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 28, 2018. A hearing was held on March 11, 2026 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after March 28, 2018.

Decision

The worker is not entitled to wage loss benefits after March 28, 2018.

Background

The employer filed an Employer’s Accident Report with the WCB on May 10, 2016, reporting the worker injured their lower back at work on May 7, 2016, after lifting and pouring a 5 gallon pail and feeling a shooting pain. The Worker Incident Report provided to the WCB on the same date noted a similar mechanism of injury, with the worker describing feeling “…a sharp jolt or (sic) pain through my legs and back and had almost collapsed from the pain.” The worker was then assessed by the onsite medical staff and taken to the local hospital.

The May 7, 2016 report from the local emergency department noted the worker’s reporting of sudden lower back pain that radiated to the left and right after lifting a heavy object at work that day and found mild paraspinal lower lumbar tenderness and diagnosed the worker with mechanical lower back pain. A note was provided placing the worker off work for five days. Due to ongoing pain, the worker returned to the local emergency department and underwent a lumbar spine CT scan on May 9, 2016, which indicated “Old mild T12 vertebral body compression fracture. L3-4 and L4-5 degenerative disc disease with L4-5 left paracentral disc extrusion with significant potential for irritation of the left L5 nerve root. Developmental pseudoarthrosis left L5 transverse process to the sacral ala.” The worker was diagnosed with lumbar disc disease and further time off work was recommended. The worker also underwent an urgent lumbar spine MRI on May 12, 2016 which found a large L4-L5 central disc herniation with associated moderate to severe spinal cord stenosis and mild degenerative changes at L3-L4.

The worker was seen for an initial physiotherapy assessment on June 3, 2016, reporting pain in their lower back and left leg, numbness in their left thigh, lower leg and into their foot and pain and stiffness in their back, worsened by walking, sitting or standing for prolonged periods of time, difficulty sleeping and that they were ambulating with a cane. After examining the worker, the treating physiotherapist found reduced range of motion, decreased sensation to light touch in the L4-S1 area and an antalgic gait. The worker was diagnosed with a disc injury - herniation with L5/S1 nerve root involvement and it was recommended they remain off work. The worker was seen by a neurosurgeon on July 6, 2016. The treating neurosurgeon noted the worker had been seen at a local emergency department previously for possible sciatica and reported ongoing symptoms. The neurosurgeon noted the worker had a "…large L4-L5 disc herniation…" which resulted in left foot numbness and pain, with the foot having "…the features of an L5 radiculopathy." The neurosurgeon further noted the worker's pain started "several months back" after they moved a heavy object and twisted their back at work. Based on the worker's symptoms, the neurosurgeon recommended an L4-L5 microdiscectomy, which surgery was approved by the WCB on July 27, 2016, and took place on September 20, 2016.

On November 2, 2016, the worker attended for a follow-up appointment with the neurosurgeon reporting their leg pain was completely resolved and they had "…some stinging sensation in and around his incision and some tightness in his lower back." The surgeon provided the worker had done very well from the surgery and was inquiring about returning to work. The treating surgeon noted that patients with the type of surgery the worker had generally return to work between 6 and 12 weeks following surgery. On November 15, 2016, the worker had a follow-up appointment with their family physician who noted the worker was still in pain after the September 20, 2016 surgery and made a referral to the pain clinic for the worker.

Initial discussions between the worker, the WCB and the employer regarding a return to work began in February 2017. At that time, it was noted that the worker had some personal issues that were interfering with the worker's ability to return to work. On May 1, 2017, the worker had a further follow-up appointment with their treating physician who indicated the worker was experiencing lower back pain, bilateral femoral pain and was having difficulty sleeping due to pain. On examining the worker, the physician noted the strengths and reflexes of the worker's lower limbs were normal. Physiotherapy and exercise were recommended. The worker attended for an initial physiotherapy assessment on June 22, 2017, reporting pain to their lower back and left buttock and inability to perform the activities of daily living and work-related tasks due to pain. After examining the worker, the treating physiotherapist found reduced range of motion, positive straight leg raise testing bilaterally and that the worker had an antalgic gait. A diagnosis of lower back pain was provided. The worker underwent a bone scan on July 20, 2017, which indicated "Partially sacralized L5 with mildly increased activity at a pseudoarthrosis between the left lateral process of L5 and the sacrum" and "Minor uptake inferiority in the right S1 joint in keeping with degenerative change".

