The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 17, 2005 to consider an appeal put forth by the worker's legal representative with respect to a decision rendered by the Review Office of the Workers Compensation Board which determined that responsibility should not be accepted for the worker's psychological problems and continuing headaches as a sequela of the September 25, 1997 compensable accident and for the worker's neck problems and related treatment. The Appeal Panel also considered an appeal submission put forth by the accident employer with respect to the Review Office's decision to deny cost relief. The Panel discussed these appeals on January 17, 2005.

Issue

EMPLOYER'S ISSUE:

Whether or not the employer is entitled to cost relief.

CLAIMANT'S ISSUES:

Whether or not responsibility should be accepted for the worker's psychological problems and continuing headaches as a sequela of the September 25, 1997 compensable accident; and

Whether or not responsibility should be accepted for the worker's neck problems and related treatment.

Decision

EMPLOYER'S ISSUE:

That the employer is not entitled to cost relief.

CLAIMANT'S ISSUES:

That responsibility should not be accepted for the worker's psychological problems and continuing headaches as a sequela of the September 25, 1997 compensable accident; and

That responsibility should not be accepted for the worker's neck problems and related treatment.

Decision: Unanimous

Background

On September 25, 1997, the worker bent down to pick up a screwdriver. When he started to stand back up, another co-worker opened a truck door and the worker hit his head on the bottom of the truck door. The worker reported that he did not feel the injury was bad at the time and he returned to work on September 26, 1997. The claim was accepted by the Workers Compensation Board (WCB) as a no time loss claim.

In June 1999, the worker attended the offices of the WCB to report that he was experiencing ongoing headaches, dizziness and decreased concentration that he related to the September 1997 accident.

Medical information on file contained a hospital report dated October 23, 1997. It stated that the worker complained of daily left sided headaches since an incident that occurred one month ago when he hit the back of his head with a truck door. The diagnosis rendered was questionable post concussive syndrome. An appointment was made for the worker to see a neurologist.

On November 5, 1997, a neurologist found no significant neurological findings, except for mild gait ataxia. He commented that his findings were rather subtle and that the worker's mild gait ataxia and inability to stand on one leg may be pre-existing findings. A CT scan of the brain was ordered to exclude a subdural or intracranial lesion. In a follow-up report of January 21, 1998, the neurologist stated that a November 5, 1997 CT scan revealed no abnormality. The neurological examination was again normal as were neck movements. The impression was "Post-traumatic headache syndrome now spontaneously resolving" and further treatment was not indicated at this stage.

The worker saw his treating physician in April 1999 and reported headaches and vision problems. The treating physician referred the worker to an eye surgeon and a neurologist.

In a report dated July 26, 1999, an eye surgeon found no ocular pathology to explain the worker's headaches.

In an October 21, 1999 report, a second neurologist reported findings to the treating physician of the worker describing more and more depressive symptomology and that there was a family history of depression. Neurological examination was considered normal and the worker was diagnosed with "…prolonged posttraumatic nervous instability syndrome complicated by depression and a sleep disorder which is likely prolonging the recovery." The neurologist commented that the worker's headaches were improving over time and he did not think specific therapy was indicated.

On March 7, 2000, the worker attended a hospital facility complaining of dizziness. The diagnosis rendered was "benign positional vertigo".

A Doctor's First Report from a new treating physician dated June 22, 2000, noted the worker's history of hitting his head against the bottom of a truck door. The diagnosis rendered was myofascial pain syndrome of the neck and low back.

In July 2000, a WCB medical advisor was asked to provide his opinion as to the compensable diagnosis. The medical advisor stated, "Not clear if there is one; unless depression, which is a definite dx [diagnosis], is related to CI [compensable injury]. I do not agree with a diagnosis of myofascial pain syndrome - rather to me it looks like he has tension headaches related to depression/anxiety/stress and relationship problems."

