The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker is entitled to benefits after August 22, 2023. A file review was held on February 26, 2026 to consider the employer's appeal.

Issue

Whether or not the worker is entitled to benefits after August 22, 2023.

Decision

The worker is entitled to benefits after August 22, 2023.

Background

The worker has an accepted WCB claim for an injury to their head that they sustained at work on April 20, 2023. The injury occurred when a cart was pushed into them and struck the back of their head. The worker was taken to a local emergency department where they reported being hit from behind by a metal cart. The worker advised they did not lose consciousness but experienced immediate pain to the base of their skull and neck which then travelled down their back. The treating physician examined the worker and noted the worker had pain to their T5-8 and T10 lumbar spine, sacrum and pelvic area, no tenderness to their cervical spine but pain reported on the left side of their neck, with no obvious bruising or swelling. Diagnostic imaging taken at that time did not indicate any fractures or injuries. It was recommended the worker remain off work for 5 days then return to light duties.

On April 28, 2023, the employer confirmed the worker returned to modified duties which included no lifting greater than 12 pounds; occasional walking, sitting, standing, bending, twisting, squatting, kneeling, climbing, reaching overhead, operating machinery; and hours of work as they could tolerate.

The worker attended for a follow-up appointment with their treating physician on April 28, 2023 who provided a Functional Abilities Form, indicating the worker had a “Concussion/Post Concussion” and placed the worker off work. The WCB contacted the worker on May 1, 2023 to discuss their claim. The worker confirmed to the WCB that on April 20, 2023, they were struck in the back of the head by a cart, after which they felt pain in the neck and back, with pressure in their head and blurred vision starting the following day. The worker further advised they were taken to a local hospital after the incident and it was recommended they remain off work for 5 days, after which they returned to work on modified duties. They then attended a local walk-in clinic on April 28, 2023 due to symptoms of dizziness and blurred vision, and they were placed off work again. The worker described their current symptoms of pain to their neck and back, noises in their head and blurred vision. They confirmed they attended for physiotherapy the following day. The worker attended for a CT scan on April 28, 2023 which indicated “No evidence of intracranial aneurysms. No acute intracranial hemorrhage.”

An initial physiotherapy report for the worker, dated May 2, 2023, noted that the worker reported a painful upper back, headaches, dizziness, loud throbbing in their ear and difficulty sleeping. Reduced range of motion was noted for the worker’s cervical flexion and extension and tightness in the thoracic range. The treating physiotherapist diagnosed the worker with concussion symptoms and multiple level cervical and upper thoracic strain/sprains and recommended the worker remain off work.

The worker attended for a further follow-up appointment with a physician on May 4, 2023, reporting headache, head pressure, dizziness that was worse with head and neck movement, right neck pain and inability to lift any significant weight with their right arm. The treating physician found tenderness over the right deltoid and trapezius area with normal motor and sensory movements. The physician also recommended the worker remain off work for rest and low stimulation. Physiotherapy and massage were recommended. A further report from the physician also referred the worker for an MRI study.

On May 18, 2023, the worker’s treating physiotherapist recommended that the worker could return to work as of May 23, 2023 with restrictions of light duties involving less than 10 pounds; no bending due to pressure in their ear; no reaching overhead; limited rotation; and position changes as needed. The employer confirmed the worker returned to work on modified duties on May 23, 2023.

On May 26, 2023, the employer advised the WCB that the worker had worked for 2 shifts, then provided them with a note from their treating physiotherapist advising the worker had experienced a flare-up of their symptoms and was unable to work for 2 weeks. A June 8, 2023 report from the worker’s physiotherapist noted that the worker had increased pain in their neck, headaches and vision flashing, inability to look to the left and intermittent pain to their left 2nd and 3rd fingers with left rotation. The treating physiotherapist noted a significant flare-up after a trial return to work and recommended a further 2 weeks off work, with the worker to be reassessed at that time for a possible return to work on reduced hours and days. The WCB spoke with the worker’s treating physiotherapist who advised they placed the worker off work due to an increase in the worker’s concussion symptoms and agreed the modified duties the employer could offer would be appropriate if the worker could return on a gradual basis of 4 hours per day on alternating days. The physiotherapist completed a Functional Abilities Form indicating the worker could return to work on modified duties with reduced hours on June 22, 2023.

