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 benefits after November 2, 2022. A teleconference hearing was held on April 28, 2026 to consider the worker's appeal.

Issue

Is there entitlement to benefits after November 2, 2022?

Decision

The worker is entitled to benefits after November 2, 2022.

Background

The worker filed a Worker Incident Report with the WCB on November 25, 2022, reporting that on October 28, 2022, they injured their lower back and left leg in an incident at work. The worker described lifting a heavy item, then immediately feeling back pain and shooting pain down their left leg. The worker noted that they sought medical treatment on October 30, 2022 and was advised to remain off work for 2 weeks. The employer submitted an Employer’s Incident Report on the same date noting the worker reported they felt discomfort in their lower back while at work. The employer noted the worker was offered modified duties on October 29, 2022, and a copy of the Temporary Modified Duties Assignment form was submitted with the report. The form indicated that modified duties were available and included sedentary training duties, which were valid until November 2, 2022. The employer’s representative also provided a letter of concern to the WCB indicating the worker had returned 2 months prior to the workplace injury from a previous work injury and had not sought medical treatment for the current injury. It was further noted the worker was offered modified duties but declined and did not return to work on November 3, 2022. The representative also noted that the worker did not provide a specific work-related incident that occurred on October 28, 2022 that caused their injury.

A report from the worker’s treating nurse practitioner for an appointment on October 28, 2022 was received by the WCB on November 25, 2022. The report provided a diagnosis of sciatica and chronic low back pain for the worker and noted the worker’s complaints of chronic low back pain and left radicular leg pain that had worsened recently. The treating nurse practitioner also noted the worker declined a physical examination due to fear of worsening pain. It was recommended the worker attend for physiotherapy and reconditioning and recommended work restrictions of no heavy lifting greater than 20 pounds, no walking more than 50 feet at a time or extended periods of time standing.

The WCB spoke with the worker on December 2, 2022 to discuss their claim. The worker confirmed the mechanism of injury on their incident report, that they were lifting heavy items and then felt a sharp pain in their lower back. The worker described experiencing sharp pain and numbness in their left foot, then the following morning, their symptoms progressed and they had pain to all of their left side. The worker advised they had sought chiropractic treatment on October 28, 2022 but they did not like the treatment and did not continue. The treating chiropractor had recommended they remain off work for a week. They also sought treatment with a nurse practitioner on the same date and was referred for an MRI study. The worker then reported the injury to their supervisor on October 29, 2022, but as they could barely stand, they did not work that day and has not returned to work.

On December 2, 2022, the worker attended for an initial physiotherapy assessment. The worker reported complaints of intense low back, left buttock and posterior leg pain, medial shin and foot numbness, pain with sitting, standing, walking and bending. After examining the worker, the treating physiotherapist found the worker had a very laboured gait, minimal weight bearing through the left leg, decreased light touch sensation to the left leg from mid thigh downward, and the worker was unable to feel light touch on their left heel and lateral foot. The treating physiotherapist indicated the worker was totally disabled and had "significant limited abilities from pain". The WCB also received a copy of a report from the worker's treating chiropractor for an appointment on October 12, 2022, prior to the workplace accident. The report noted the worker had started working again 2 weeks previously after inactivity wearing heavy shoes and was reporting low back pain, radiating down their leg. At that time, the worker was diagnosed with a lumbar sprain/strain vs lumbar disc condition. Work abilities were not discussed. A report from the worker's follow-up attendance with the chiropractor on October 28, 2022, noted the worker's reporting of improvement in low back pain, radiating down the left leg with less pain and more mobility. The treating chiropractor found improved range of motion in flexion and extension and a positive straight leg raise test on the left side. It was recommended the worker speak to their family physician to be referred for an MRI. No work accident was reported.

The WCB advised the worker on December 12, 2022, their claim was not acceptable as a relationship between their current low back difficulties and an accident at work on October 28, 2022 could not be established.