In August 2000, the worker was interviewed by a WCB psychological advisor. The advisor stated, in part, that the worker had genetic vulnerability for depressive disturbance and his developing depressive disturbance may or may not be related to a concussive injury as there may be other non-related factors that are coincidental in time. The psychological advisor felt that additional medical information was required from any physicians who had seen the worker on a pre-accident basis.

On February 26, 2001, a WCB case manager wrote to the worker to state that he had spoken to a WCB medical advisor regarding his claim. It was concluded that there was no relationship between the workplace injury of September 25, 1997 and the problems that the worker was currently having with his neck. The case manager stated that there may be a correlation between the worker's depression and his physical complaints of pain and that he would be in touch with the worker once he discussed the case with the WCB's psychological advisor and medical advisor.

In a further decision of May 30, 2002, the worker was advised of the WCB's position that there was no direct relationship between the low velocity head injury sustained on September 25, 1997 and the long term psychiatric issues and headaches. From the medical evidence, the WCB concluded that the worker's symptoms were not related to his work injury.

On October 21, 2002, legal counsel for the worker submitted an appeal submission to Review Office which included additional medical information from the worker's treating physicians. Legal counsel contended that the worker was healthy before his accident and that his headaches and neck pain started immediately when the workplace injury occurred and that the depression followed soon thereafter. Legal counsel argued that it was reasonable and logical to draw the inference that the workplace injury caused the worker's symptoms.

File information revealed that Review Office returned the case back to primary adjudication to consider the additional medical information that was submitted by legal counsel on October 21, 2002. On February 18, 2003, the WCB stated that the new medical information had been reviewed by the WCB's psychology advisor and medical advisor and it did not change their prior opinion. "We do not believe the evidence supports a causal relationship between your September 1997 workplace injury and your ongoing symptoms."

On June 13, 2003 legal counsel submitted new medical evidence to the WCB for consideration. In a response dated July 16, 2003, the case manager stated, in part, "…it is still my opinion that a direct cause and effect relationship between Mr. [the worker's] September 25, 1997 workplace injury and his current symptoms cannot reasonably be established. A temporal relationship is even in question. Other than Mr. [worker's] reported history of symptoms, we do not have any medical documentation noting ongoing symptoms subsequent to his compensable injury until he saw Dr. [family physician] on April 19, 1999. That being said, a temporal relationship does not necessarily imply a cause and effect relationship."

On July 28, 2003, legal counsel asked the WCB to forward the file to Review Office for consideration. In September and November 2003, legal counsel presented additional medical information to Review Office for consideration.

On October 17, 2003, Review Office determined that no responsibility could be accepted for the worker's psychological problems and continuing headaches as they were not considered a sequela of the compensable injury or event of September 25, 1997. Review Office commented that the evidence did not establish that the worker had a significant brain injury from the accident given that neurological exams were negative, there was no loss of consciousness at the time of the accident, CT scan and MRI assessments were negative for any abnormalities, there was no retrograde or post-traumatic amnesia and the worker continued to work for a significant time immediately following the work event with no time loss until 22 months post accident. Based on this evidence, Review Office was unable to establish that the claimant's striking his head on the truck door resulted in his having any significant injury to his brain, or that the worker's psychological problems and ongoing headaches are a fall-out from the incident.

Review Office also determined that no responsibility would be accepted for the worker's neck problems or for any related treatment. Review Office noted that the first mention of any neck problems were made in June 2000 some 2 ½ years post-accident. Review Office was unable to find any evidence that supported a direct relationship between the worker's neck difficulties and the work event of September 25, 1997.

As a result of Review Office's October 17, 2003 decision, the accident employer asked the WCB to review the worker's file for cost relief. On November 19, 2003, the WCB determined that no cost relief would be granted as "The condition for which Mr. [the worker] appealed as a WCB responsibility, and for which WCB denied responsibility, was determined to be unrelated and did not impact on his claim in any way."

