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 further benefits in relation to the September 22, 2020 accident. A hearing was held on June 30, 2025 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits in relation to the September 22, 2020 accident.

Decision

The worker is not entitled to further benefits in relation to the September 22, 2020 accident.

Background

The worker filed a Worker Incident Report with the WCB on September 22, 2020 reporting they injured their lower middle back and ribs in an incident at work that day. The worker described pulling material off their work vehicle when a portion of the material slid off and dropped, pulling them backwards. The worker noted they twisted their back, after which they felt a pinching/shooting pain. The worker further noted they were seeking medical treatment and had injured this part of their back before.

On September 23, 2020, the worker attended a local walk-in clinic and was seen by a sports medicine physician. The worker reported pain to their right mid-low back after they were twisted backwards by material slipping off a truck. The worker reported "…pain to bilateral anterior ribs and right low back pain radiating to the middle back - pain aggravated with sitting/standing for 15-20 mins intervals." It was also noted the worker reported a transient tingling sensation they had not experienced before with previous back injuries. After examining the worker, the treating physician noted the worker's movements were slightly guarded, they had full range of motion with pain and tenderness at the right paraspinal muscles. The physician diagnosed the worker with a lumbar strain, and recommended physiotherapy and a week off work. The worker attended for an initial physiotherapy assessment on September 24, 2020 and was diagnosed with a mid-back strain.

The WCB contacted the worker on September 24, 2020 to discuss their claim. The worker confirmed the mechanism of injury as noted on their report and advised they were still experiencing pain, which increased with any bending or twisting. They further advised that they sought medical treatment on September 23, 2020 and was placed off work until September 30, 2020. The worker was seen in follow-up with the treating sports medicine physician on September 30, 2020 who recommended the worker return to work on modified duties of no lifting above 20 pounds, sedentary/office work only and no bending. The worker returned to modified duties on October 1, 2020. The worker had a lumbar spine MRI on December 13, 2020, which indicated "There is no evidence of left-sided nerve root compromise. There is potential for irritation of the right L5 or S1 nerve roots." The worker was seen for a follow-up appointment on December 18, 2020 with the sports medicine physician who recorded the worker's complaints of constant low back pain, which moved from lower to right upper back area and pain to the left medial thigh. The physician examined the worker and found tenderness at the mid thoracic spine and lumbar spine regions and decreased range of motion. The MRI study was reviewed and the sports medicine physician noted the worker's recovery was not satisfactory as there was no change to their condition in 8 weeks. It was noted the worker wanted to return to work, and the worker returned to their full regular duties on December 21, 2020.

Reports were received from the worker’s treating family physician noting the worker’s ongoing complaints of back pain, tenderness and stiffness, along with the worker advising they did not feel safe driving because of the effects of the medications they were prescribed. Due to the worker’s ongoing difficulties, the WCB requested the worker attend for a call-in examination with a WCB medical advisor. The call-in examination took place on April 15, 2021. The WCB medical advisor opined the worker’s initial diagnosis with respect to the September 22, 2020 workplace accident was a contusion to the bilateral chest wall and a low back strain, with their current diagnosis being a low back strain in the presence of L4-L5 and L5-S1 disc protrusions. The advisor went on to provide that the worker’s current low back symptoms were medically accounted for with respect to the workplace accident. It was noted the worker was currently working their full regular duties and the prognosis for recovery was indicated to be good however, it was further noted they had not yet completely recovered from the compensable injury and was being referred to a spine specialist.

The worker was seen by the spine specialist on May 1, 2021 and reported low back pain and posterior thigh pain bilaterally for the last 7 months that had progressively worsened. The treating specialist examined the worker and reviewed the diagnostic imaging and provided that the worker’s symptoms were “…primarily that of lumbosacral pain radiating into the posterior thighs bilaterally worse on the right than the left.” The specialist further provided that it was not clear where the worker’s pain was coming from and suggested a trial of pain injections to determine where the pain generators were. It was noted that surgery was not recommended at this time and a referral to the pain clinic was made. The worker attended for treatment at the pain clinic on May 20, 2021 where injections at the L5 and S1 nerve roots were recommended and the worker underwent the pain injections on July 13, 2021. On September 21, 2021, the worker was seen for a follow-up appointment with the spine specialist. The specialist noted the worker’s symptoms were now “…predominantly left-sided, as they were right-sided previously.” It was recommended the worker undergo a further MRI study to determine if the worker had any areas of nerve root compression into the left lower extremity. It was noted by the specialist if there was no evidence of compression, the worker would not be a candidate for spinal surgery. The worker underwent the repeat MRI on October 20, 2021, which indicated “The appearance of the lumbar spine is unchanged since the previous MRI. Disc material again contacts the right L5 nerve root at L4-L5 and S1 nerve root at L5-S1.” At a further follow-up appointment with the specialist on October 23, 2021, the specialist noted that although the worker had “…bilateral symptoms more pronounced on the left than the right, the disc protrusions could only cause potential irritation of the right traversing L5 and S1 nerve roots” and as such, the specialist noted their belief the worker was not a candidate for surgery at this time. A further referral to the pain clinic was suggested.

