went out of the packaging. I was crying right away because the landing was so painful. Someone came running out because it’s the staff lunch room right there so people saw me fall.

The worker was taken to a local urgent care facility on the same date where they reported the slipping and falling on their back, striking their head. The treating physician noted the worker’s reporting of being able to get up immediately after the fall, with pain to the right side of their neck and elbow and burning sensation to their neck and right ear. Midline back and neck pain was noted along with twitching to their right paraspinal back. It was also noted the worker reported feeling nauseated and dizzy, sensitive to light, pain around their eyes and feeling like their balance was off. The worker also reported finishing their shift after the fall, including working on a computer, but noted difficulty. A past medical history of migraines and concussion was indicated. On examining the worker, the physician found both pupils had equal reaction to light, a grossly normal neurological examination, normal range of motion in the cervical spine, steady gait and normal motor strength sensation. Heel-to-toe forward and backwards motion was normal but the physician noted the worker was unsteady with their eyes closed. Range of motion in the worker’s elbow and left knee was found to be full and both were found to be neurovascularly intact. The worker was diagnosed with a concussion and it was recommended they remain off work for 1 week.

On February 22, 2022, the worker sought chiropractic treatment, reporting headache, dizziness, nausea, neck, upper and lower back pain and elbow pain. After examining the worker, the treating chiropractor diagnosed a cervical/thoracic/lumbar sprain, concussion and right elbow sprain. The worker attended for an initial physiotherapy assessment on February 24, 2022, reporting bruising to their low back and arm and rib pain, dizziness, poor sleep, initial vomiting, headaches and pain to their neck, right arm and low back after slipping on icy stairs, hitting their head, right side of their body and low back/buttock area on February 21, 2022. The treating physiotherapist diagnosed the worker with a cervicothoracic/right wrist/arm sprain/strain after finding decreased neck rotation/side flexion, right arm flexion, right wrist flexion/extension, right lumbar side flexion and flexion, and right hip flexion. It was recommended the worker remain off work until a further assessment could be completed. The worker attended for an initial appointment with their family physician on February 25, 2022, reporting right-sided pain, bruising and tenderness to their right elbow, headache, nausea and vomiting. Tenderness over the worker’s right buttock and elbow were noted, with good range of motion in both areas. Diagnoses of right sided buttock bruising, right sided rib pain and concussion were provided and it was recommended the worker remain off work. The worker’s WCB claim was accepted.

On March 7, 2022, the WCB contacted the worker to discuss the claim. The worker described their current symptoms as being light-headed, dizzy, headache, light and noise sensitivity. The worker advised they had been seen by a physician at the concussion clinic who advised the worker they had a concussion, and that the worker’s eyes were not focused such that the worker would require vestibular therapy, an eye specialist, and eye therapy.

A report from the neurologist who treated the worker at the concussion clinic on March 2, 2022, was received by the WCB. The report indicated the worker was being seen in follow-up treatment due to a history of migraines and dizziness and set out the worker’s previous history of concussions. The treating neurologist noted the worker had post-concussion syndrome and had also fallen in December 2020, which fall had worsened their symptoms. It was noted the most recent fall in February 2022 had caused a significant worsening of the worker’s concussion “…with convergence insufficiency, worsening of her headache, vestibular problems, vision change and mood problem”.

The worker’s file was reviewed by a WCB sports medicine consultant on March 15, 2022 who opined “There is no medical evidence of a disruption in brain function as a result of the workplace injury, in terms of neurocognitive deficit, amnesia or loss of/alteration of consciousness.” On March 28, 2022, the WCB provided the worker with a decision letter advising responsibility would not be accepted for the diagnosis of a concussion with respect to the February 21, 2022 workplace accident.

A follow-up report from the worker’s treating neurologist for an appointment on April 7, 2022 was received and noted their symptoms had not improved since the last appointment and the worker continued to experience nausea, dizziness, imbalance, loss of memory, and ringing in their left ear. The worker was also seen by their treating physician on April 18, 2022 reporting ongoing but improving low back pain, headache, right arm pain and dizzy spells. The physician found tenderness over the lumbar spine and right arm and diagnosed the worker with a concussion, neck sprain and low back musculoskeletal pain.

On May 5, 2022, the worker attended for an initial assessment with a vestibular physiotherapist. The treating physiotherapist recorded the worker’s reporting of dizziness, pain in their eyes, tinnitus, headache, sore neck, hip and elbow, fatigue, decreased function and nausea. After examining the worker, the physiotherapist diagnosed the worker with bilateral benign paroxysmal positional vertigo and post-concussion vestibular dysfunction.