On May 18, 2004, the employer appealed the WCB's decision of November 19, 2003. Given that no responsibility was being accepted for the worker's psychological problems, the employer requested 100% cost relief as it was felt that this matter had been deemed a personal problem and not a work related problem.

In a decision dated June 11, 2004, Review Office advised the employer that the costs on the claim were administrative and medical costs only. The costs covered medical investigation that was necessary in order to confirm the diagnosis and therefore considered essential to the adjudication of the claim. There was no provision for cost relief for administrative costs in the WCB's Act or WCB policy.

On June 30, 2004, the employer's representative appealed Review Office's decision concerning cost relief and an oral hearing was requested. On September 9, 2004, legal counsel for the worker appealed Review Office's decision of October 17, 2003. On January 17, 2005, an oral hearing took place at the Appeal Commission to consider both the worker's and the employer's appeals.

Reasons

As previously noted, we were asked to address appeals by both the worker and the employer. We dealt with the employer's appeal and subsequently with the worker's appeal. The employer representatives left the hearing upon completion of their presentation on the employer's appeal and did not participate in the worker's appeal.

Employer's Issue:

We were asked to determine whether the employer is entitled to cost relief.

The employer was represented by its office manager and president. The employer sought cost relief for all costs associated with the WCB's investigation and consideration of the worker's psychological condition. The representatives submitted that the costs should not be charged to the employer's cost experience because the worker's condition was not accepted by the WCB.

Analysis

The costs which are of concern to the employer are administrative costs including medical costs incurred in assessing the worker's claim. These costs were necessary for a proper investigation of the worker's claim. We note there is no provision for cost relief of administrative costs in The Workers Compensation Act (the Act) or Board policy. Accordingly we have determined that cost relief should not be provided to the employer.

The employer's appeal is denied.

Worker's Issues

We were asked to determine whether responsibility should be accepted for the worker's psychological problems and continuing headaches as a sequela of the September 25, 1997 compensable accident. For the appeal on this issue to be successful we must find a causal relationship between these conditions and the September 25, 1997 accident. We were not able to find such a relationship.

We were also asked to determine whether responsibility should be accepted for the worker's neck problems and related treatment. For the appeal to be successful on this issue we must find a relationship between the worker's neck problems and the September 25, 1997 accident. We were not able to find such a relationship.

Worker's Evidence and Argument

The worker was represented by legal counsel who made a submission on the worker's behalf. Legal counsel noted that prior to September 25, 1997 the worker was a healthy individual with no medical conditions or health problems. He did not suffer from headaches, or depression or neck pain and was functioning very well. After he hit his head at work, the worker states that his life changed. He started suffering headaches and then subsequent to that, suffered depression and, subsequent to that, realized he was having neck pain.

Legal counsel submitted that there is a temporal connection between the workplace injury and the onset of the worker's symptoms. Legal counsel reviewed the medical evidence and concluded that it supports a causal relationship between the worker's condition and the workplace injury.

She relied upon the opinion of a physiatrist which is set out in a letter to the legal counsel dated September 16, 2003. She also relied upon the opinion of a psychologist who met with the worker in late 2002 and the first quarter of 2003.

Legal counsel advised that the worker is asking the Appeal Commission to find that his medical conditions affect his capacity for employment and render him incapable of working and to make an order that the WCB is responsible for medical treatment and wage loss benefits retroactive to the date of the injury.

The worker answered questions posed by his legal counsel and by the Panel. He described the accident, subsequent symptoms and medical treatments. He explained that he did not seek medical attention immediately after the accident because he thought the headaches would resolve. When the headaches continued he went to a hospital emergency ward on October 23, 1997. He said he didn't seek medical attention between January 1998 and April 1999 because he was told by the neurologist that he saw in January 1998 that he would have headaches for about a year.

The worker described his current symptoms. He stated that he hopes to return to gainful employment and reported that he is currently volunteering at a daycare.

Legal counsel provided the Panel with a copy of an Appeal Commission decision which she considered was relevant to the issues before the Panel.

