The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that:

1. The worker is entitled to full wage loss benefits for the period March 14, 2025 to May 12, 2025; and 

2. The worker is entitled to partial wage loss benefits effective May 13, 2025.

A hearing was held on October 28, 2025 to consider the employer's appeal.

Issue

1. Whether or not the worker is entitled to full wage loss benefits for the period March 14, 2025 to May 12, 2025; and 

2. Whether or not the worker is entitled to partial wage loss benefits effective May 13, 2025.

Decision

1. The worker is entitled to full wage loss benefits for the period March 14, 2025 to May 12, 2025; and 

2. The worker is entitled to partial wage loss benefits effective May 13, 2025.

Background

The worker has an accepted WCB claim for an injury to their left wrist that occurred at work on January 6, 2025, when they were carrying a heavy item with a coworker, lost their grip and the item slid and struck their wrist. The Employer’s Accident Report submitted to the WCB on January 8, 2025, noted the employer requested the worker seek medical treatment and have a Functional Abilities Form completed by a physician at which time the employer would accommodate the worker with any restrictions set out on the Form.

The worker attended for an initial assessment with their treating chiropractor on January 7, 2025, and was diagnosed with a left wrist contusion. It was recommended that the worker remain off work for a week due to their reported symptoms in their left wrist, then return to work on January 14, 2025 after being reassessed and with restrictions including no/minimal use of left hand/thumb for 2 weeks. The worker was also seen by a physician on January 8, 2025, reporting pain to the top of their wrist when gripping and flexing after a heavy item was dropped on their wrist at work. The treating physician found left wrist tenderness to the distal radius area and mild discomfort to the snuffbox area with normal flexion and extension. An x-ray taken that day indicated “No acute fracture involving the radius, ulna, or scaphoid is seen. Carpal alignment is normal. There is mild deformity of the distal radius and ulnar styloid process are consistent with a remote fracture.” A restriction of no lifting greater than 10 pounds with the left hand/wrist was recommended.

In a discussion with the WCB on January 14, 2025, the worker confirmed the mechanism of injury and advised their coworker had witnessed the January 6, 2025 incident. The worker described immediate symptoms of sharp pain and swelling to their left wrist, which continued into that evening with constant and sharp pain. The worker then sought medical treatment with their chiropractor who recommended the worker attend for x-rays. The worker described their current symptoms of tenderness and swelling. The worker also advised the WCB they had broken their left wrist approximately 28 years previously. The WCB advised the worker that their claim was accepted, and the payment of various benefits started.

On January 14, 2025, the worker was seen by their treating chiropractor who recommended the worker could return to work with restrictions of no frequent use of the left hand for one week and half-time hours to help the worker’s left wrist heal. The WCB spoke with the employer on January 16, 2025, and confirmed the worker’s physical restrictions, along with the restriction of only work half-days. The employer noted disagreement with the restriction on the worker’s hours but advised the WCB they would accommodate the worker. The worker returned to work on January 15, 2025.

A further Functional Abilities Form was received from the worker’s treating chiropractor on January 21, 2025, noting continuing physical restrictions on use of the worker’s left hand/wrist and continued reduction in the worker’s hours to half time. On January 22, 2025, the employer contacted the WCB to note their concerns with the restrictions set out by the treating chiropractor and requested the WCB review the worker’s abilities. On the same date, the worker’s file was reviewed by a WCB chiropractic advisor who opined the medical evidence on file did not support the requirement for the worker to only work half time and recommended the worker return to their full hours with modified duties. Also on January 22, 2025, the WCB provided the worker with a decision letter advising they would not be entitled to wage loss benefits after that date as it had been determined they were capable of working their full regular hours.

The worker continued to make ongoing complaints of pain to the left wrist and on March 17, 2025, was placed off work by their treating physician pending an assessment by an orthopedic specialist. In speaking with the employer on March 23, 2025, the WCB advised the employer the worker had been placed off work for approximately 6 weeks due to a previous nonunion break in their wrist that was previously missed on the diagnostic imaging and was currently in a custom splint, not able to use their left wrist or attend physiotherapy.