The worker attended a call-in examination with a WCB sports medicine consultant on May 17, 2022. After examining the worker, the consultant noted the worker recounted the history of the workplace accident “…with little room for questioning or interjection by the examiner.” It was further noted the worker “…demonstrated normal gait and normal tandem walking”, along with “…full flexion and extension of the low back and neck” and was able to perform a full squat. It was further noted however, that at that point in the examination, the worker became nauseous and the examination ended. The consultant recommended a medical opinion be obtained from a WCB neuropsychologist. In addition, it was recommended an opinion from a WCB neuro-ophthalmologist be requested to determine if there had been a significant change in the worker’s neuro-ophthalmological findings before and after the February 21, 2022 workplace accident.

A June 3, 2022 report from the worker’s treating physician indicated the worker had ongoing headaches and vision changes but noted the worker was able to return to work on modified duties on June 13, 2022, at 4 hours per day, for 2 days per week for 2 weeks. It was noted the worker returned to work on June 14, 2022.

The WCB neuro-ophthalmology consultant placed their opinion to the worker’s file on August 11, 2022. The consultant opined the mechanism of injury of falling backwards and striking their head, along with the reported alteration of consciousness at the time of the February 21, 2022 workplace accident supported the diagnosis of a concussion. After review of the ophthalmology reports on the worker’s file, the consultant further opined there was no material change in the worker’s neuro-ophthalmological findings after the workplace accident.

On August 17, 2022, a WCB rehabilitation specialist met with the worker to perform an independent living and personal care assessment after the worker reported difficulties with the activities of daily living to the WCB. The WCB advised the employer on August 24, 2022, the worker was to stop their return to work plan effective immediately due to ongoing symptoms. On August 29, 2022, the WCB advised the worker of their independent living and personal care allowances based on the recommendations of the WCB rehabilitation specialist. The worker’s WCB case manager met with the worker on September 28, 2022 and noted the worker’s ongoing symptoms and difficulties. In a discussion with the employer, the WCB case manager indicated the worker would not be able to work on a computer if they returned to work, with the employer advising they would not be able to accommodate that restriction.

The worker attended an appointment with a neuropsychologist on December 7, 2022 at the request of the WCB, who placed their report to the worker’s file on December 16, 2022. The neuropsychologist opined the results of the testing found no significant change to the worker’s cognitive functioning compared to testing conducted in 2015 and noted the results to be consistent with or better than the results of the previous testing. In addition, the neuropsychologist provided that the worker did not exhibit any obvious residual cognitive symptoms from the concussion at this time but did indicate the most significant barrier to the worker’s return to work were the worker’s reported headaches, ongoing symptoms of neck and back pain and symptoms of dizziness and nausea the worker reported as ongoing symptoms of visual disturbance.

Discussions began regarding the worker returning to work, with the worker’s treating physiotherapist agreeing that it would be beneficial for the worker’s recovery. On February 24, 2023, the WCB advised the worker that as they had been approved to start a return to work program by their treating physician, the WCB had arranged for an occupational therapist to work with the worker as they transitioned back to work. The employer advised the WCB the worker would return to work on a graduated based starting on March 23, 2023 on modified hours and duties of 3 hour shifts, 2 times per week. On April 4, 2023, the worker contacted the WCB to advise they were very sick with a migraine since their last shift and they could not attend work that day. On April 6, 2023, the worker further advised the WCB they continued to have a migraine and were unable to work that day. They further advised they had attended their treating physician’s office the day before and were given medication that was helping. They noted they would return to work on April 11, 2023.

On April 27, 2023, an occupational therapist conducted an ergonomic assessment of the worker’s temporary work station and recommendations were made in the report placed to the worker’s file on May 11, 2023. In a discussion with the WCB on May 16, 2023, the worker indicated they were enjoying being back at work and that the employer was doing well accommodating them.

A report from the worker’s treating optometrist for an appointment on May 19, 2023 was placed to the worker’s file on June 2, 2023. The treating optometrist provided a detailed report and noted the worker had a visual deficiency, and their “…overall level of skills can be characterized as below average.” It was noted the worker had post-concussion syndrome with the related conditions of binocular instability and mild peripheral motion sensitivity.

In memorandums to the worker's file dated July 4, 2023 and July 25, 2023, a WCB neuro-ophthalmology consultant opined that the May 19, 2023 report from the treating optometrist did not include any findings that would change the previous August 11, 2022 opinion there was no change to the worker's neuro-ophthalmological findings after the February 21, 2022 workplace accident. Further, on July 25, 2023, the consultant noted the clinical findings indicated the worker had "…normal visual acuity in both eyes and normal eye movement function, including normal binocular (both eyes working together) function" and provided that the worker's current reported symptom of dizziness was not medically accounted for in relation to their vision, which was functioning normally.