It is then noted that the worker sustained a new WCB injury on November 2, 2021, in the same physical area related to this claim. A new WCB claim was established. The worker returned to work on a graduated basis on modified duties in December 2021 and returned to their full duties, except for lifting restrictions in January 2022. It was also noted that the worker was involved in a motor vehicle accident on March 7, 2022.

On May 17, 2022, the worker attended for an appointment with a second spine specialist. The specialist noted the worker’s reporting of a workplace accident in September 2020, when they lifted something heavy and felt a sharp pull and experienced immediate severe back pain. The worker also reported receiving physiotherapy with modest success but continued use of medication to manage the pain. The treating specialist reviewed the diagnostic imaging and noted the imaging showed “…a significant disc injury at L4-5 and L5-S1 with a central disc herniation slightly more towards the right side at L4-5. L5-S1 is central as well.” The specialist noted the worker was in constant discomfort and pain and recommended an “…anterior discectomy and arthroplasty at L4-5 and L5-S1.” The worker’s file was reviewed by a WCB medical advisor on June 6, 2022 with respect to the specialist’s request for approval for the proposed surgery. The advisor noted the worker was examined during a call-in examination on their November 2021 WCB claim at which time functional spinal mobility, no neurological deficits and no lumbar dural tension was found, indicating the worker’s current diagnosis was non-specific low back pain. The advisor further provided that a physical impairment related to the low back strain from September 22, 2020 was not apparent and the worker’s current symptoms were not medically accounted for in relation to that accident. A second opinion was sought from a WCB orthopedic consultant. On August 22, 2022, the WCB orthopedic consultant placed their opinion to file. The consultant wrote to the worker’s treating spine specialist, who provided a response on July 26, 2022. After reviewing the specialist’s response, the consultant opined the proposed surgery was not related to the workplace accident of September 22, 2020, and would not result in a significant improvement in the worker’s pain and functioning. On August 29, 2022, the WCB advised the worker, by way of formal decision letter, that it had been determined that they had recovered from the compensable injury and they were not entitled to further benefits.

The worker provided additional information from their treating family physician, the spine specialist and their treating physiotherapist to the Review Office on January 6, 2023, and requested reconsideration of the WCB’s decision that they were not entitled to further benefits. As the information submitted was new information not reviewed by the WCB’s Compensation Services, the Review Office returned the worker’s file for further adjudication.

The November 15, 2022 report from the spine specialist, provided to the WCB by the worker on January 6, 2023, was reviewed by a WCB medical advisor on February 23, 2023. The advisor provided the information in the report did not change their August 22, 2022 opinion, however, a further opinion would be sought from a WCB physiatrist. The physiatrist examined the worker during a March 7, 2023 call-in examination and on April 25, 2023, provided an opinion in support of the February 23, 2023 opinion of the WCB medical advisor that there would be no change to the previous decisions the worker was not entitled to further benefits including approval for the proposed surgery. The WCB provided the worker with a further decision letter on April 28, 2023, advising there would be no change to the earlier decision.

On May 12, 2023, the worker again requested reconsideration of the WCB’s decision to the Review Office noting that their treating healthcare providers all support they require further treatment and surgery. On July 19, 2023, the Review Office determined the worker was not entitled to further benefits. The Review Office accepted and agreed with the opinions of the WCB medical advisors and found a relationship between the worker’s current difficulties and the September 22, 2022 workplace accident could not be established and they were not entitled to further benefits.

The worker’s representative filed an appeal with the Appeal Commission and a hearing was arranged. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On May 20, 2026, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the “Act”), regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the Act in effect as of the date of the worker’s accident are applicable.

