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 after February 5, 2024 in relation to the June 14, 2023 accident. On August 25, 2025, a hearing took place to consider the worker's appeal.

Issue

Whether the worker is entitled to further benefits after February 5, 2024 in relation to the June 14, 2023 accident.

Decision

The worker is not entitled to further benefits after February 5, 2024 in relation to the June 14, 2023 accident.

Background

The WCB accepted the worker’s claim arising out of an injury to their left foot that occurred at work on June 14, 2023. The worker sought emergency treatment reporting difficulty moving the toes on their left foot, decreased range of motion in their foot and inability to ambulate. The treating physician noted slight swelling to the left foot, tenderness to the midfoot over the third metatarsal and navicular bone with an intact Achilles tendon and normal sensation, and an x-ray showed a nondisplaced medial cuneiform fracture.

After the injury, the employer provided modified duties involving sedentary tasks to accommodate the worker’s injury and initially provided transportation to and from work.

On August 11, 2023, a sports medicine physician noted the worker’s report of a painful foot and an infection in their great toe. On examination, the physician found tenderness over the middle cuneiform and recommended that the worker take the walking boot off for periods of time for sensitization. The physician provided a sick note allowing the worker to be off work until August 28, 2023. The worker also saw a second sports medicine physician the same day who outlined that the worker was capable of sedentary duties.

On August 15, 2023, the WCB told the worker they were expected to return to work at the recommended modified duties, noting the worker performed modified duties prior to August 11, 2023 and the medical reporting did not support a requirement for time off work. On August 17, 2023, the employer advised the WCB that the worker had not returned to work.

A WCB medical advisor reviewed the worker’s claim on August 23, 2023 and concluded the worker’s “minor (mid foot bone) fracture” was “now likely largely healed” and that the diagnosis of onychomycosis was unrelated to the workplace injury, noting that the development of toenail fungal infections is “a common occurrence in the general public and would not relate to the effects of the foot injury or its treatment.” The WCB medical advisor agreed that the worker was capable of modified duties at work. On the same date, the WCB advised the worker by letter that they were not entitled to wage loss benefits after August 11, 2023 as the medical information did not support their inability to work.

On August 29, 2023, the worker advised the WCB they were terminated from their employment.

The August 31, 2023 report from the primary sports medicine physician noted tenderness over the left great toenail and discolouration and recommended the worker wean off use of crutches and the walking boot.

In a letter of September 8, 2023, the WCB advised the worker it decided they were recovered from the compensable injury and as such, were not entitled to further benefits.

In September 2023, the worker requested Review Office reconsider the WCB’s decision to end their entitlement to wage loss benefits. Review Office returned the worker’s file to the WCB’s Compensation Services for further investigation. After gathering information from the worker and the employer, the WCB advised the worker by letter dated October 12, 2023 that they were entitled to wage loss benefits for certain dates due to medical appointments, but they were not entitled to benefits after August 14, 2023 as the employer had suitable modified duties available for the worker and the medical evidence did not support that they were totally disabled from work.

In January 2024, the worker again requested Review Office reconsider the WCB’s decision. On March 13, 2024, Review Office determined the worker was not entitled to wage loss benefits from August 15, 2023 to August 25, 2023 but was entitled to wage loss benefits after August 28, 2023 and returned the worker’s file to the WCB’s Compensation Services for further adjudication.

The WCB spoke with the employer to gather information on wages. On March 21, 2024, the worker’s treating physiotherapist advised the WCB that the worker last attended for treatment on January 9, 2024, by which time they were well on the way to full recovery, with good functional abilities and that only a couple of additional weeks of strengthening would have been required. The physiotherapist outlined their opinion that if the worker had continued treatment and took part in a gradual return work, they would have been capable of returning to their full, regular duties by February 5, 2024. The physiotherapist noted the worker’s progress was slowed by the issue with their big toe, which the worker had attributed to wearing the walking boot, but the physiotherapist advised it was a common condition that happens naturally and would not have impacted the worker’s ability to participate in a gradual return to work program.

On April 23, 2024, the WCB told the worker they were entitled to wage loss benefits to February 5, 2024. In May and June 2024, the worker requested Review Office reconsider the WCB’s decision to end their entitlement to wage loss benefits. On June 12, 2024, Review Office returned the worker’s file to the WCB’s Compensation Services for further investigation. The WCB received chart notes from the treating physiotherapist, copies of hospital admission notes for February 25, 2024, and a March 3, 2024 report from a minor injury clinic physician. The minor injury clinic physician reported the worker requested removal of the infected toenail due to ongoing symptoms, and the procedure took place that date.

On September 19, 2024, the WCB advised the worker that after reviewing the new medical information, there was no change to the decision that the worker was not entitled to wage loss benefits after February 5, 2024.