The worker attended for a call-in examination with a WCB physiotherapy consultant on September 5, 2017. After examining the worker, the consultant provided that the worker's functional recovery from the left-sided L4-5 microdiscectomy was slower than anticipated. It was noted the worker's treating physician had requested an updated lumbar spine MRI and it was recommended a strengthening program be developed once the MRI has been conducted and reviewed. It was further noted that the worker was not totally disabled from working and restrictions of lifting up to 10 pounds; no work in a sustained bent forward posture; and frequent position changes were recommended. The worker underwent a lumbosacral spine MRI on September 19, 2017. The study indicated:

…

L3-L4: Again present is a moderate sized left foraminal/lateral disc protrusion, unchanged from the prior study. The protrusion just contacts the left L3 nerve root in the foramina and does not compress the root. There is minimal narrowing of the left foramina.

L4-L5: There has been interval microdiskectomy. There is a residual moderate sized broad-based disc protrusion that continues to contact both L5 nerve roots greater on the left. There is now mild narrowing of the central canal…

…

At the request of the WCB, the worker attended for another call-in examination with a WCB medical advisor on February 20, 2018. The advisor opined there was no change to the worker's diagnosis and noted the examination was "…complicated by significant symptom amplification…" by the worker. It was noted the worker's current work restriction was sedentary to light work and that restriction remained appropriate. It was also recommended that the WCB facilitate a referral for further neurosurgeon consultation. On March 2, 2018, the WCB provided the worker's restrictions to the employer. On March 19, 2018, the employer advised the WCB they could accommodate the worker within their restrictions. On March 23, 2018, the employer provided the WCB with a copy of the written offer of modified duties they were attempting to provide to the worker. On March 28, 2018, the WCB received an email message from the worker's representative acknowledging the employer could accommodate the worker, within their restrictions, with a possible return to work date of March 29, 2018, and requesting further clarification of the modified duties being offered. On March 29, 2018, the WCB provided a formal decision letter to the worker advising their wage loss benefits were suspended as of March 28, 2018, as the employer had provided an offer of appropriate modified duties and the worker had not contacted the WCB or the employer and had not returned to work. On April 27, 2018, the employer provided the WCB with a copy of the modified duties offer that the worker rejected on April 13, 2018.

The worker was seen at the pain clinic on May 2, 2018, at which time a pain injection was recommended. The worker's file was reviewed by a WCB medical advisor on June 12, 2018, who opined the injection was not required as a result of the May 7, 2016 workplace accident and recommended updated work restrictions of light duties, including occasional lifts up to 20 pounds; frequent lifts up to 10 pounds; capable of walking or standing with opportunity to rest briefly; and no limitation for seated activities for a period of two months, to be reviewed after that time.

On July 18, 2018, the worker's representative requested reconsideration of the WCB's decision to end the worker's entitlement to wage loss benefits on March 28, 2018. The representative submitted that the worker continued to experience difficulties from the May 7, 2016 workplace accident and in addition, the medications they take for those difficulties, render the worker unable to balance, stand or sit for long periods of time. As well, the representative noted the worker's treating healthcare provider noted on April 12, 2018, the worker should not work until they had met with a specialist regarding a possible surgery. The representative stated that this indicated the worker required further benefits. On November 23, 2018, the Review Office determined the worker was not entitled to wage loss benefits after March 28, 2018. The Review Office placed weight and relied on a September 12, 2017 report from the WCB's physiotherapy consultant who examined the worker and determined the worker's functional assessment did not support total disability. In addition, the Review Office found the February 23, 2018 opinion of the WCB medical advisor found the worker was capable of sedentary to light work and accepted the worker was capable of performing the modified duties offered by the employer on March 23, 2018. The Review Office also found the worker's concerns with the modified duties were clarified by the employer and did not pose a barrier to the worker's return to work, which the worker did not attempt.

