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 July 24, 2023; and 

2. They are not entitled to medical aid benefits after July 24, 2023.

A hearing was held on July 21, 2025 to consider the worker's appeal.

Issue

1. Whether or not the worker is entitled to wage loss benefits after July 24, 2023; and 

2. Whether or not the worker is entitled to medical aid benefits after July 24, 2023.

Decision

1. The worker is entitled to wage loss benefits after July 24, 2023; and 

2. The worker is entitled to medical aid benefits after July 24, 2023.

Background

The employer provided the WCB with an Employer Incident Report on November 21, 2022, reporting the worker had injured their back on November 15, 2022 after lifting and turning to move an object. The employer noted on the Report they were unable to accommodate the worker in alternate duties. The worker submitted their Worker Incident Report to the WCB on November 28, 2022, reporting the same mechanism of injury, noting they twisted their lower back to the left.

The worker attended for medical treatment on November 15, 2022 reporting lower back pain. The treating physician noted reduced range of motion and muscle tenderness and diagnosed the worker with a back strain. A sick note was provided placing the worker off work until November 29, 2022. On November 23, 2022, the worker attended for an initial physiotherapy assessment, reporting constant low back and left leg pain, interrupted sleep, decreased functioning, difficulty with walking and climbing stairs, and inability to perform any household activities or work. The worker described their legs feeling tight and experiencing sharp pain. The treating physiotherapist examined the worker and found an antalgic gait, difficulty in changing body postures, reduced range of motion in the lumbar spine with pain, and tenderness at L4-5 with palpitation and at the bilateral lumbar muscles at L1-5. Positive straight leg raise testing was also noted. The physiotherapist diagnosed an acute back injury with possible disc involvement at L4-5 and noted total disability at that time.

On November 28, 2022, the WCB contacted the worker to discuss their claim. The worker confirmed the mechanism of injury noted on their report and that they were lifting a heavy object and turned to the left when they felt discomfort. They advised they experienced tightness and pain right away with their symptoms progressing the following day and including difficulty sleeping, having to use a cane to ambulate, and increased pain. The worker further advised they reported the incident to the employer right away. The WCB advised the worker their claim was accepted.

The worker continued to attend for medical treatment, including physiotherapy, with a report from their treating family doctor on December 28, 2022 indicating the worker's complaints of on-and-off lower back pain which had improved. The physician found mild lower back tenderness, and decreased but improving range of motion. The treating physician indicated the worker could return to work on modified duties of no pushing, pulling or lifting heavy objects greater than 5 pounds, for no more than 4 hours a day for 2 weeks and recommended the worker continue with physiotherapy. The restrictions were provided to the employer on January 4, 2023, who advised on January 5, 2023, they could not accommodate the worker.

A WCB physiotherapy consultant was requested to review the worker's file to determine if the worker required further physiotherapy treatment. The consultant spoke with the treating physiotherapist on March 17, 2023, who advised the worker was not progressing as anticipated with their treatment. They noted the worker was slow-moving and they could not progress to functional exercises. Straight leg raise testing indicated left leg symptoms but the worker's reflexes were intact and the worker was able to walk on their toes with no foot drop. Additional physiotherapy sessions were authorized and further medical review was recommended.

The worker attended for an MRI study of their lumbosacral spine on April 12, 2023. The MRI indicated some disc pathology at L4-L5 and L5-S1 but no nerve root compression or spinal stenosis. At the request of the WCB, the worker attended for a call-in examination with a WCB medical advisor on May 16, 2023. After examining the worker, the WCB medical advisor responded to questions posed in a medical opinion dated June 6, 2023. The advisor opined the worker's current diagnosis was "…non-specific lower back pain, probably of lumbar disc degenerative/protrusional nature, at the L4-L5 or S1 levels" and noted the "Physical findings are hard to explain rationally on a patho-anatomical basis." The WCB medical advisor concluded the worker was not totally disabled from working and recommended restrictions of avoiding lifting or bending with lumbar spine; no prolonged standing or sitting; no climbing ladders; stairs, one flight infrequently; lifting, from waist level only 10 pounds limit, on an occasional or as able basis; and some sitting, standing, and walking on a self-modulating, as able basis. Those restrictions were provided to the employer on June 28, 2023.

On July 18, 2023, the WCB provided the worker with a decision letter advising it had been determined a relationship between their current low back difficulties and the November 15, 2022 workplace accident could not be established and as such, they were not entitled to benefits after July 24, 2023.

On July 24, 2023, the worker requested reconsideration of the WCB's decision to end their entitlement to wage loss benefits. Review Office determined on July 31, 2023, the worker was not entitled to wage loss benefits after July 24, 2023. Review Office placed weight on and agreed with the opinion of the WCB medical advisor who examined the worker and found the worker had pre-existing degenerative changes to their back, which changes were not structurally affected by the November 15, 2022 workplace accident.

The worker's representative filed an appeal with the Appeal Commission on March 25, 2025.