The worker’s treating physiotherapist contacted the WCB on July 7, 2023 to note concerns with the modified duties being provided to the worker by the employer. The physiotherapist noted one of the duties was repetitive and was aggravating the worker’s symptoms. It was noted by the physiotherapist that more sedentary duties such as light sorting or office duties would be more appropriate for the worker. The physiotherapist provided a report to the WCB on July 11, 2023, requesting additional treatment for the worker as they were experiencing “very symptomatic concussion symptoms and cervicogenic pain”. Restrictions for the worker were updated to be 3 hours of work, twice per week with a rest day in between with physical restrictions of no lifting, squatting, kneeling; no prolonged or repetitive neck flexion; standing and walking less than 1/3 of total shifts; breaks as needed; and lighter tasks. On July 18, 2023, the employer advised the WCB they had removed the task from the worker’s modified duties that were noted to aggravate their symptoms.

The worker contacted the WCB on July 19, 2023 to advise that the previous day they had attended a local emergency department as they had fainted in the morning and had vision difficulties in addition to headache, neck ache, back ache and numbness in their arms and fingers and provided a note from the emergency department indicating the worker had been treated for post-concussion and syncope or fainting. The report from the emergency department was received by the WCB and noted the worker’s complaints of loss of consciousness, localized neurologic symptoms of visual disturbance and weakness, which had resolved, and persistent numbness to their left arm. A diagnosis of post-concussion syndrome was provided and it was recommended the worker be referred for a brain MRI.

In a discussion with the WCB on July 26, 2023, the worker advised the light duties they had been performing recently had not caused any worsening of their symptoms, but they were only able to manage working a few hours a day. The worker described their current symptoms as pressure in their right ear with movement and when laying down, vision disturbances like flashing lights, insomnia, and tingling in their left arm.

On July 31, 2023, the worker underwent a cervical spine MRI study which noted “No definite cause for the patient’s clinical presentation on this study.”

The worker’s file was reviewed by a WCB medical advisor on August 4, 2023. The advisor opined based on the medical evidence on file at the time of the April 20, 2023 workplace accident that the worker’s initial diagnosis was a neck and back strain, with an anticipated recovery time of a few days to a few weeks. It was noted that the medical evidence did not find any significant abnormalities on initial examination except for some tenderness to palpitation over the left neck and back areas. No evidence of head, scalp or neck swelling, abrasion, bruising or lacerations were found and no abnormalities were indicated on the diagnostic imaging taken at the time. The advisor went on to provide that the worker’s current difficulties were not medically accounted for in relation to the workplace accident as the worker’s initial presentation at the emergency department was not suggestive of a concussion, and they had normal neurologic findings on discharge. With respect to the worker’s attendance at the emergency department on July 18, 2023, the WCB medical advisor found the medical evidence indicated the worker’s presentation and examination was irregular and was not medically accounted for in relation to the April 20, 2023 accident.

On August 11, 2023, the worker was seen by a sports medicine physician and reported they were only working 6 hours per week due to their symptoms. They described daily frontal headaches, noise sensitivity in the mornings, some right-sided neck pain, numbness to digits 3 to 5 on the left hand and limited concentration. After examining the worker, the sports medicine physician recommended vestibular therapy for the worker and listed restrictions of 6 hours per week of light duties, avoiding bending down and prolonged concentration activities. A diagnosis of post-concussion syndrome and right greater than left cervical spine whiplash was given.

On August 16, 2023, the WCB provided the worker with a decision letter advising their entitlement to benefits would end as of August 22, 2023 as it had been determined they had recovered from the compensable injury and their ongoing difficulties were not related to that injury.

