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 further benefits in relation to the August 11, 2019 accident. A hearing was held on October 15, 2025 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits in relation to the August 11, 2019 accident.

Decision

The worker is not entitled to further benefits in relation to the August 11, 2019 accident.

Background

The worker has an accepted WCB claim for a left ankle fracture that occurred at work on August 11, 2019, after they slipped on a wet floor at work. The worker underwent an open reduction and internal fixation and left syndesmosis fixation of their left ankle on August 17, 2019. The worker received post-surgery treatment including physiotherapy and on November 8, 2019, returned to work on reduced hours and modified duties, gradually increasing their hours and duties. The worker also attended for follow-up appointments with their treating orthopedic surgeon, including an appointment on September 17, 2020, where they reported doing well and returning to their normal activities. The surgeon reported x-rays taken that day indicate a well-healed fracture with no evidence of loosening or failure of the fixation hardware. The worker also reported occasional swelling to their ankle with the surgeon providing the worker with ways to manage and treat the swelling.

On May 17, 2023, the worker contacted the WCB to report ongoing difficulties with their ankle. The worker described pain when they stood too long or lifted too much weight, inability to walk for too long and that they sometimes had to limp with their right leg due to pain. The worker advised their pain started after the surgery in September 2019, with gradual pain and swelling. Their treating physician recommended speaking to the orthopedic surgeon and sent the worker for an x-ray but could not find a reason for the worker's difficulties. The worker further advised they had been seen by another physician who queried whether some of the hardware in the worker's ankle had broken off and had also been seen by a dermatologist who thought the worker may have had keloid scarring and recommended steroidal treatment. The worker noted the treatments did not work and their swelling did not go down. The worker described their current symptoms as pain and discomfort with swelling on both sides of their ankle, rough, hardened and painful skin on their ankle. The worker noted it was always painful and they have had to reduce their hours at work due to pain. The worker advised the WCB they continued to work with the same employer, and their coworkers had noticed them limping at work.

The WCB spoke with the worker on June 8, 2023 to gather further information. The worker advised they were currently being treated by a chiropractor who recommended special insoles for their shoes to assist with their ongoing pain and swelling. The worker described their pain and swelling as progressively worse and while they were currently continuing to work, it was with increasing difficulties. The worker provided that after their claim was closed in 2020, they continued to experience difficulties and went to see their family physician regarding their symptoms. The physician sent them back to the orthopedic surgeon who performed the surgery who had x-rays taken but could not find any issues. The worker was then referred to another specialist at which time further x-rays and an MRI study were conducted. The worker was then referred to a dermatologist as the specialist questioned whether the worker was having a reaction to the surgical hardware. The dermatologist provided the worker with a steroidal cream to help with the pain and swelling but the worker reported no improvement. The worker was then sent back to their family physician who has referred the worker to a second specialist. The worker noted they were being treated by a chiropractor who diagnosed nerve damage and was treating the worker with a tens machine and medications. The WCB advised that further investigation, including medical reports, would be required.

The worker provided the WCB with additional medical reports on July 6, 2023, including reports from their family physician, orthopedic surgeon, dermatologist, a second orthopedic surgeon and neurologist. The additional medical information was reviewed by a WCB medical advisor on July 25, 2023. The advisor opined the worker's current diagnosis was left foot keloids, which were not medically accounted for in relation to the compensable left ankle fracture. The advisor further provided that the worker was examined by a second orthopedic surgeon on March 7, 2022 who noted that the worker's pain was not localized to the left ankle joint, their surgical scars were well healed, there was no tenderness over the left ankle fracture site and diagnosed the worker with a left foot dermatological condition that caused chronic left foot pain. On October 4, 2023, the worker was advised they were not entitled to further benefits in relation to their August 11, 2019 workplace accident as it had been determined their current left ankle difficulties were not related to the accident.

On December 12, 2023, the worker's representative requested reconsideration of the WCB's decision to the Review Office. The representative submitted further copies of the medical information submitted by the worker on July 6, 2023, and argued that the worker continued to suffer the effects of the August 11, 2019 workplace accident, including pain and swelling in their left ankle and as such, should be entitled to further benefits. The Review Office requested a further medical opinion from a WCB advisor, who placed their opinion to the worker's file on January 24, 2024. The advisor indicated that the worker reported that additional anesthetic was required during the initial open reduction and internal fixation surgery on August 17, 2019, and stated that this was not unusual for that type of surgery and the formation of keloid scarring around those injections sites would be rare as the injections would have been done around the surgical incisions in the worker's left ankle and not into their left foot where the worker was reporting their current difficulties. A copy of the WCB medical advisor's opinion was provided to the parties on the same date, with the worker providing a copy of their treating dermatologist's response to the opinion on February 5, 2024. The dermatologist noted their belief that the air cast boot the worker was required to wear following the surgery was likely the cause of the worker's ongoing difficulties. On February 8, 2024, the Review Office determined the worker was not entitled to further benefits. The Review Office accepted and agreed with the opinions of the WCB medical advisors that the worker's compensable left ankle fracture had healed, the local anesthetic used during surgery did not cause keloid scars, the surgical scars from the surgery did not develop into keloid scars, and the use of an air cast boot after the surgery also did not cause the keloid scars on the worker's left foot.