On January 20, 2025, the worker requested Review Office reconsider the WCB’s decision, submitting that they continued to experience symptoms from the June 14, 2023 workplace accident and were referred for further treatment due to ongoing difficulties. On February 13, 2025, Review Office determined the worker was not entitled to benefits after February 5, 2024. The worker filed an appeal with the Appeal Commission on March 10, 2025 and a hearing took place.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by the provisions of The Worker’s Compensation Act (the “Act”), the regulations under the Act and the policies established by the WCB's Board of Directors.

Section 4(1) of the Act provides that the WCB will pay compensation when a worker has sustained personal injury by accident arising out of and in the course of employment, and s 4(2) outlines that a worker injured in such an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. When the WCB decides 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 of the Act sets out that wage loss benefits are payable until the worker's loss of earning capacity ends or the worker reaches the age of 65 years. Section 27 of the Act allows the WCB to provide medical aid to a worker entitled to benefits that “…the board considers necessary or advisable to cure or give relief to the worker or for the rehabilitation of the worker.”

Worker’s Position

The worker appeared in the hearing on their own behalf and outlined their position that they continue to experience symptoms and require further medical attention in relation to the injury sustained in the workplace accident of June 14, 2023. The worker submitted that they have experienced a continuing loss of earning capacity after February 5, 2024 as a result of this injury.

The worker noted there is no evidence of any prior or pre-existing left foot and toe injury and pointed to their ability to do their job, including wearing the required steel-toed footwear before the injury occurred.

The worker stated that they continue to await a surgical referral in relation to their left foot injury and confirmed their belief that the fungal infection and ingrown toenail are related to and the result of the injury to their left foot sustained in the workplace accident.

Employer’s Position

A representative of the employer appeared in the hearing and outlined the employer’s position that the worker is not entitled to further benefits after February 5, 2024. The employer’s representative noted the evidence that the compensable undisplaced left middle cuneiform fracture was healed at the time of imaging taken in September 2023 and further noted that at the time of the accident no injuries to the worker’s left big toe were noted.

The employer’s position is that the worker’s ongoing symptoms in their left foot are not a result of the accident of June 13, 2023 and therefore any need for further treatment is not related to that injury.

Analysis

This appeal is about the worker’s entitlement to benefits after February 5, 2024, arising out of the accident of June 13, 2023. For the worker’s appeal to succeed, the panel would have to find that the worker continued to have a loss of earning capacity or continued to require medical aid arising out of the injuries sustained in the workplace accident when the WCB discontinued benefit payment on this claim. For the reasons outlined below, the panel could not make such findings and therefore the worker’s appeal is denied.

The panel considered the evidence from the treatment providers who assessed the worker following the accident. Based on the initial reporting, we are satisfied that as a result of the workplace accident, the worker sustained a left foot undisplaced middle cuneiform fracture. There is no evidence from the time the injury occurred that the worker sustained any injury to the toes of their left foot.

The panel also noted that in August 2023 the treating sport medicine physician noted evidence of onychomycosis, a fungal infection, to the worker’s left big toe and prescribed medication for that condition. By October 2023, the physician reported the worker was no longer wearing the walking boot prescribed in relation to the workplace injury, but they found “nonfocal tenderness over [the worker’s] dorsal foot and toenails”. The physician stated that the toenail condition could impact the worker’s recovery. In November 2023, the physician noted a decrease in pain on palpation over the dorsal foot.

The panel also reviewed the reporting by the treating physiotherapist who first assessed the worker on October 12, 2023. As of January 2, 2024, the physiotherapist noted significant recovery, with the worker reporting lower leg weakness and general tenderness along the midfoot. The physiotherapist also noted the infected ingrown left big toenail had “slowed down recovery.” In later conversation with the WCB, the treating physiotherapist stated that the worker was well on their way to full recovery at the time of their last appointment on January 9, 2024 and needed only a few more weeks of strengthening but confirmed the worker did not return for treatment after that date. The panel noted as well that the physiotherapist confirmed their view that the worker’s ingrown toenail and fungal infection were “common” conditions that were unlikely related to the workplace injury. The physiotherapist stated that although that condition was limiting the worker’s progress, it would not have affected the worker’s ability to take part in a gradual return to work.

The panel also considered the opinion provided by the WCB medical advisor of August 23, 2023 that the recent “minor” mid-foot fracture was “now likely largely healed” and that the fungal infection was unrelated to the workplace injury and is a “common occurrence in the general public.” We accept and rely upon this opinion.

We are satisfied that while the evidence confirms that the worker continued to obtain treatment for their left foot after February 2024, the ongoing medical concerns were not related to the compensable injuries, but more likely than not arose out of the worker’s non-compensable fungal infection and ingrown toenail condition. Furthermore, we are satisfied that any loss of earning capacity beyond February 5, 2024 does not relate to the workplace injury but, rather, resulted from their non-compensable left big toe conditions.

Based on the evidence before us and on the standard of balance of probabilities, we find the worker did not have a loss of earning capacity or require further medical aid beyond February 5, 2024 as a result of the injuries sustained in the workplace accident of June 13, 2023. Therefore, the worker is not entitled to benefits after that date. The appeal is denied.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Payette, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 28th day of August, 2025