The worker requested reconsideration of the WCB’s decision to Review Office on October 11, 2023. The worker noted that their treating healthcare providers supported a diagnosis of concussion and submitted copies of reports from those providers. On October 12, 2023, Review Office returned the worker’s file to the WCB’s Compensation Services for further adjudication as some of the medical information provided had not been considered. On November 6, 2023, the WCB advised the worker in a formal decision letter, there would be no change to their earlier decision they were not entitled to benefits after August 22, 2023.

The worker again requested reconsideration of the WCB’s decision to Review Office on August 18, 2023. The worker submitted that they had sought consistent medical treatment throughout their claim and their treating healthcare providers had supported they suffered a concussion and that their ongoing difficulties all related to their April 20, 2023 workplace accident.

On September 12, 2025, Review Office determined the worker was entitled to further benefits after August 22, 2023. Review Office could not find evidence the worker had recovered from the compensable injury at the time their entitlement to benefits was ended. Review Office placed weight and relied on the evidence of the worker’s treating healthcare providers that they continued to suffer the effects of their injury and consistently reported their symptoms since the accident on April 20, 2023. The worker’s file was returned to the WCB’s Compensation Services for further adjudication.

The employer filed an appeal with the Appeal Commission on November 4, 2025 and a file review was arranged.

Reasons

Applicable Legislation and Policy

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. The applicable provisions of the Act and policies are those in effect as of the date of accident.

Section 4(1) of the Act provides for compensation to be paid by the WCB where a worker has sustained personal injury by accident arising out of and in the course of employment. Accident is defined in s 1(1) of the Act as a chance event occasioned by a physical or natural cause, a wilful and intentional act that is not the act of the worker, or an event or condition, or a combination of events or conditions, related to the worker's work or workplace, that results in personal injury to a worker.

Section 4(2) outlines that wage loss benefits are payable to an injured worker for the loss of earning capacity resulting from the accident:

Payment of wage loss benefits

4(2) Where a worker is injured in an accident, wage loss benefits are payable for his or her loss of earning capacity resulting from the accident on any working day after the day of 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.

Section 37 of the Act sets out the compensation payable to the worker following a workplace accident:

Compensation payable 

37 Where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable: 

(a) medical aid, as provided in section 27; 

(b) an impairment award, as provided in section 38; and 

(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.

Section 39(2) of the Act provides for wage loss benefits to be payable until either the loss of earning capacity ends, as determined by the board, or until the worker attains the age of 65 years.

Section 27(1) of the Act provides that the WCB may provide the worker with any medical aid the board considers necessary or advisable to cure or give relief to the worker or for the rehabilitation of the worker.

WCB Policy 22.00 entitled “Decision Making” sets out the procedures that WCB decision makers must follow when making decisions under the Act and the key legal principles and concepts that must be applied when making decisions under the Act. Pursuant to this policy, in workers compensation, the standard of proof is “balance of probabilities”. Further, decision-makers must assess each piece of evidence to “determine its relevance, credibility and reliability”.

Employer’s Position 

The employer’s representative provided a written submission. The employer’s position is that the worker is not entitled to benefits after August 22, 2023.

The employer raised a concern that they believed the worker would start a new WCB claim whenever there was a real possibility that the worker would have to return to work and that the worker was simply “unwilling to work”.

In supporting their position, the employer relied on the evidence provided by the WCB’s medical advisor on July 21, 2023 wherein the advisor states:

- “Recovery from [the injury] would be expected to resolve within a few days to a few weeks”.

- “Notwithstanding the worker’s complaints, no objective medical basis for restrictions is evidence at this time in relation to the April 20, 2023 workplace accident”.

- “Given the medical evidence on file, the reported syncopal event does not appear to be medically accounted for in relation to the April 20, 2023 workplace accident”.

Finally, the employer submits that “almost all” of the medical professionals indicated that the worker should recover from their workplace injury within 2 – 10 weeks and that they were not provided with any medical evidence related to a concussion after September 27, 2023.