Analysis

In addressing the worker's issues on this claim, we were asked to determine that a relatively low velocity injury could result in the worker's fairly serious current medical conditions. Although the injury has been described as concussive, we find that the evidence does not establish that the worker suffered a serious head injury. In arriving at our determinations we considered the delay on the part of the worker in seeking medical attention, the period between January 1998 and April 1999 during which the worker sought no medical attention, the continuation in employment for more than two years after the injury, and the changing nature of the worker's symptoms, including the development of neck symptoms more than two years after the injury. These factors and preponderance of medical evidence have led us to conclude that the worker's current conditions are not related to the workplace injury.

Worker's Issue One

We found, on a balance of probabilities, that responsibility should not be accepted for the worker's psychological problems and continuing headaches as a sequela of the September 25, 1997 workplace accident. Having considered all the evidence including the worker's testimony at the hearing, we are not able to establish a causal link between the workplace injury and the noted symptoms.

We note that while the worker was injured on September 25, 1997, he did not attend for medical attention until he visited a hospital emergency ward one month later on October 23, 1997. He complained of a left sided headache which began in the morning and worsened over the course of the day. He was next seen by a neurologist on November 5, 1997. In a report dated November 5, 1997 the neurologist notes that the worker has been complaining of left sided headaches for about a month. Physical examination showed no significant neurological findings. However a CT scan was ordered to exclude the possibility of a subdural or intracranial lesion.

The worker was seen by this neurologist again on January 21, 1998 who advised that the CT scan showed no abnormality. The worker reported that he had improved somewhat but intermittently complained of a pressure sensation in the left occipital region. This feeling tended to occur when he was stressed, frustrated or anxious. The impression was of post-traumatic headache syndrome now spontaneously resolving. Treatment was not indicated at this time.

The worker was seen by a second neurologist who provided a report on October 21, 1999. It was noted that the neurological exam was normal. With respect to the headaches, the neurologist noted that they are localized to the occipital area and are throbbing, only occur every one or two weeks, are relatively brief and do not interfere with functional levels.

We note that the location of the headaches as reported to the second neurologist appears to have shifted from the worker's left side or left occipital area in earlier reports, to the back or occipital area. At the hearing the worker testified that 90% of the headaches were at the back of the head.

We also note that the reports of the first and second neurologist refer to the headaches resolving or improving. However, at the hearing the worker testified that "…the first year and beyond was just one constant headache the whole, the whole time." We find neurologist notes made at the time of the examinations to be more accurate than the worker's memory on this issue.

The worker saw a third neurologist on May 27, 2002. The sensory examination was unremarkable. He was not tender to any palpation of his occipital region or neck. The diagnosis advanced was post traumatic headache, etiology unknown. An MRI was ordered. The MRI report dated August 21, 2002 noted "Normal MRI of the brain." In a report to the worker's treating physician, the neurologist comments that he does not think it possible to get to the root of the problem.

We find, on a balance of probabilities, that the worker's headaches are not related to the workplace injury. The evidence shows that the location of the headaches has changed, as well there is conflicting evidence on the frequency and severity of the headaches. We note that the CT scan and MRI are normal and do not show evidence of a brain injury arising from the workplace injury. The various neurological examinations performed were normal. None of the three neurologists who examined the worker provided treatment.

With respect to the worker's psychological condition, we note that depression was first referenced on the file in a report from the first neurologist dated January 21, 1998. The report notes that the worker's fiancée says he is intermittently depressed.

When seen by the second neurologist in October 1999, the symptoms of depression were noted:

"Over time he describes more and more depressive symptomatology and over the past few months he has had frequent episodes of crying at work and at home. He finds himself feeling somewhat claustrophobic in the work situation and reaches the point of tachycardia and shortness of breath by the end of his shift and is markedly relieved to get out of the work environment. He has associated symptoms of decreased memory and poor concentration, distorted vision and visual perception difficulties that have caused errors at work."

