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 wage loss benefits after March 31, 2025 in relation to the April 10, 2022 accident. A hearing was held on November 20, 2025 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after March 31, 2025 in relation to the April 10, 2022 accident.

Decision

The worker is entitled to wage loss benefits after March 31, 2025 in relation to the April 10, 2022 accident.

Background

This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 58/24, dated June 12, 2024. The background will therefore not be repeated in its entirety.

The worker has an accepted WCB claim for a psychological injury that occurred at work on April 10, 2022. Pursuant to the above noted Appeal Commission Decision, it was determined on June 12, 2024, the worker was entitled to wage loss and medical aid benefits after August 29, 2023 and the worker’s file was returned to the WCB’s Compensation Services for further adjudication.

After the worker’s file was returned to the WCB, discussions took place between the WCB, the worker and the employer regarding a return to work. The worker also was seen by their treating psychologist, who provided a report to the WCB on November 12, 2024. The report recommended a permanent restriction for the worker not to work in a specific type of environment, which restriction was provided to the employer on November 13, 2024 by the WCB. The employer acknowledged receipt of the restriction and advised the WCB, also on November 13, 2024, they were looking for a position to accommodate the worker. An accommodated position was suggested by the employer, which the worker accepted. They began working in that position on January 13, 2025. On January 14, 2025, the worker advised the WCB they did not feel the accommodated position was appropriate as they began to experience an increase in symptoms. All parties agreed that this position was not suitable for the worker.

On February 6, 2025, the worker provided the WCB with a copy of a note from their treating physician (dated January 29, 2025) removing their physical, non-compensable restrictions and advised the WCB of an accommodated position from the employer they were interested in being considered for. On February 19, 2025, the employer advised they had submitted the worker for the position and on March 7, 2025, the employer arranged a meeting with the worker and the WCB to discuss the worker being placed in the position.

On March 18, 2025, the employer advised both the worker and the WCB that the worker had been selected for the position. The worker began this employment on March 24, 2025 (“the accommodated position”). On March 25, 2025, the worker contacted the WCB to advise the accommodated position was going well.

The worker contacted the WCB by email on April 1, 2025 to advise they were not able to continue with the accommodated position due to physical limitations, including pain, swelling, stiffness and stamina. A further email sent by the worker detailed the ongoing physical complaints and noted their psychological injury had left them “…very weak and unfit”.

On April 2, 2025, the WCB advised the worker by way of a formal decision letter they were not entitled to wage loss benefits as the employer had provided an appropriate accommodated position and they had no physical restrictions rendering them incapable of working.

The worker requested reconsideration of the WCB’s decision to Review Office on June 9, 2025. In their request, the worker noted that due to their compensable psychological injury, they had been inactive for over three years and as a result became physically unfit, which affected their non-compensable health issues. They noted a connection between their ongoing psychological difficulties and their physical limitations and noted their belief they should be entitled to further wage loss benefits. The employer provided a submission in support of the WCB’s decision, a copy of which was provided to the worker on July 22, 2025. On August 12, 2025, Review Office determined that the worker was not entitled wage loss benefits after March 31, 2025. Review Office found the accommodated position provided was appropriate given the worker’s permanent restrictions. In addition, Review Office found the worker’s claim that some of their physical difficulties were as a result of their psychological injury was not medically supported by the information on file.

The worker filed an appeal with the Appeal Commission 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 (“Act”), regulations under the Act and the policies established by the WCB's Board of Directors.

Section 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid. Under section 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 the 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 the wage loss benefits are payable until the worker’s loss of earning capacity ends or the worker attains the age of 65 years.

Section 22(1) creates an obligation upon workers in relations to injuries sustained as a result of an accident, to:

(a) take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury; 

(b) seek out, co-operate in and receive medical aid that, in the opinion of the board, promotes the worker’s recovery; and

(c) co-operate with the board in developing and implementing programs for returning to work, rehabilitation or disability management or any other program the board considers necessary to promote the worker’s recovery.