Worker’s Position

The worker’s representative also provided a written submission. It is the worker’s position that they did not recover by August 22, 2023, still required medical aid and had a loss of earning capacity after that date, and is therefore entitled to benefits following August 22, 2023. The worker submits that their workplace injury caused them to suffer from a concussion and whiplash, the symptoms of which continued past August 22, 2023.

The worker’s representative relied on the following evidence:

- The August 11, 2023 Doctor Progress Report which noted that the worker was still on a gradual turn to work program, had a concussion, was suffering from daily frontal headaches, had balance difficulties, was sensitive to noise and had neck pain.

- August 22, 2023 restrictions provided by the worker’s physiotherapist, highlighting a whiplash diagnosis.

- August and September 2023 letters from the worker’s sports medicine doctor which outlined a diagnoses of post-concussion syndrome and whiplash.

Analysis

The issue in this appeal is whether the worker is entitled to benefits after August 22, 2023 in relation to the April 20, 2023 workplace injury. For the employer’s appeal to succeed, the panel would have to determine, on the balance of probabilities, there was no entitlement to benefits beyond August 22, 2023. As detailed in the reasons that follow, the panel was unable to make such a finding and therefore the employer’s appeal is denied.

Past WCB Claims

The employer argues that the worker’s past WCB claims demonstrate the worker’s “unwillingness to work”. The panel must limit its decision to the evidence before it with respect to this specific workplace injury and the worker's recovery from the injury. What has happened on other WCB claims between the worker and the employer is irrelevant to this appeal.

Recovery from Workplace Injury

The only issue before the panel is whether, on the balance of probabilities, the worker had recovered from their workplace injury as of August 22, 2023.

The panel places significant weight on the following facts and medical evidence:

- On the day of the accident, the treating hospital physician noted that the worker had pain to their T5-8 and T10 lumbar spine, sacrum and pelvic area and pain on the left side of their neck, with no obvious bruising or swelling.

- Six days after the workplace injury, the worker attended for a follow-up appointment with their treating physician on April 28, 2023. At that time, the worker complained of neck and back pain and indicated that they “kept blanking out…like my vision was coming and going” and that a few days after the workplace accident they began hearing a “booming noise” in their head. The treating physician provided a diagnosis of concussion/post-concussion at that time.

- Less than a week later, on May 2, 2023, the worker’s treating physiotherapist diagnosed the worker with a concussion.

- On June 5, 2023, the worker’s treating chiropractor recorded a diagnosis of concussion and cervical sprain/strain.

- A June 8, 2023 report from the worker’s physiotherapist noted that the worker had increased pain in their neck, headaches and vision flashing, inability to look to the left and intermittent pain to their left 2nd and 3rd fingers with left rotation. The treating physiotherapist noted a significant flare-up after a trial return to work.

- On July 18, 2023, the worker was assessed at hospital and referred to a physician for a “post-concussion consultation”.

- On August 11, 2023, the worker was assessed by a sports medicine physician who noted “persistent post concussion syndrome” and “dizziness”.

- One month later, on September 15, 2023, the treating sports medicine physician confirmed that the worker continued to suffer from a concussion and required further treatment.

The employer relies heavily on the report provided by WCB’s medical advisor on July 21, 2023. The WCB advisor provided opinions based on the medical reporting provided by the other treatment providers. The advisor’s opinions were not based on any examination of the worker nor on any discussion or conversation with the treatment providers. In these circumstances, the panel prefers the opinion of the treatment providers and gives less weight to the WCB advisor opinions.

While the panel appreciates the arguments of the employer’s representative, the worker’s medical records support that the worker continued to suffer from symptoms caused by the workplace injury after August 22, 2023. The worker and their treating medical professionals continued to reference a concussion or concussion-related symptoms starting at the date of the injury and this consistently continuing through to and post- August 22, 2023. There is no medical evidence to demonstrate, on the balance of probabilities, that the worker had recovered from their workplace injury as of August 22, 2023.

On the basis of the totality of the evidence and on the standard of a balance of probabilities, the panel is satisfied that the worker is entitled to benefits after August 22, 2023.

The appeal is denied.

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 27th day of April, 2026