The worker's representative filed an appeal with the Appeal Commission on June 10, 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.

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.”

Section 22 of the Act requires that every worker must take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury and co-operate with the WCB in developing and implementing programs for returning to work, rehabilitation or disability management. If a worker fails to comply with this duty to mitigate, the WCB may reduce or suspend the worker’s compensation.

The WCB has established Policy 44.10.30.60, Co-operation and Mitigation in Recovery (the “Mitigation Policy”), which elaborates on the responsibilities of workers and the WCB in ensuring compliance with Section 22 of the Act.

The WCB has also established Policy 44.30.60, Notice of Change in Benefits or Services (the “Notice of Change Policy”), which is intended to clarify when and how notice of a loss in benefits, payments or services will be provided.

Worker’s Position

The worker was present at the hearing, along with a representative. The worker’s representative made an oral submission and responded to questions by members of the appeal panel. The worker also responded to questions by members of the appeal panel.

The worker’s position is that they continued to experience symptoms and require further medical attention beyond March 28, 2018 in relation to the injury sustained in the workplace accident of May 7, 2016.

The worker's representative submits that the worker was not medically capable of returning to work and submits that there was no evidence that the WCB-proposed modified/alternate return-to-work plan was safe and suitable for the worker.

The worker relied on the recommendation of their treating physician, who advised on April 12, 2018, that the worker should not return to any form of work until reassessed for potential surgery. It is submitted that the worker acted reasonably when not returning to work on or after March 29, 2018.

The worker submits that the “sedentary to light duties” specified by the WCB medical consultant in February 2018 were not specific enough to be an actual restriction. The worker submits that this general description differed from other consultants that were more specific in their restrictions, such as specifying weight that could be lifted or limits to frequency of movement.

It is noted by the worker that in a March 2, 2018 email the WCB case manager tried to follow up with this description of “sedentary to light duties” to get more details or specifics of what the restrictions were. The worker submits that the WCB and employer did not have enough details to expect the worker to be able to return to work at this point. The worker states that the actual restrictions were not identified or clarified until June 2018. The worker also states that, once identified, the restrictions were not communicated to the worker or the employer.

The worker also argues that the WCB did not properly communicate with their lawyer. The worker states that their lawyer emailed the case manager expressing reasonable and legitimate compensable injury-related concerns about returning to work in a remote camp setting that the WCB had not yet investigated as of March 29, 2018. Therefore, the worker argues that the suspension of benefits was premature and unjustified.

In addition, the worker argues that the notice period following the decision to terminate benefits was not appropriate. The worker’s position is that they were entitled to at least seven days’ advance notice, which they did not receive.

The worker’s position is that their wage loss benefits should not have ended and they are seeking wage loss benefits after March 28, 2018.

Employer’s Position

The employer did not participate in the appeal.

Analysis

This appeal is about the worker’s entitlement to benefits after March 28, 2018 arising out of the accident of May 7, 2016. For the worker’s appeal to succeed, the panel would have to find that as a result of the injury sustained in that accident, the worker continued to have a loss of earning capacity or continued to require medical aid beyond March 28, 2018, 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 acknowledges that the worker sustained a compensable lower back injury arising out of and in the course of their employment. The medical evidence supports that the worker experienced a significant lumbar disc herniation, underwent surgical intervention in September 2016, and continued to report ongoing symptoms thereafter. The question before the panel, however, is not whether the worker continued to experience symptoms, but whether those symptoms resulted in a loss of earning capacity beyond March 28, 2018.

The panel places significant weight on the medical opinions relating to the worker’s functional abilities leading up to March 2018. The evidence from the WCB physiotherapy consultant in September 2017 indicated that while the worker’s recovery was slower than expected, the worker was not totally disabled from all work. Functional restrictions were identified, including limitations on lifting, posture, and the need for positional changes. Similarly, the WCB medical advisor who examined the worker on February 20, 2018 confirmed that the worker was capable of sedentary to light duties and that such restrictions remained appropriate. While the advisor noted some symptom amplification, there was no medical opinion indicating that the worker was completely unable to perform any form of work.