If a worker fails to comply with s.22 of the Act the WCB may reduce or suspend the worker’s compensation.

WCB Policy 43.20.25 entitled “Return to Work with the Accident Employer” sets out the obligations of both the worker and the employer when finding alternate suitable work arrangements for the worker. Pursuant to this policy, 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”.

WCB Policy 44.10.30.60 entitled “Co-operation and Mitigation in Recovery” elaborates on the responsibilities or both workers and the WCB in ensuring compliance with section 22 of the Act as is therefore also applicable to this appeal. WCB Policy 44.10.30.60 states:

1. If the WCB determines that the worker has not complied with section 22 of the Act and the requirements of this policy, it may reduce or suspend the worker’s compensation. Before taking this step, the WCB will consider whether the worker has a reasonable explanation for non-compliance. If the WCB considers the worker’s explanation for non-compliance to be reasonable, it will not suspend or reduce the worker’s compensation.

2. Before reducing or suspending compensation, the WCB will provide the injured worker with a reasonable opportunity to comply with his or her obligations under the Act and this policy.

3. The WCB will communicate with the worker within a reasonable period of time following a reduction or suspension of benefits, to provide a further opportunity to comply with his or her obligations under the Act and this policy.

Worker’s Position

The worker represented themselves at the hearing. The worker provided documents in support of their position prior to the hearing and made an oral presentation to the panel at the hearing. The worker also provided testimony in the hearing through answers to questions posed by members of the appeal panel.

The worker’s position is that the WCB prematurely ended their entitlement to wage loss benefits without fully understanding the reasons why they were unable to continue with the accommodated position which began on March 24, 2025.

The worker advised that the accommodated position aggravated their pre-existing injuries (most of which are unrelated to the work-related injury) and that the accommodated position, due to the physical requirements of the job, was causing them physical pain. The worker also argued that this psychological workplace injury exacerbated their pre-existing conditions.

Prior to the workplace injury, the worker had many physical restrictions on their employment for various reasons, including non-work related injuries and medical conditions. The worker advised that in order to do their best to return to work, they advised their family physician to remove the physical restrictions associated with their employment (and that had been in place for approximately 11 years) so that they could apply for a manual labour position with the employer. The worker advised that their physician then provided documentation to the employer to remove the physical restrictions notwithstanding the fact that the worker’s pre-existing injuries had not actually improved.

The worker advised that although they were able to perform the duties associated with the accommodated position for a couple of days, it was shortly thereafter that they realized that they were physically incapable to completing the required tasks and it was then that they contacted the WCB by email to advise that they would not be continuing with the accommodated position.

The worker advised that they did not receive any correspondence whatsoever from the WCB until they received a letter from them dated April 2, 2025 terminating their wage loss benefits.

It is the worker’s position that they remain entitled to wage loss benefits as the accommodated position was not appropriate in the circumstances and that they remain open to accepting a position with the employer that meets their physical and psychological restrictions.

Employer’s Position

The employer was represented by its agent. The employer’s agent provided documents in support of their position prior to the hearing and made an oral presentation to the panel at the hearing. The employer also provided answers to questions posed by members of the appeal panel.

The employer’s position is that the worker is not entitled to wage loss benefits beyond March 31, 2025 as the accommodated position appropriately met the worker’s workplace restrictions which were in place at the time. As the worker’s treating family physician removed all physical workplace restrictions by letter dated January 29, 2025, the only remaining workplace restriction in March 2025, was as noted by the worker’s psychologist- specifically that the worker could not work in a specific type of environment.

The employer states that the accommodated position was appropriate for the worker as they were not working in that specific environment and that the information before the panel does not support a causal connection between the need for further time off work and the compensable work injury.