A worker is entitled to benefits under Section 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Section 4(2) of the Act states that 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 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(2) of the Act sets out that wage loss benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years. Section 27 of the Act allows the WCB to provide medical aid “as the board considers necessary to cure and provide relief from an injury resulting from an accident.”

The WCB has established Policy 44.10.20.10, Pre-existing Conditions (the "Pre-existing Policy"), which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The Policy defines a pre-existing condition as any medical condition the worker had prior to their workplace injury, and notes that pre-existing conditions may contribute to the severity of a workplace injury or significantly prolong a worker's recovery.

A temporary worsening of a worker’s pre-existing condition is considered an aggravation of the pre-existing condition and a permanent worsening of the worker’s condition because of a workplace injury is an enhancement of the pre-existing condition.

The Policy provides that wage loss benefits will cease when a worker has recovered to the point that the injury is no longer contributing to a material degree, to the worker's loss of earning capacity, and the pre-existing condition is not a compensable condition.

Worker’s Position

The worker was present at the hearing, along with an advisor. The worker’s representative provided a written submission to the panel in advance of the hearing and made an oral submission at the hearing. The worker gave evidence in response to questions posed by their representative and by members of the panel.

The position of the worker is that the evidence supports that the worker had not recovered from the injury. The symptoms at the time of the incident were the same as when the benefits ended.

The evidence provided by the worker’s representative is that, based on the psychoeducational report from September 2023, the worker takes longer to process instructions, directions and protocols, and that this impacted their ability to solve problems, including the decision to continue to work despite being in pain. The worker’s representative argues that the worker’s neurodivergence is relevant in understanding the challenges on this file, and apparent disconnect between the treatment providers, the worker, the employer, and the WCB. It is argued that the worker was provided with vague workplace restrictions and unclear return to work duties. Further, it is argued that at no point did the WCB consider whether or not the work was suitable for the worker.

The worker’s position is that the twisting actions required during their work duties causes movement of the herniation and irritation to both sides of the nerve. The worker submits that the herniations were the cause of their radicular symptoms.

The evidence is that the worker continued to work and perform aggravating work tasks, such as lifting items over 40 lbs., bending and twisting. The worker was provided with sedentary duties, but those duties still involved bending. The worker’s position is that irregularities in their symptoms are due to their continuing to work while injured.

The worker disagrees with the WCB medical consultant who stated that the disc herniations were pre-existing. The worker’s evidence is that there were no prior reports of tingling in their leg or radiating pain. The worker states that the pain from the September 22, 2020 accident was "Different this time, as it started tingling and I've never felt that feeling before."

Should the panel find that the disc herniations were pre-existing, then the worker’s position is that the accident of September 22, 2020 aggravated their pre-existing back condition and caused neuropathic symptoms.

The worker is seeking benefits in relation to their September 22, 2020 workplace accident.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether the worker is entitled to further benefits in relation to their September 22, 2020 workplace accident. In doing so, the panel must decide whether it is more likely than not that the worker’s ongoing low back pain is causally related to the compensable injury. For the reasons outlined below, the panel was not able to make such a finding and therefore the worker’s appeal is denied.

The panel accepts that the worker sustained a compensable injury on September 22, 2020 when material slipped from their work vehicle and pulled them backward, causing a twisting injury. The contemporaneous medical evidence supports diagnoses of a lumbar strain, mid-back strain, and chest wall contusion. The worker experienced significant symptoms following the accident and required medical treatment, physiotherapy, modified duties, and a graduated recovery period. The panel further accepts that the worker continued to report low back pain and intermittent lower extremity symptoms after the accident.

The panel must consider whether the worker’s ongoing symptoms and need for further benefits remained materially related to the September 2020 injury beyond the period accepted by the WCB.

The panel places significant weight on the nature of the injury and the medical evidence regarding the worker’s recovery. The initial medical assessments diagnosed a soft tissue lumbar strain. While the worker continued to report symptoms beyond what would ordinarily be expected for such an injury, the evidence demonstrates that the worker was able to gradually increase their activity level and returned to full regular duties on December 21, 2020. The panel notes that the April 15, 2021 report of the WCB medical advisor acknowledged the worker had not yet completely recovered from the compensable injury and continued to account for the worker’s symptoms in relation to the workplace accident at that time. However, that opinion also anticipated further recovery and noted a good prognosis.