The panel acknowledges the worker’s reliance on the April 12, 2018 opinion of their treating physician, which suggested the worker should remain off work pending further surgical consultation. However, this opinion is not supported by evidence demonstrating total disability and is inconsistent with the broader medical evidence on file, including earlier reports from the treating neurosurgeon indicating significant post-surgical improvement, particularly resolution of leg pain, as well as the WCB consultants’ opinions regarding work capacity.

With respect to the worker’s restrictions, the panel is satisfied that sufficient information was available to support a return to modified duties. While the worker argued that the description of “sedentary to light duties” lacked specificity, the evidence indicates that functional limitations had been identified prior to March 2018 and were consistent in nature. Furthermore, any lack of precision did not negate the central medical conclusion that the worker retained capacity for alternate work within defined parameters.

The panel also considered whether suitable employment was available to the worker within those restrictions. The evidence confirms that the employer offered modified duties on March 23, 2018 that were intended to accommodate the worker’s restrictions. The worker’s representative acknowledged that the employer could accommodate the restrictions, and the worker sought clarification regarding the duties. The panel finds that the employer made reasonable efforts to clarify the nature of the modified duties and that the duties offered were suitable given the worker’s functional capabilities.

Importantly, the evidence demonstrates that the worker did not make a meaningful attempt to engage in the return-to-work process. Despite being advised of the availability of modified duties, the worker did not return to work, nor did they adequately explore the suitability of the offered position. The panel finds that the worker had an obligation to participate in reasonable return-to-work efforts and to mitigate their loss of earning capacity. Their failure to do so weighs significantly in the panel’s determination.

The panel also places weight on the evidence that the WCB made multiple attempts to communicate with the worker and their representative regarding the return-to-work plan and the potential consequences of non-participation. The file indicates that the worker was advised that wage loss benefits could be impacted if they did not participate in the return-to-work process. The worker was therefore provided with sufficient notice and opportunity to respond or engage but did not take appropriate steps to do so. The panel finds that this was in accordance with the responsibilities of the WCB set out in the Mitigation Policy.

With respect to the worker’s concerns regarding communication and the adequacy of notice, the panel finds that, on a balance of probabilities, the WCB’s actions were reasonable in the circumstances. The evidence supports that the worker and their representative were aware of the return-to-work expectations and the potential suspension of benefits. The panel is not satisfied that any alleged deficiencies in communication materially affected the worker’s ability to participate in the modified duties.

The panel acknowledges that the worker’s position is that they were entitled to 7 days notice, which is standard as set out in the Notice of Change Policy. However, the panel notes that the Act allows the WCB to decide whether to change benefits or services when the worker is delaying recovery or not mitigating the effects of an accident, and in these circumstances, the WCB may provide notice in a way which may be different than described in the Notice of Change Policy. The panel therefore relies on the Mitigation Policy, which supersedes the Notice of Change Policy in these circumstances. The panel finds that the WCB acted in accordance with the Mitigation Policy.

Finally, while the worker continued to seek medical treatment, including a referral to a pain clinic, the panel notes that entitlement to medical aid does not, in itself, establish entitlement to wage loss benefits. The key consideration remains whether the worker was incapable of earning wages due to the compensable injury. Based on the totality of the evidence, the panel finds that the worker retained the capacity to perform suitable modified work as of March 28, 2018.

Accordingly, the panel finds that the worker’s loss of earning capacity ended when suitable modified duties were made available and the worker failed to participate in those duties.

Based on the evidence before us and on the standard of balance of probabilities, we find wage loss benefits are not payable beyond March 28, 2018.

The worker’s appeal is denied.

Panel Members

R. Lemieux Howard, Presiding Officer
D. Rhoda, Commissioner
M. Kernaghan, Commissioner 

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 8th day of May, 2026