Additional medical information was provided by the worker on January 24, 2023. The medical information included a lumbar spine assessment conducted on December 2, 2022. The assessment noted the worker's reporting of helping to lift 20 pound objects approximately 2 months previously and experiencing an early onset of soreness. The worker reported not being able to get out of bed the next day and attended for a chiropractor appointment. Difficulty walking and standing was also noted. The worker described intense, shooting low back, buttock and leg pain with medial shin and foot numbness, which was aggravated with sitting and standing. The physiotherapist conducting the assessment provided a diagnosis of radicular low back pain and recommended treatment. A December 15, 2022 lumbar spine MRI was also included and indicated "A large central and left paracentral disc protrusion/extrusion at the L5-S1 level has progressed since November 2020 and causes moderate to severe spinal canal stenosis. The left S1 nerve root is compromised and there could be compromise of the right S1 nerve root as well." An undated letter from the worker's treating chiropractor was enclosed as well and noted the worker was seen on October 25, 2022. They then injured themselves at work on October 28, 2022 and was seen again for treatment on October 29, 2022, reporting they could not return to work due to pain. On February 6, 2023, the WCB advised the worker the new information had been reviewed but there would be no change to the earlier decision their claim was not acceptable. The worker submitted additional medical information to the WCB on July 6, 2023 and requested the WCB reconsider the earlier decision. The medical information included a copy of a revised report from the worker’s treating chiropractor for their appointment on October 29, 2022 now noting an incident of the worker picking up heavy objects then feeling immediate pain on October 28, 2022. Also enclosed was a copy of the October 28, 2022 chart note from the worker’s appointment with a nurse practitioner indicating the worker’s 6 to 7 year history of sciatic pain that starts in the L5/S1 area and radiates into their lower leg. The nurse practitioner noted the worker had a “mildly antalgic gait” when they walked into the examination room and that the worker was looking for a referral for physiotherapy. On July 7, 2023, the WCB again advised the worker their claim was not acceptable.

On July 11, 2023, the worker requested reconsideration of the WCB’s decision to Review Office. The worker submitted the evidence on their file indicated they were injured at work with their treating healthcare providers also supporting their injury occurred at work. The worker noted they were also consistent in their reporting to the WCB and the employer when reporting the incident. On August 3, 2023, the worker submitted a report from their treating nurse practitioner indicating they had seen the worker on October 31, 2022 but the worker had not mentioned a work-related injury to them or at subsequent appointments. The nurse practitioner noted their belief the worker may not have mentioned the injury due to their “state of pain” at the time. The employer’s representative provided a submission in support of the WCB’s decision to Review Office on August 18, 2023, a copy of which was shared with the worker. On September 25, 2023, Review Office determined the worker’s claim was acceptable. Review Office found the evidence on the worker’s file supported the worker had an incident occur at work on October 28, 2022, which required them to seek medical treatment. The incident caused a change in the worker’s pre-existing low back condition, as evidenced by the progression noted on the December 15, 2022 MRI study, and the worker was unable to return to work. As such, Review Office found the worker sustained an injury in the course of and arising out of their employment and their claim was acceptable. The worker’s file was returned to the WCB’s Compensation Services for further adjudication.

The WCB contacted the worker on October 5, 2023 to gather further information. The worker described their current symptoms as pain in their lower back, shooting down both legs, their left foot, bottom of their foot and toes 2 to 5 are always numb. They experienced sharp shooting pain, with tightness that occasionally travels to the front of their right knee. The worker noted they could only sit or stand for a few minutes and ambulates with a cane. The WCB advised they would gather further information from the worker’s healthcare providers. Chart notes from the worker’s treating nurse practitioner and chiropractor were received and reviewed by a WCB medical advisor on November 13, 2023. The advisor provided the worker had a “…long history of chronic low back and left leg symptoms of varying severity going back to 2014” and the medical information on file did not support a material change in those chronic pre-existing conditions due to the workplace accident on October 28, 2022. In addition, the WCB medical advisor noted based on the reporting by the worker’s treating chiropractor and nurse practitioner, the worker was not totally disabled after the workplace accident. On November 16, 2023, the WCB advised the worker it had been determined they were entitled to wage loss benefits from October 28, 2022 to November 2, 2022, after which time the employer had offered the worker suitable modified duties and it had been determined they were not totally disabled. A report from the worker’s treating nurse practitioner dated December 6, 2023 was received by the WCB. The report noted the worker was currently unable to work due to their current physical condition. A copy of the report, which also included a portion of the worker’s past medical history and a list of the medications the worker was taking was again provided to the WCB on December 18, 2023. On December 19, 2023, the WCB advised the worker the earlier decision remained unchanged.