The worker's representative also requested reconsideration of the WCB's decision to end the worker's entitlement to medical aid benefits on July 24, 2023 to Review Office on March 26, 2025. The representative noted the medical evidence on file did not support the worker had recovered by July 24, 2023 and as such, should be entitled to further medical aid benefits. On April 7, 2025, Review Office determined the worker was not entitled to medical aid benefits after July 24, 2023. Review Office again relied on and accepted the opinion of the WCB medical advisor who opined the worker had pre-existing degenerative changes with the file evidence not supporting the changes were structurally affected by the workplace accident. Review Office acknowledged the worker's representative had provided information indicating the worker had attended for further medical treatment after July 24, 2023 however, found as the compensable diagnosis was a low back strain, the worker's difficulties approximately two years later could not be accounted for.

The worker's representative also filed an appeal with the Appeal Commission for this issue and a hearing was arranged on both issues.

Reasons

Applicable Legislation and Policies

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act, regulations under the Act and the policies established by the WCB’s Board of Directors.

A worker is entitled to benefits under Section 4(1) of the Act when it is established that a worker has been injured as a result of an accident arising out of and in the course of employment. Section 4(2) provides that a worker injured in such an accident is entitled to wage loss benefits for loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in loss of earning capacity during any period after the day on which the accident occurs.

When the WCB determines that a worker has sustained a loss of earning capacity, an impairment, or requires medical aid because of an accident at work, compensation is payable under section 37 of the Act. Section 27 of the Act also authorizes the WCB to provide a worker with such medical aid as the board considers necessary or advisable to cure or give relief to a worker or for the rehabilitation of a worker. Section 39(2) of the Act provides 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 was represented by a worker advisor at the hearing who led evidence and made arguments on the worker’s behalf. The worker gave evidence in the form of answers to questions posed to them by the worker advisor and the panel. The worker was assisted by an interpreter at the hearing.

The worker’s position was that they had not recovered from their compensable injury sustained November 15, 2022 at the time their WCB benefits were terminated on July 24, 2023. The worker gave evidence that they had continued to experience the symptoms of their compensable injury, and to regularly attend appointments with health care professionals for treatment of their symptoms, up to and after the date their benefits were terminated.

The worker also gave evidence that they had not experienced any difficulties with the areas affected by the compensable injury prior to the workplace accident. The worker advisor argued that even if the worker had a pre-existing lumbar disc degenerative/protrusional condition, as surmised by the WCB orthopedic consultant (which the worker denied), the workplace accident had enhanced the condition. The worker advisor reiterated that there was no evidence of a recovery by the worker after November 15, 2022, regardless of whether or not there was a pre-existing condition.

Employer’s Position

The employer did not participate in the hearing.

Analysis

The issue before the panel was whether the worker is entitled to benefits after July 24, 2023, in relation to the November 15, 2022 accident. For the worker’s appeal to succeed, the panel would have to find that the worker continued to experience the effects of the compensable workplace accident beyond July 24, 2023 and that the worker either required further medical aid or continued to sustain a loss of earning capacity after that date as a result. For the reasons that follow, the panel is able to make such a determination.

In considering the worker’s appeal, the panel carefully reviewed the medical information on file. The panel noted that medical evidence indicates continuity in the worker’s reported symptoms and clinical findings from the date of the accident to July 24, 2023 and beyond. There was no evidence of recovery on the worker’s claim file between the date of the accident and the date WCB terminated the worker’s benefits. The worker’s physiotherapist was still treating the worker for their post-accident symptoms on July 24, 2023, and continued to do so thereafter. The notes of the treating physiotherapist on file confirm that the worker’s symptoms were continuous and ongoing from the time of the accident to the date the worker’s benefits were terminated.

The WCB consultant opined in their report of June 6, 2023 that they found the worker’s continuing symptoms at that time “hard to explain rationally on a patho-anatomic basis”, based on the worker’s MRI findings. The WCB and Review Office subsequently concluded that the worker’s symptoms as of July 24, 2023 could not be causally related to the workplace accident.

The panel finds that difficulty relating the worker’s symptoms to a patho-anotomic cause does not disprove causation between the worker’s injury and their continuing symptoms, nor is it evidence of recovery. The panel takes note of the WCB consultant’s opinion of June 6, 2023 but does not consider it determinative of the issue before us, having regard to unchallenged evidence of the worker’s continuous and ongoing symptoms between the date of the accident and the termination of WCB benefits, and beyond. The panel finds, on a balance of probabilities, that the worker had not recovered from the effects of the November 15, 2022 compensable injury as of July 24, 2023, and that the worker suffered a further loss of earning capacity and required further medical aid beyond that date. The panel therefore finds that the worker is entitled to further benefits after July 24, 2023. The worker’s appeal is allowed.

Panel Members

M. Murray, Presiding Officer
J. Witiuk, Commissioner
M. Payette, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 28th day of August, 2025