At the request of the WCB, the worker attended for a call-in examination with the WCB's Ear, Nose and Throat (ENT) specialist and Chief Medical Officer on August 23, 2023. After the assessment, which included an "…informal evaluation of eye movements, formal evaluation of extraocular motions and during the Dix-Hallpike provocative maneuver for features of vestibular pathology…" the specialist and the Chief Medical Officer provided "In the absence of a history of vertigo as well as absence of current physical findings indicative of impairment of the vestibular system, it is concluded that [the worker's] reported dizziness and associated symptoms are not emanating from some type of abnormality in [their] vestibular system."

On October 23, 2023, the WCB advised the worker it had been determined their current symptoms were not medically accounted for in relation to the February 21, 2022 workplace accident and they were not entitled to benefits after October 30, 2023. The worker's representative requested reconsideration of the WCB's decision to Review Office on February 21, 2024. In their submission, the representative noted the worker returned to their pre-accident position and job site on November 9, 2023 on a graduated basis, however, the employer ended the return to work program on January 29, 2024 due to the worker's symptoms, including "…struggling with critical thinking, having difficulty following verbal and written directions, struggled with simple tasks, prolonged time spend [sic] on the same, was having challenges with multitasking, recalling details of recent conversations and having difficulty completing familiar tasks." The representative indicated this information supported the worker had not recovered from the compensable injury and required further benefits. Also included with the submission was a January 30, 2024 report from the worker's treating ophthalmologist noting the worker no longer required restrictions regarding environmental issues as their current visual difficulties had improved but did require a gradual increase in hours and days per week. The employer provided a submission in support of the WCB's decision to Review Office on April 12, 2024, a copy of which was provided to the worker and their representative, who provided a response on April 23, 2024 and April 29, 2024.

Review Office found on May 2, 2024 that the worker was not entitled to benefits after October 30, 2023. Review Office determined some of the symptoms reported by the worker were pre-existing based on the medical information on file and that the medical information did not support the worker was totally disabled from working. In addition, Review Office found the worker's complaints regarding the ergonomic set-up during their accommodated duties with the employer did not cause a further increase or additional injuries that would render the worker unable to work. Review Office further found the worker's current complaints of not being able to be around noise were not related to the February 21, 2022 workplace accident.

The worker's representative filed an appeal with the Appeal Commission on January 17, 2025 and a hearing was arranged. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On July 28, 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 as of the date of the worker’s accident are applicable.

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 a worker has sustained a loss of earning capacity, an impairment or requires medical aid because of an accident, 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 allows the WCB to provide a worker with such medical aid as the board considers necessary to cure or provide relief from an injury resulting from an accident. 

The WCB established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Pre-existing Policy") to address 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 Pre-existing Policy includes the following definitions: 

• Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.

• Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.

• Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.

Worker’s Position

The worker was represented in the hearing by a union advocate who provided a written submission prior to the appeal as well as an oral submission at the hearing detailing the worker’s position. The worker attended the hearing and offered evidence in response to questions posed to them.

The worker’s position is that they were not recovered from the effects of their compensable injury after October 30, 2023 and they therefore continued to be entitled to benefits after that date. The worker testified that their primary difficulty at the time their benefits ended on October 30, 2023 was continued concussion symptoms. The worker acknowledged that they had suffered from concussion and post-concussion symptoms in the past as a result of non-compensable injuries, but said those symptoms were well controlled at the time of the

The representative argued that WCB had wrongly inferred, based on the reports of WCB consultants, that the worker’s condition had not changed after the compensable accident. The representative submitted that this conclusion was contrary to the medical evidence of the worker’s treating professionals, including the neurologist who indicated in their report of March 2, 2022, that the worker’s compensable injury had caused significant worsening of post-concussion symptoms including convergence insufficiency, headache, vestibular problems, and vision change.

The representative argued further that the graduated return to work (GRTW) plan created and implemented by WCB was poorly developed, not in keeping with recommendations of occupational therapists, and had aggravated the worker’s symptoms (sleep disturbance, fatigue, headaches, neck and hand pain), thereby impeding recovery.

Employer’s Position

The employer did not participate in the appeal hearing.

Analysis

The question for the panel to determine is whether the worker is entitled to benefits after October 30, 2023. For the worker’s appeal to succeed, the panel would have to determine that the worker continued to require medical treatment or sustain a loss of earning capacity beyond that date that was causally related to the compensable accident of February 21, 2022. For the reasons that follow, the panel was not able to make such a finding.

The worker gave evidence at the hearing that at the time their benefits through WCB were terminated on October 30, 2023, they continued to experience migraine headaches, dizziness and other concussion symptoms which they attributed to the compensable injury.

The worker had previously experienced non-compensable concussion and post-concussion injuries, most recently on December 31, 2020, which were described on the file. The worker was still being treated for the related symptoms of these injuries at the time of the compensable injury, including Botox injections for what the worker termed maintenance purposes.