The worker obtained a different representative who requested reconsideration of the WCB’s decision to the Review Office on March 5, 2025. The representative submitted new medical information from the worker’s treating family physician, neurologists and chiropractor and noted the reports from the treating healthcare providers all supported the worker required ongoing medical treatment and time off work due to their symptoms. The Review Office requested a WCB medical advisor review the new medical information provided and an opinion was placed to the worker’s file on April 15, 2025. In their opinion, the WCB medical advisor, in response to questions posed by the Review Office, opined the diagnosis of a mild non-localizable left peroneal sensorimotor neuropathy indicated by the nerve conduction studies was not medically accounted for in relation to the August 11, 2019 workplace accident. The advisor provided that the treating neurologist was not able to confirm the location of the neuropathy based on testing and as such, could not relate the neuropathy to the ankle injury/surgery 6 years prior. In addition, the WCB medical advisor went on to further provide that there are several dermatological conditions that could have associated neuropathies. With respect to the diagnosis of chronic regional pain syndrome, the advisor noted the medical evidence did not support a relationship between the workplace accident and that diagnosis. It was noted that keloid scars are frequently painful and can mimic or overlap symptoms of chronic regional pain syndrome. A copy of the opinion was provided to all the parties on April 15, 2025, with a response received from the worker’s representative on May 1, 2025.

On May 6, 2025, the Review Office again determined that the worker was not entitled to further benefits. The Review Office found the medical reporting after the worker’s surgery in 2019 and recovery period in 2020 indicated that the worker reported some stiffness in their ankle, a two-hour walking tolerance and occasional swelling but no reports of foot pain. The worker’s treating orthopedic surgeon’s reports at the time found the worker was neurovascularly intact, with no reported sensory neuropathy, and was recovering normally. The Review Office then found the next report was from the worker contacting the WCB approximately 3 years later with reports of difficulties weight bearing, reduced walking tolerance, significant pain, skin conditions and inability to wear socks or shoes. The Review Office found those difficulties were not related to the August 11, 2019 workplace accident. With respect to the new medical information provided by the worker’s representative, the Review Office placed weight on and accepted the opinion of the WCB medical advisor that the medical evidence at the time of the workplace accident did not indicate that the worker had a neuropathy, which is a new diagnosis for the worker but not related to the accident.

The worker’s representative filed an appeal with the Appeal Commission on May 22, 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 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 Section 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Section 4(2) of the Act states that 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 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 44.10.20.10, Pre-existing Conditions (the "Policy"), which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The Policy defines a pre-existing condition as any medical condition the worker had prior to their workplace injury, and notes that pre-existing conditions may contribute to the severity of a workplace injury or significantly prolong a worker's recovery. It is further noted that workplace injuries can impact pre-existing conditions.

A temporary worsening of a worker’s pre-existing condition is considered an aggravation of the pre-existing condition and a permanent worsening of the worker’s condition because of a workplace injury is an enhancement of the pre-existing condition.

The Policy provides that wage loss benefits will cease when a worker has recovered to the point that the injury is no longer contributing to a material degree, to the worker's loss of earning capacity, and the pre-existing condition is not a compensable condition.

Worker’s Position

The worker was represented by an advisor at the hearing, who provided information prior to the hearing and made an oral submission at the hearing. The worker gave evidence in response to questions posed by members of the panel.

The position of the worker is that their loss of earning capacity and need for ongoing medical treatment was causally connected to the August 11, 2019 accident. The worker submits that the medical evidence supports that their secondary injuries were caused by the delivery of treatment for the 2019 accident and therefore, the worker is entitled to further benefits.

The worker notes that the Physiotherapy Discharge Report dated March 10th, 2020 confirms the worker had not recovered.

The worker indicates that the gap in their obtaining medical treatment was due to the Covid-19 pandemic.

The evidence from the worker is that they are predisposed to developing keloids because of their ethnicity and personal history of developing keloids from surgeries. However, the worker indicates that prior to the August 11th, 2019 workplace accident, they had no history of left foot or ankle difficulties.

The worker acknowledges that their left ankle fracture healed, they disagree with the Review Office that the left foot keloid scars are not medically accounted for in relation to the compensable accident. The worker states that their keloid scars are a secondary injury caused by the delivery of treatment for the workplace accident.

The position of the worker is that more weight should be given to the opinions provided by the worker’s treating medical professionals, namely their dermatologists and plastic surgeon.