Analysis

This panel must determine whether the worker is entitled to wage loss benefits after March 31, 2025 in relation to the April 10, 2022 accident. For the worker’s appeal to succeed, the panel would have to determine that the worker was not recovered from the effects of the workplace accident by March 31, 2025 and the worker’s continuing loss of earning capacity beyond March 31, 2025 is the result of the compensable injury sustained. In addition, the panel would have to determine that the (i) worker met their obligations as required by WCB Policy 43.20.25; or, (ii) that the WCB failed to meet its obligations as required by the Act, WCB Policy 43.20.25 and/or WCB Policy 44.10.30.60.

As outlined in the reasons that follow, the panel was able to make such findings and therefore the worker’s appeal is granted.

It is undisputed from the medical evidence on file that the worker continues to suffer psychological harm from the workplace injury as documented by their treating psychologist. All parties agree that the worker is unable to return to their pre-workplace accident employment as a direct result of the workplace injury.

The panel then must examine whether both the worker and the WCB met their obligations as required by the Act, WCB Policy 43.20.25 and WCB Policy 44.10.30.60.

Suitable Work

As noted above, Section 22(1) of the Act creates a positive obligation on workers in relation to injuries sustained as a result of a workplace accident. Workers must take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury. Accordingly, the worker must comply with Policy 43.20.25 and accept “suitable work” that the worker is medically able to do and that does not “aggravate or enhance injury” and takes into account the worker’s “pre-accident employment, aptitudes skills and what work is available”.

The panel finds that accommodated position, which was a manual labour-related position, was not “suitable work” and that the worker remained entitled to wage loss benefits for the following reasons:

1) Prior to January 29, 2025, the worker had existing restrictions in place with respect to his employment for approximately 11 years. These restrictions noted that the worker had certain physical limitations. Although a medical note dated January 29, 2025 removed all work restrictions, save and except for working in a specific type of environment, the medical note did not provide a medical explanation for the basis of the removal. As noted by the worker in his oral evidence, the restrictions were removed solely based on him advising his family doctor that he wanted the restrictions removed.

2) Upon the worker starting the accommodated position on March 24, 2025, the worker quickly realized within one week of starting the position that he was not physically able to fulfill the duties of the position, and he advised the WCB of same.

3) Subsequent to the worker leaving the accommodated position, his family doctor provided a medical note advising that the worker again required the employment restrictions that were removed in January, 2025.

Notice

Once the worker contacted the WCB to advise that they could no longer continue in the accommodated position, the WCB then must apply Policy 44.10.30.60, which contains a section dealing with “Consequences of a Worker’s Failure to Mitigate”.

This section specifically states that “before reducing or suspending compensation, the WCB will provide the injured worker with a reasonable opportunity to comply with his or her obligations under the Act and this policy”. Accordingly, once the WCB became aware of the worker’s intention to leave the accommodated position on April 1, 2025, the WCB was required to contact the worker to advise them of WCB’s position on the issue and to allow the worker the opportunity to comply with their obligations under the Act.

It is undisputed in the evidence before the panel that the WCB did not reach out to the worker until April 2, 2025 when they advised the worker by letter that their wage loss benefits would be terminated effective April 1, 2025. Prior to sending this termination letter, the WCB did not contact the worker by phone or in writing to invite the worker to comply with their obligations under the Act. Terminating the worker’s wage loss benefits only one day after the worker advised that they were leaving the accommodated position did not provide the worker with “reasonable opportunity” to respond to the WCB’s intention to terminate benefits. As such, the panel finds that the WCB failed to comply with Policy 44.10.30.60.

While the panel appreciates the arguments of the employer’s representative and commends the substantial efforts made by the employer to accommodate the worker, the fact remains that the accommodated position was not “suitable work” and that the WCB failed to provide the worker with a reasonable opportunity to comply with their obligations under the Act as required by WCB Policy 44.10.30.60.

The panel therefore determines, on the balance of probabilities, that the worker is entitled to wage loss benefits after March 31, 2025. We refer the claim back to the WCB for further determination as to the worker’s benefit entitlement and the duration of same.

Panel Members

N. Brown, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

N. Brown - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 16th day of January, 2026