The panel notes that the December 2020 MRI identified disc protrusions at L4-L5 and L5-S1 with potential irritation of the right L5 and S1 nerve roots. A subsequent MRI in October 2021 demonstrated no material change from the earlier study. The panel is unable to conclude from the imaging evidence that the September 22, 2020 accident caused the disc protrusions. Rather, the medical evidence supports that the disc findings represented pre-existing degenerative changes that were present independent of the workplace injury.

The panel acknowledges the worker’s position that the onset of radiating symptoms and tingling sensations following the accident demonstrates that the disc pathology was either caused or materially aggravated by the workplace accident. The panel also notes the worker’s evidence that they continued performing duties involving bending, twisting, and lifting despite ongoing symptoms. The panel is not persuaded however that the evidence establishes a causal relationship between the worker’s ongoing symptoms and the compensable injury.

In reaching that conclusion, the panel places considerable weight on the opinions of the treating spine specialists. While both specialists accepted that the worker experienced significant ongoing low back pain, neither specialist was able to identify findings establishing that the worker’s symptoms correlated with the MRI findings. The first spine specialist noted shifting symptom presentations, initially predominantly right-sided and later predominantly left-sided, despite imaging that only demonstrated potential irritation of right-sided nerve roots. Following review of the repeat MRI, that specialist specifically concluded that the imaging findings did not explain the worker’s left-sided symptoms and that the worker was not a surgical candidate.

The second spine specialist who recommended surgical intervention in 2022 described significant disc pathology but did not provide a persuasive explanation connecting the proposed surgery to the September 22, 2020 workplace injury. Rather, the recommendation was based upon the worker’s ongoing pain presentation and imaging findings. The panel is not satisfied that the evidence establishes that the need for such treatment was causally related to the compensable injury.

The panel places significant weight on the opinions of the WCB medical advisor, orthopedic consultant, and WCB physiatrist. Collectively, these medical consultants concluded that the worker had recovered from the effects of the September 22, 2020 low back strain and that the worker’s ongoing symptoms were no longer medically accounted for by that injury. The orthopedic consultant specifically concluded that the proposed surgery was not related to the workplace accident. The physiatrist subsequently reviewed the additional information submitted on the worker’s behalf and reached the same conclusion.

The panel finds these opinions to be persuasive because they are consistent with the overall medical evidence, including the nature of the compensable diagnosis, the lack of neurological findings, the unchanged MRI findings over time, and the inconsistency between the worker’s reported symptoms and the anatomical location of the disc protrusions identified on imaging.

The panel has considered the worker’s argument that any pre-existing disc condition was aggravated by the workplace accident. The panel accepts that the workplace injury may have temporarily aggravated the worker’s underlying lumbar condition and contributed to symptoms for a period of time. However, under the Pre-existing Policy entitlement ends when the effects of the compensable injury cease to contribute materially to the worker’s ongoing loss of earning capacity or need for treatment. On a balance of probabilities, the panel finds that any aggravation resulting from the September 22, 2020 accident had resolved by the time of the WCB’s decision and that the worker’s ongoing symptoms were no longer materially related to the compensable injury.

The worker was involved in a second workplace accident on November 2, 2021 involving the same area of the body and a motor vehicle accident on March 7, 2022. While the panel does not need to determine the extent to which those events contributed to the worker’s ongoing condition, their occurrence further complicates the establishment of a continuing causal relationship between the worker’s current symptoms and the September 22, 2020 accident.

The panel has also considered the submissions regarding the worker’s neurodivergence and the worker’s difficulties navigating workplace restrictions, return-to-work expectations, and communications with the employer and the WCB. The panel accepts that those factors may have affected the worker’s experience of the claim and their decision to continue working despite symptoms. However, those considerations do not alter the question before the panel, which is medical in nature, namely whether the worker’s ongoing symptoms and need for further treatment remained causally related to the compensable injury. The panel is unable to make that finding on the evidence before it.

After weighing the evidence before it, the panel finds that the worker sustained a compensable low back strain on September 22, 2020, and that the worker recovered from the effects of the compensable injury. Further, the panel finds that any aggravation of a pre-existing lumbar condition resulting from that accident was temporary in nature. Therefore, the worker’s ongoing low back complaints are not shown to be materially related to the September 22, 2020 workplace accident. Accordingly, the worker is not entitled to further benefits.

The appeal is denied.

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 29th day of June, 2026