On March 31, 2025, the worker was seen by an orthopedic specialist. The specialist noted the worker’s reporting of left wrist pain after a heavy object fell on their forearm on January 6, 2025. Further, the specialist noted x-rays taken after the incident did not find any bony abnormalities but a left ulnar styloid nonunion was indicated. The worker reported ongoing ulnar-sided wrist pain and advised the specialist they attempted to return to work but was unable to perform their pre-accident duties. The worker also advised they were attending physiotherapy, but their treating physiotherapist stopped treatment until the nonunion was addressed. After examining the worker, the treating orthopedic specialist found the worker had pain on palpitation over their extensor carpi ulnaris tendon and some positive pain testing. The specialist provided the worker’s wrist was deconditioned and x-rays taken that day indicated a previous distal radius malunion and an ulnar styloid nonunion. The specialist recommended an MRI study for further assessment, referred the worker to hand therapy and provided the worker with prescriptions for 2 different types of wrist braces. An initial physiotherapy assessment at a new facility on April 2, 2025 noted the worker had ongoing swelling in the left wrist and hand and recommended the worker remain off work. The worker underwent an MRI of their left wrist on April 23, 2025, which indicated remote distal radial and ulnar styloid fractures; tearing of the triangular fibrocartilage disc and partial tearing of the dorsal and volar radial ulnar ligaments; and longitudinal split tear of the extensor carpi ulnaris tendon.

The worker attended for a follow-up appointment with the physiotherapist on April 25, 2025 reporting their wrist continued to be stiff and sore and difficulties with most activities of daily living that involved gripping. On the same date, the worker was also seen by their treating physician who recommended the worker remain off work due to ongoing left wrist pain, poor grip and poor hand function and slow recovery.

By May 9, 2025, the WCB advised the employer the worker’s treating physician had provided updated restrictions as the worker was capable of returning to work. Those restrictions were noted to be 4-hour shifts, twice per week; sedentary/desk duties; no lifting greater than 2 pounds with left arm; no push/pull greater than 5 pounds with left arm for a period of 2 weeks. The worker returned to work on modified duties at reduced hours on May 13, 2025. A decision letter was provided to the employer by the WCB advising the worker was entitled to full wage loss benefits from March 14, 2025 to the date the worker started their graduated return to work, with partial wage loss benefits payable after that time.

On June 2, 2025, the employer requested reconsideration of the WCB’s decision the worker was entitled to wage loss benefits. The employer noted disagreement with the WCB’s decision as they noted their belief the worker’s time off work and restrictions were not medically accounted for in relation to the workplace accident. The Review Office determined on July 8, 2025 that the worker was entitled to full wage loss benefits from March 14, 2025 to May 12, 2025 and partial wage loss benefits effective May 13, 2025. The Review Office acknowledged the employer has a satisfactory return-to-work program in place for their employees, however, the medical evidence on file supported the worker required time off work due to their symptoms. After May 13, 2025, the Review Office found the worker returned to work on modified duties, in accordance with their treating healthcare providers and as the restrictions provided were for decreased hours, the worker was entitled to partial wage loss benefits.

The employer filed an appeal with the Appeal Commission on July 29, 2025, and a hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by the provisions of The Workers 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 Section 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 Section 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.

The WCB established WCB Policy 44.10.20.10, Pre-existing Conditions (the Pre-existing Policy"), to address eligibility for compensation where a worker has a pre-existing condition. The Pre-existing Policy defines a pre-existing condition as any medical condition the worker had prior to their workplace injury.

The WCB also established Policy 43.20.25, Return to Work with the Accident Employer (the “Return to Work Policy”) to outline the WCB’s approach to return to work of injured workers through modified or alternate duties with the accident employer. The Return to Work Policy encourages employers to provide modified or alternate work to injured workers as part of a process of safely returning those workers to work and helping them to regain their earning capacity, and provides that if a worker refuses to participate in suitable work, wage loss benefits will be reduced or eliminated by the amount the worker would have earned in the suitable work. This policy sets out that:

Suitable work is that which the worker is medically able to do, does not aggravate or enhance the injury, and will provide benefits to both the worker and the employer. Suitable work is permanent or transitional employment that takes into account the worker’s pre-accident employment, aptitudes, skills, and what work is available. It also considers any safety concerns for the worker or co-workers. To determine if the worker is medically able to perform suitable work, the WCB will compare the worker’s compensable medical restrictions and capabilities to the demands of the work.

Employer’s Position

A representative of the employer appeared in the hearing and outlined the employer’s position that the evidence does not support a finding that the worker had a reduced earning capacity such that they were entitled to wage loss benefits.

The employer's representative submitted that the worker was back to work, performing their regular duties the day following the accident. The employer’s evidence is that the worker had no concerns with the modified duties and was able to perform these duties without issue.

The position of the employer is that the worker was successfully reintegrated back into the workplace and therefore had no loss of earning capacity and is not entitled to full wage loss benefits for the period in question or partial wage loss effective May 13, 2025.

The employer notes that they confirmed with the WCB that they had one handed, sedentary duties available for the worker.

The employer also notes that the worker was working for a limousine company during these periods and was not totally disabled or unable to work.

The employer states that they had suitable work available for the worker and believes the worker was uninterested in the modified duties offered to them.