The worker requested reconsideration of the WCB’s decision on their entitlement to wage loss benefits to Review Office on January 15, 2024. The worker provided copies of their treating nurse practitioner’s reports of December 6, 2023 and December 18, 2023 and requested the WCB reconsider their entitlement to wage loss benefits after November 2, 2022. On April 2, 2024, Review Office determined the worker was not entitled to benefits after November 2, 2022. Review Office acknowledged the worker had significant pre-existing back difficulties and had been diagnosed with chronic back pain. Review Office found the medical evidence on file did not support the worker experienced a material change in their pre-existing condition as a result of the October 28, 2022 workplace accident and was capable of performing the sedentary type modified duties offered by the employer. As such, Review Office further found the worker was not entitled to benefits after November 2, 2022.

The worker’s representative 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 (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 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 an injured worker with such medical benefits as the board considers necessary or advisable to cure or give relief to the worker or for the rehabilitation of the worker.

The WCB established Policy 44.10.20.10, Pre-existing Conditions (the “Pre-existing Policy”) to explain when the WCB will provide compensation to a worker whose pre-existing health condition may contribute to the severity of a workplace injury or prolong a worker's recovery from such an injury. This Policy provides that wage loss benefits are payable to a worker when the WCB determines they have a loss of earning capacity resulting in part from a workplace injury and in part from a non-compensable pre-existing condition, but those benefits will cease when a worker has recovered from the workplace injury to the point that the injury is no longer materially contributing to the worker's loss of earning capacity.

Worker’s Position

The worker was present at the hearing, along with their representative, who provide a written submission and made an oral submission to the panel and answered questions posed by members of the appeal panel.

The worker's position is that they are entitled to benefits after November 2, 2022 as the evidence supports a finding the worker continued to require medical treatment and to sustain a loss of earning capacity beyond that date.

The worker’s evidence is that their return to work in the fall of 2022 was not as a result of a formal return to work plan and that modified duties were not discussed with the worker on October 29, 2022. The worker states that they were in such pain that they did not read the temporary modified duties assignment form.

The worker submits that their treating chiropractor had provided them with a note to be off work for a week as of October 29, 2022. The worker also submits that they complied with the medical advice they received on November 3, 2022 from the nurse practitioner to remain off work.

It is the worker’s position that the panel should not place significant weight on the WCB medical consultant’s opinion as to whether they were able to work on November 3, 2022 as it was received more than a year after the worker’s accident.

The worker is seeking benefits after November 2, 2022.

Employer’s Position

A representative for the employer was present at the hearing and made an oral presentation to the appeal panel.

The employer states that the worker was symptomatic pre-accident from their non-occupational injuries and their prior compensable injuries. The employer’s position is that the evidence does not support that there is a continuing compensable condition.

The employer argues that the worker was not totally disabled and was capable of modified duties, which were offered. The employer relies on the evidence that the worker continued to work after the accident. The November 3, 2022 notes from the nurse practitioner state that the worker should avoid heavy lifting but that they do not need to be off work permanently. The employer argues that the modifications were even more strict than those of the nurse practitioner.

The use of standard precautions or restrictions for various disabilities is the norm and was an acceptable practice in the employer’s opinion in light of the worker’s pre-existing condition.

The employer states that significant weight should be placed on the WCB medical consultant’s opinion, who states that the evidence is not compelling that the incident of October 28, 2022 resulted in material change, and the progression of changes seen on the MRI is expected with the worker’s pre-existing condition. The employer states that the decision of the WCB and the review office is correct and there is no entitlement to further benefits.

Analysis

The issue in this appeal is whether the worker is entitled to benefits after November 2, 2022 in relation to the workplace injury that occurred on October 28, 2022. For the worker's appeal to succeed, the panel would have to find that there is evidence the worker continued to sustain effects of the compensable injury beyond November 2, 2022 such that they required further medical aid or sustained a further loss of earning capacity. As outlined in the reasons below, the panel was able to make such a finding and therefore the worker's appeal is granted.

The panel carefully considered the worker’s pre-existing low back condition and longstanding history of low back and left leg symptoms. The panel acknowledges the medical evidence establishes that the worker had experienced chronic low back pain and radicular symptoms for a number of years prior to the October 28, 2022 workplace accident. The panel further accepts that the worker had sought treatment shortly before the accident for symptoms involving their low back and left leg.