The neurologist noted that the worker had a variety of symptoms which may have been aggravated by his girlfriend leaving him. He also noted that the worker has a family history of depression. While reporting that the headaches are improving and do not require specific therapy, the neurologist recommended being more aggressive in managing the worker's depression and sleep disorder.

The worker was assessed by the WCB's psychology advisor who interviewed the worker and conducted a thorough review of the file. In a memo dated June 12, 2002 the psychology adviser concluded that the worker's condition was not related to the compensable workplace injury. He stated there was "Simply no direct relationship between the low velocity head injury and long-term psychiatric fallout."

We accept this opinion and conclude that the worker's psychological condition is not related to the workplace injury. In arriving at our conclusion we also note that the worker was dealing with many issues. His relationship with his girlfriend was worsening and terminated with her moving out of the house. A family member committed suicide. As well, he found work very stressful. At the hearing he commented that if an employee was happy at work, a manager would come and say something sarcastic or rude. He noted that many times decisions were made that would make his job harder and he would have to redo things. He advised that co-workers also found the workplace stressful.

Worker Issue Two

On a balance of probabilities, we found that responsibility should not be accepted for the worker's neck problem.

We note that the worker continued to work for one month after the workplace incident without seeking any medical attention. When he finally saw a doctor, he did not complain of neck pain. The report of his attendance at the emergency ward on October 23, 1997, notes no tenderness in the head, neck or shoulders. It also notes normal range of motion in the neck. It does not record any complaint of neck pain.

The worker was then seen by a neurologist on November 5, 1997. No reference was made to neck pain. This neurologist examined the worker again on January 21, 1998. A report of this visit notes that neck movements were normal.

The worker saw a second neurologist. In a report dated October 21, 1999 the neurologist notes "He denies much in the way of neck pain."

The worker saw a new treating physician commencing on December 21, 1999 who ordered an x-ray of the worker's cervical spine to investigate his occipital headaches. In a report to the WCB dated November 6, 2000, the physician refers to the x-ray report which was dated May 15, 2000. He notes:

"There was a slight scoliosis, with normal vertebral height and alignment. There was slight narrowing of the disc space at C5-C6 with osteoarthritic changes in the facet joints at multiple levels and most marked at the C7-D1 level."

The physician notes that the worker complained of neck pain on June 20, 2000. A report of the June 20 visit notes subjective complaints of "chronic pain ever since, back of head, neck, dizziness, low back pain as well now." Objective findings include "tenderness occipital and para-cervical region. Movements full, painful. Tenderness para-lumbar." The diagnosis is myofascial pain syndrome, neck and low back. This is the first report of neck pain on the file, more than two years after the workplace incident.

In support of the position that the worker's neck pain is related to the workplace injury the worker's legal counsel referred to the reports of a physiatrist dated September 16, 2003. The report comments in paragraph 1 that:

"Based on the history and mechanism of injury as well as the immediate onset of symptoms that progressed over the next few days to include headaches, neck pain, nausea, dizziness and intermittent blurred vision, it is my opinion that this injury and related symptoms as well as dysfunction were the direct result of the September 25, 1997 workplace injury." (emphasis added)

However, as noted in these reasons, the worker did not complain of neck pain until more than two years after the workplace injury. The physiatrist report relies heavily upon the worker's informing him that neck pain occurred at the time of the workplace injury. We find however that the history provided by the worker is inconsistent with the facts of this case and accordingly we attach little weight to this opinion regarding a causal connection to the workplace injury.

The overwhelming evidence is that no neck symptoms were present during the first two years of the claim. As well, the x-ray reports note that the worker has osteoarthritic changes in his neck. We find, on a balance of probabilities, that the neck pain and diagnosis described by the physiatrist more than two years after the workplace injury is not related to the workplace injury and that responsibility should not be accepted for the worker's neck problems and related treatment.

The worker's appeals on both issues are denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
L. Butler, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 9th day of March, 2005