Decision #35/01 - Type: Workers Compensation
Preamble
A non-oral file review was held on February 14, 2001, at the request of the claimant.
Issue
Whether or not the claimant is entitled to wage loss benefits beyond December 2, 1999.
Decision
That the claimant is not entitled to wage loss benefits beyond December 2, 1999.
Background
While employed as a production worker on July 7, 1999, the claimant suffered injuries to his head, neck and back when he passed out at his work station. Subsequent medical information revealed the following:
- A Doctor's First Report dated July 8, 1999, showed that the claimant was diagnosed with syncope, low back and neck strain and a head contusion.
- Information was received concerning a EEG that the claimant underwent prior to the July 7, 1999 work related injury. Clinical data suggested that the EEG was carried out because of a seizure due to drug withdrawal. The results were considered normal except for occasional focal slow activities in the left midtemporal region, during hyperventilation.
On February 10, 1999, the claimant had a "CT Brain Infused." No mass lesion, hemorrhage or infarct was identified.
- In a letter dated August 17, 1999, a neurologist documented that the claimant had a generalized tonic-clonic seizure on December 9th of last year. The claimant had been on the drug Zyban and had been using some alcohol but stopped using both three days before the event. There was no prior history of syncope or seizures. The claimant had a syncopal episode on July 7th of this year which was not witnessed to be a seizure.
The neurologist reported his examination findings with regards to the claimant's current status. The claimant was alert and oriented with normal speech. Pupils reacted well to light and accommodation and the fundi were normal. Visual fields and eye movements were full. The rest of the cranial nerve and neurologic exam was normal. Blood pressure lying was 130/80 on the right arm. The neurologist concluded that the event was secondary to Zyban and/or alcohol. He did not believe the claimant required an anticonvulsant unless he had another event.
- On September 2, 1999, a CT brain report revealed "normal uninfused CT scan of the brain".
- Progress reports from the attending physician received between September 1999 and November 1999, revealed the claimant was complaining of dizziness, headaches and blurred vision.
- On November 25, 1999, a Workers Compensation Board (WCB) adjudicator referred the case to a WCB medical advisor for review. The adjudicator summarized that the claimant injured his neck, low back and head on July 7, 1999 when he suddenly lost consciousness and fell to the ground. It was not certain as to the reasons why the claimant lost consciousness. The adjudicator indicated that the claimant either became dehydrated due to heat or was overcome by fumes in the workplace. The claimant's current remaining symptoms were headaches which were getting worse and frequent dizzy spells. The last medical report of November 15th revealed no objective medical findings and did not indicate if the claimant was disabled. The claimant did not have a job to return to and was claiming total disability. The adjudicator asked the medical advisor for his opinion as to whether there was a causal relationship between the compensable injury and the claimant's ongoing symptoms. The medical advisor responded as follows: "In my opinion, no. The claimant had a N (normal) neurological exam on 17/08/99."
On November 25, 1999, primary adjudication advised the claimant that in the opinion of a WCB medical advisor, there was currently no relation between the effects of the work injury and his present symptoms. It was determined therefore that the claimant had sufficiently recovered from the effects of the work accident and that compensation benefits would be paid to December 2, 1999, inclusive and final. In January 2000, the claimant appealed this decision to Review Office.
In a decision dated January 28, 2000, Review Office confirmed that the claimant was not entitled to the payment of wage loss benefits beyond December 2, 1999 based on the following rationale:
- there was no medical support to establish that the claimant's ongoing problems were related to the July 7, 1999 accident;
- the claimant had a prior history of fainting;
- there was currently no objective findings apart from headaches, dizziness and blurred vision, none of which were apparent when the claimant was examined by a neurologist in August 1999.
- the claimant cancelled various appointments and was sporadic when attending physiotherapy sessions.
On September 28, 2000, the claimant asked Review Office to reconsider its decision of January 28, 2000, based on new evidence from his treating physician dated September 26, 2000. The note stated that the claimant had pain in his neck since the injury of July 1999 and that he would benefit from further physiotherapy.
In a letter dated October 25, 2000, the Review Office informed the claimant that no change would be made to its earlier decision. Review Office was still of the view that the claimant had recovered from the effects of the July 7, 1999 accident. Review Office further indicated that any physiotherapy that was being required well over one year after the accident could not, in its opinion, be related to the soft tissue injury sustained in the accident. On November 8, 2000, the claimant appealed Review Office's decision and a file review was convened on February 14, 2001.
Reasons
This is the case of a worker who sustained injuries as the result of a workplace accident on July 7, 1999. At that time, he lost consciousness at work and fell to the ground, sustaining injuries to his head, neck and back.
This injury was accepted as compensable by the WCB and he received wage loss benefits for much of the period between the date of the accident and December 2, 1999, at which time he was informed by the Board that benefits would cease. An appeal to the Review Office was denied. He, subsequently, appealed that decision to this commission.
For his appeal to be successful, the Appeal Panel must determine that any loss of earning capacity beyond December 2, 1999 was due to the workplace accident of July 1999. The panel concluded that there was no such loss attributable to his compensable injury and, thus, that the decision of the Review Office should be upheld.
In coming to this decision, we reviewed the file very carefully. We placed considerable weight on the November 1999 opinion of the WCB medical advisor who concluded that there was no longer any relationship between the workplace injury and the claimant's symptoms. He based this conclusion on the fact the claimant had been examined in August 1999 by a neurological specialist who had reported that "the rest of the cranial nerve and neurologic exam was normal."
The same medical advisor had, on August 8, 1999, found the claimant to be capable of performing light duties as provided by his employer. This was supported by the claimant's original attending physician who, on July 23, had determined that the claimant could return to work at light duties, with a restriction on lifting over 25 pounds. Subsequent to this medical report, the claimant began seeing another physician.
We note that it is reported in the file that the claimant refused to perform the light duties offered to him by the employer.
We also note that the claimant did little to support his own cause. He missed some physiotherapy appointments. He missed an appointment for an EEG. He made little attempt to mitigate his loss of earning capacity - in addition to refusing the offered light duties, when he did find alternative employment, he quit after only a few days.
Of some influence on our decision was the fact that the claimant may have had a pre-existing condition making him susceptible to fainting or seizures. In December 1998, he had suffered a generalized tonic-clonic seizure. Under WCB Policy No. 44.10.20.10, the board will accept responsibility for loss of earning capacity:
(a) Where a worker's loss of earning capacity is caused in part by a compensable accident and in part by a non compensable pre-existing condition, or the relationship between them, the Worker's Compensation Board will accept responsibility for the full injurious result of the accident.
(b) Where a worker has:
1.) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and
2.) the pre-existing condition has not been enhanced as a result of an accident arising out of and in the course of the employment, and
3.) the pre-existing condition is not a compensable condition,
the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.
The panel made no determination as to whether or not there was a pre-existing condition, but did conclude that, even if there were, it was in no way enhanced or accelerated by the workplace injury of July 7, 1999.
Based on the medical evidence on file, we have concluded, on a balance of probabilities, that, by December 2, 1999, the claimant had recovered from the effects of the injury suffered on July 7, 1999. Beyond December 2, any loss of earning capacity was not due to the compensable injury.
Accordingly, the appeal is not allowed.
Panel Members
T. Sargeant, Presiding Officer
P. Challoner, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
T. Sargeant - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 2nd day of March, 2001