The existence of a pre-existing condition does not preclude entitlement to compensation where a workplace accident causes an aggravation or enhancement of that condition. Pursuant to the Pre-existing Policy, benefits remain payable where a workplace injury materially contributes to a worker’s loss of earning capacity, even where a pre-existing condition is also contributing to the worker’s difficulties.

The panel places significant weight on the evidence regarding the worker’s condition immediately before and immediately after the October 28, 2022 accident. The medical evidence indicates that prior to the accident the worker remained capable of working. The chiropractic report from October 28, 2022 documented improvement in the worker’s symptoms, including improved mobility and range of motion. While the worker continued to experience some low back and leg symptoms, the evidence does not support that they were disabled from employment at that time.

The panel accepts the worker’s evidence regarding the mechanism of injury. The worker consistently reported that while lifting heavy objects at work on October 28, 2022, they experienced immediate low back pain followed by radiating symptoms into the left leg. Although the earliest medical records do not specifically reference a workplace accident, the worker’s reporting to the WCB, employer and treating providers was otherwise consistent. The panel notes that Review Office previously determined the claim was acceptable and found that a workplace accident occurred. The issue before the panel is therefore not whether an accident occurred, but whether the effects of that accident continued beyond November 2, 2022.

The panel finds that the evidence supports a significant worsening of the worker’s condition following the workplace incident. The worker reported severe pain, progressive symptoms into the left lower extremity, numbness in the foot, and substantial difficulty standing and walking. 

These reports are supported by the findings of the treating physiotherapist at the initial assessment on December 2, 2022. At that assessment, the physiotherapist documented a very laboured gait, minimal weight bearing through the left leg, decreased sensation throughout the left lower extremity, inability to feel light touch on portions of the foot, and significant functional limitations. The physiotherapist concluded that the worker was totally disabled at that time.

The panel also places weight on the December 15, 2022 MRI findings. While the MRI confirmed the existence of a pre-existing disc condition, it also demonstrated a large central and left paracentral disc protrusion/extrusion at L5-S1 that had progressed since the prior MRI in November 2020, resulting in moderate to severe spinal canal stenosis and compromise of the left S1 nerve root. Although the panel accepts that some progression may have occurred naturally over time, the MRI findings, when considered together with the worker’s sudden onset of severe symptoms following the workplace lifting incident, support a finding that the accident materially aggravated the worker’s pre-existing condition.

The panel considered the opinion of the WCB medical advisor dated November 13, 2023 that the evidence did not support a material change in the worker’s chronic condition. However, the panel assigns greater weight to the contemporaneous findings of the treating healthcare providers who personally assessed the worker shortly after the accident. In particular, the physiotherapist documented neurological findings and significant functional impairment that were not evident in the pre-accident medical reporting. The panel finds those contemporaneous findings are more persuasive regarding the worker’s functional capacity in the period immediately following the accident.

The panel also considered the employer’s position that suitable modified duties were available after November 2, 2022. The modified duties consisted of sedentary training activities and were offered based primarily upon the restrictions identified by the nurse practitioner. The panel is not satisfied that the worker was capable of performing those duties as of November 3, 2022. The evidence establishes that the worker was experiencing significant pain, difficulty sitting, standing and walking, and progressive neurological symptoms. The worker credibly testified that they were barely able to stand at that time. The panel notes that both the chiropractor and physiotherapist supported that the worker remain off work. The physiotherapist’s assessment shortly thereafter documented significant limitations that would have made even sedentary work duties an issue for the worker.

While the nurse practitioner’s restrictions did not expressly direct complete absence from work, the panel finds that the worker’s overall clinical presentation and functional limitations support a conclusion that the worker was not capable of sustaining the modified duties offered by the employer beyond November 2, 2022.

Considering the foregoing, the panel finds that the October 28, 2022 workplace accident caused a material aggravation of the worker’s pre-existing low back condition. The effects of that aggravation had not resolved by November 2, 2022 and continued to materially contribute to the worker’s loss of earning capacity and need for medical treatment thereafter.

Accordingly, the panel finds, on a balance of probabilities, that the worker is entitled to benefits after November 2, 2022. The appeal is granted.

Panel Members

R. Lemieux Howard, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 23rd day of June, 2026