The worker’s primary complaints in the months after the accident were an increase in migraines and nausea, vestibular issues (dizziness), vision (difficulty focusing), difficulty working with computers, and an inability to tolerate noise, light and activity.

The medical evidence on file indicates that these symptoms were also experienced by the worker prior to the compensable injury, but the worker takes the position that these difficulties were controlled at the time of their February 21, 2022 accident. 

The panel accepts the evidence of the worker, and their treating professionals, that the compensable injury of February 21, 2022, aggravated the worker’s pre-existing injuries in the period following the accident. We have reviewed the evidence of several treating health professionals which detail the difficulties experienced by the worker in the weeks after the accident.

We note that medical information on file also confirms the worker’s symptoms had improved in many respects by the time their benefits ended on October 30, 2023. The reports of the treating neurologist dated February 9, 2023, May 11, 2023, August 16, 2023 and October 2023 each include the notation that “Since [their] last examination, [their] symptoms have been better.” The report of the treating vision therapist dated September 18, 2023 noted various improvements and indicated “No need for further vision therapy or assessments at this time.”. The report of the worker’s treating vestibular therapist dated March 2, 2023 indicated that prior to a re-assessment on February 23, 2023 they had not seen the worker since July 18, 2022. The vestibular therapist noted improvements and progress and also indicated that the worker was still concerned because some symptoms (right eye pain, visual disturbances, instability, fatigue) could flare up when the worker would overdo daily activities.

Although improved, the worker’s symptoms had not entirely resolved as of October 30, 2023. The panel is therefore required to consider the worker’s condition as of October 30, 2023 in comparison to their condition prior to the accident of February 21, 2022.

After the hearing of the worker’s appeal, the panel requested further medical evidence from the worker’s treating neurologist for the period pre-dating the worker’s compensable injury. The pre-injury reports of the worker’s treating neurologist, when received, were helpful to the panel in determining the baseline condition of the worker immediately prior to the compensable injury.

A report of the treating neurologist dated March 18, 2021, which is the earliest medical report made available to the panel, indicated that the worker was experiencing post-concussion symptoms at that time, and that they had been on “6 hours work”. The worker’s history of migraines with vomiting and dizziness was noted, as were the worker’s sensitivity to light, eye pain, difficulty reading and working on a computer, and double vision when attempting to focus. The report indicated that the worker had suffered a fall (not work related) on December 31, 2020 and had just returned to work. The report indicated that the worker “had some difficulty with the work environment that has become very difficult, mostly the intensity of the work and noise. [The worker] has been on 5 days stretch and has not been able to cope and will be up for 7 days stretch next week.” The report also described, “Every day low level headache, Lasting for days, 10/10, Every day in last week”, a notation that was carried over in the reports of the treating neurologist until October 17, 2024.

A report of the treating neurologist dated September 23, 2021 noted, “Since [the worker’s] last examination [they]changes [sic] [their] job which has been very helpful.”, and “[The worker’s] headache was better until two weeks ago.”.

A report of the treating neurologist dated December 1, 2021, which is the last medical report on file pre-dating the compensable injury of February 21, 2022, noted, “[The worker’s] headache has been worse this time as [their] work has been terrible.” This report is dated less than three months prior to the compensable injury.

In its consideration of the worker’s pre-accident condition the panel has also noted the opinion of the WCB neuro-opthalmology consultant dated August 11, 2022 that neuro-opthalmology findings relating to the worker did not significantly change between December 1, 2021 (before the accident) and March 2, 2022 and April 7, 2022. We have similarly considered the finding of the WCB neuropsychology consultant that the worker’s cognitive functioning did not significantly change between previous testing in 2015 and new testing described in their report of December 16, 2022.

The panel notes further that the recommendations made by an occupational therapist for the worker’s graduated return to work after the compensable injury were also made for this worker prior to their compensable injury. It is reasonable, then, to conclude that the recommendations would not have targeted symptoms causally related to the compensable injury.

The panel therefore concludes, after review of the medical information on file, that the complaints of the worker at or around October 30, 2023 (migraines which had begun to improve but then deteriorated after work exposure, dizziness, visual difficulties, problems reading and working with computers) were fundamentally the same symptoms noted by the worker’s treating neurologist between March and December of 2021, prior to the accident.

The panel is satisfied on the basis of the medical evidence before it, and on the balance of probabilities, that by October 30, 2023, the worker’s symptoms had returned to the baseline that existed prior to their February 21, 2022 compensable injury. The panel finds that the worker’s continued symptoms after October 30, 2023 were not causally related to the compensable injury, and therefore the worker’s appeal does not succeed.

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 22nd day of August, 2025