The employer submits that there were periods of non-compliance and non-communication from the worker and is of the position that the worker was able to work and therefore not entitled to wage loss benefits for the periods in question.

Worker’s Position

The worker did not participate in the hearing.

Analysis

Issue 1: Entitlement to Full Wage Loss Benefits

For the employer’s appeal to succeed in relation to their entitlement to full wage loss benefits from March 14, 2025 to May 12, 2025, the panel would have to determine that the worker did not sustain a loss of earning capacity related to the compensable injury during the period in question, or that the WCB failed to comply with the Act and applicable policies. The panel is unable to make these findings and therefore, the employer’s appeal is denied.

The medical evidence demonstrates a clear and progressive worsening of the worker’s left wrist condition following the January 6, 2025 workplace accident. While initial diagnostic imaging did not reveal an acute fracture, subsequent assessments identified a pre-existing distal radius malunion and ulnar styloid nonunion that became symptomatic following the accident. The panel accepts that the workplace injury materially aggravated these underlying conditions, resulting in ongoing pain, swelling, and functional impairment.

By mid-March 2025, the worker’s treating physician determined the worker was not capable of working and placed them off work pending further orthopedic assessment. This decision was supported by subsequent findings from the orthopedic specialist, physiotherapy assessments, and ultimately the MRI results dated April 23, 2025. The MRI confirmed significant structural pathology, including a triangular fibrocartilage tear, ligamentous injury, and a longitudinal split tear of the extensor carpi ulnaris tendon. These findings provide objective medical support for the worker’s reported symptoms and inability to work during this period.

The panel places significant weight on the consistency of the medical evidence from multiple treating providers, all of whom supported the worker remaining off work due to pain, poor grip strength, swelling, and impaired function of the left wrist. There is no persuasive medical evidence indicating the worker was capable of performing even sedentary or one-handed duties during this period without risk of aggravation.

The employer argued that suitable sedentary duties were available and that the worker was capable of working. However, the availability of work alone is not determinative. Under the Return to Work Policy, suitable work must be work the worker is medically able to perform and that does not aggravate or enhance the injury. The panel is satisfied, on a balance of probabilities, that during the period from March 14 to May 12, 2025, the worker was medically unable to perform suitable work, regardless of its availability.

The employer’s submission that the worker was employed elsewhere during this period does not alter this conclusion. The evidence does not establish that any such work was comparable, sustained, or indicative of restored earning capacity, nor does it outweigh the clear medical restrictions imposed by the worker’s treating healthcare providers.

Accordingly, the panel finds that the worker sustained a total loss of earning capacity as a result of the compensable injury from March 14, 2025 to May 12, 2025 and is entitled to full wage loss benefits for that period.

Issue 2: Entitlement to Partial Wage Loss Benefits

For the employer’s appeal to succeed in relation to their entitlement to partial wage loss benefits effective May 13, 2025, the panel would have to determine that the worker does not have a continued a loss of earning capacity related to the compensable injury after May 13, 2025, or that the WCB failed to comply with the Act and applicable policies. The panel is unable to make these findings and therefore, the employer’s appeal is denied.

The panel considered whether the worker is entitled to partial wage loss benefits effective May 13, 2025. The evidence establishes that as of that date, the worker was medically cleared to return to work on a graduated basis, subject to significant restrictions, including reduced hours, sedentary duties, and strict limitations on lifting, pushing, and pulling with the left arm.

The worker returned to work on May 13, 2025 in accordance with these restrictions, working reduced hours and modified duties. As a result, the worker’s earning capacity was only partially restored. This constitutes a partial loss of earning capacity within the meaning of the Act.

The panel finds that the WCB appropriately applied the Return to Work Policy by supporting a graduated return to work consistent with the worker’s medical restrictions and by paying partial wage loss benefits to account for the difference between the worker’s pre-accident earnings and their post-injury earnings.

The employer’s argument that the worker was uninterested in modified duties or failed to cooperate is not supported by the evidence. The worker returned to work when medically cleared to do so and complied with the restrictions imposed by their treating physician. There is no evidence of a refusal of suitable work or a failure to mitigate loss of earning capacity.

On a balance of probabilities, the panel finds that the worker continued to experience a compensable loss of earning capacity effective May 13, 2025, and is therefore entitled to partial wage loss benefits from that date forward.

Conclusion

Based on the foregoing, the panel finds that the WCB correctly applied the Act and relevant policies. The worker sustained a total loss of earning capacity from March 14, 2025 to May 12, 2025 and a partial loss of earning capacity effective May 13, 2025, both causally related to the compensable injury.

The employer’s appeal is therefore dismissed, and the Review Office decision is confirmed.

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 19th day of December, 2025