The worker is seeking their appeal be granted.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The issue on appeal is the worker’s entitlement to further benefits arising out of the workplace accident of August 11, 2019. For the appeal to succeed, the panel would have to find that the worker had a loss of earning capacity or required medical aid as a result of injuries sustained in the accident of August 11, 2019. For the reasons outlined below, the panel was not able to make such a finding and therefore the worker’s appeal is denied.

In determining the issue of whether the worker is entitled to further benefits in relation to the August 11, 2019 accident, the panel must assess whether, on a balance of probabilities, the worker’s current reported difficulties and resulting loss of earning capacity or need for medical aid are causally related to the compensable left ankle fracture and associated surgical treatment.

The panel accepts that the worker sustained a significant left ankle fracture on August 11, 2019, requiring surgical repair and a normal course of post-operative rehabilitation. The evidence indicates the worker recovered well from that injury and surgery. The treating orthopedic surgeon’s September 17, 2020 report documented that the worker was “doing well,” had returned to normal activities, and that imaging confirmed a well-healed fracture with no complications. The surgeon reported no tenderness over the fracture site, no neurovascular deficit, and no indication of issues with the fixation hardware. The panel finds this evidence to be consistent with the closure of the worker’s compensable injury in 2020 and the end of the acute recovery period.

The worker first reported new symptoms to the WCB in May 2023, approximately three years after the last documented medical follow-up relating to the compensable injury. These symptoms included pain, swelling on both sides of the foot, limping, and dermatological changes such as rough and hardened skin. The panel notes there is no contemporaneous medical reporting from 2020–2023 indicating ongoing ankle or foot symptoms that might reasonably be expected following the compensable injury or surgery. While the worker explained this gap as due to the Covid-19 pandemic, the panel finds no persuasive evidence of ongoing ankle complications or treatment during that period.

The panel carefully considered the new medical diagnoses and opinions submitted after 2023, including:

• keloid scarring, 

• a left peroneal sensorimotor neuropathy, 

• possible chronic regional pain syndrome, and 

• dermatological conditions affecting the left foot.

The panel notes that the WCB medical advisors consistently opined that these conditions are not medically accounted for in relation to the 2019 ankle fracture or its surgical treatment. In particular, the WCB medical advisor (July 25, 2023) opined that keloid formation on the foot (not at the surgical incision site) was not explained by the fracture or surgical procedure. Further, with respect to the nerve conduction findings, the April 15, 2025 WCB medical advisor concluded that the mild, non-localizable peroneal neuropathy could not be linked to the ankle injury or surgery six years earlier. The medical advisor also noted that certain dermatological conditions can themselves produce neuropathic symptoms.

In contrast, the worker relies on opinions from a dermatologist and plastic surgeon suggesting the keloids were caused by treatment following the accident, including the use of an air cast boot. While the panel acknowledges these opinions, it is required to weigh all medical evidence and determine which is most persuasive. The panel finds the treating specialists did not provide a clear pathophysiological mechanism connecting the 2019 injury or its treatment to the later-developing foot-based dermatological issues. The panel notes the surgical scars from the compensable ankle surgery were repeatedly described as well-healed and not identified as sites of keloid formation. The panel notes that there was no mention of scarring in the surgeon’s reporting.

The panel also considered whether the worker’s newly diagnosed neuropathy or possible chronic regional pain syndrome could constitute a compensable secondary condition. However, the panel accepts the medical opinion of the WCB physical medicine consultant that the evidence does not support a causal relationship between the ankle fracture/surgery and these diagnoses. The worker did not report neuropathic symptoms during the recovery period, and the first indication of such findings occurs several years later. There is insufficient evidence that the compensable injury contributed to the development of these conditions.

The panel also reviewed the Physiotherapy Discharge Report dated March 10, 2020, referenced by the worker as evidence they had not recovered. The panel is satisfied that although the worker may have experienced residual stiffness or occasional swelling at that time, these symptoms appear to have resolved by the time of the orthopedic surgeon’s September 2020 assessment. The panel places significant weight on the surgeon’s clinical findings and imaging confirming a well-healed fracture without complications.

The panel has also considered the Policy. The evidence before the panel does not support that the worker had a pre-existing left foot or ankle condition that was aggravated or enhanced by the workplace accident. Nor is there evidence the compensable injury produced a lasting impairment that continued to materially contribute to a loss of earning capacity after 2020.

In conclusion, the panel finds the worker’s current symptoms, including pain, dermatological changes, swelling, neuropathic findings, and reduced work capacity, are not, on a balance of probabilities, causally connected to the August 11, 2019 accident or its treatment.

As the panel is unable to find that the worker continues to have a loss of earning capacity or require medical aid as a result of the compensable injury, the worker is not entitled to further benefits. Accordingly, 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 12th day of December, 2025