The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on August 25, 1999, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on August 25, 1999.

Issue

Whether or not the claimant is entitled to payment of further compensation benefits beyond November 14, 1986.

Decision

That the claimant is not entitled to payment of further compensation benefits beyond November 14, 1986.

Background

While performing the duties of a volunteer ambulance attendant on March 6, 1985, the claimant was involved in a motor vehicle accident at which time she was thrown forward and struck her head on the windshield twice. As a result of the accident, the claimant sustained a concussion, whiplash injury, and bruising. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly.

Ongoing medical reports showed that the claimant was treated for cervical and low back strain due to the accident. The claimant also complained of headaches, blurred vision and dizziness which necessitated treatment by an otolaryngologist (Ear, Nose and Throat [ENT] specialist). Following assessment on September 9, 1985, the otolaryngologist reported damage to the right vestibular labyrinth and then commenced treatment consisting of physical adaptation therapy plus vestibular suppressant medication.

In a follow-up report dated August 27, 1986, the otolaryngologist stated the claimant appeared to have recovered from the loss of labyrinthine function which was identified in November 1985 and could probably return to work. On September 29, 1996, the family physician was of the view that the claimant still suffered from symptoms similar to a labyrinthine dysfunction.

On October 27, 1986, the claimant was examined by a WCB medical officer who commented that the claimant continued to complain of symptoms which he was unable to objectively explain. On November 5, 1986, the claimant was advised that temporary total disability would be paid to November 14, 1986 as it was considered she had recovered from the original work place injury.

Subsequent reports from the family physician indicated that the claimant had not recovered from her compensable injury and was experiencing severe bouts of vertigo. The otolaryngologist reported on February 20, 1987, that a positive vestibulospinal test was of questionable validity in view of completely normal laboratory and office test results.

On December 14, 1987, a Medical Review Panel (MRP) was held because of a difference of medical opinion. The MRP unanimously agreed that the claimant did suffer an injury to her labyrinth apparatus in the injury of March 6, 1985, but there was no objective evidence of continuing problems related to that injury subsequent to August 1986. There was no objective pathology to explain the claimant's persistent symptomatology subsequent to November 14, 1986. In the MRP's opinion, the claimant had recovered from her accident injuries as of August 1986 and was fit to return to her previous employment.

The claimant underwent further investigations by the otolaryngologist and because of certain unexplainable test discrepancies, the specialist recommended an examination at the Mayo Clinic. The claimant was tested at the Mayo Clinic on October 11, 1989 and the report indicated, in part, that an organic cause for her symptoms could not be identified.

The case was reviewed by the WCB's Ear, Nose and Throat specialist in November 1989. He stated that the sensory and motor portions of the claimant's balance and postural control systems were normal. While the Mayo Clinic report identified an unexplainable response to one particular test, the specialist concurred that the test findings did not explain the severity of the claimant's reported symptoms. It was therefore felt that the March 6, 1985 accident could not be blamed for the claimant's present symptoms and her ongoing vertigo.

In a decision dated November 10, 1989, the Review Committee confirmed that no further responsibility could be accepted beyond November 14, 1986. Review Committee concluded there was no substantive objective pathology to account for the claimant's reported complaints beyond November 14, 1986. The present medical information did not substantiate the claimant's symptoms beyond that date were related to the effects of the March 6, 1985, accident.

In May 1999, the claimant's solicitor requested an Appeal Panel hearing as his client wished to appeal her case on the grounds that her inability to return to work until 1991 was related to the March 6, 1985 injury.

On May 27, 1999, the Appeal Administrator wrote to the solicitor inquiring whether further medical documentation would be submitted prior to the hearing as the last medical report on file was from 1989. The solicitor advised the Appeal Administrator that he was bringing the claimant's physician to the hearing as he felt this would be better than a report as it would allow the Panel to ask the physician questions. On August 25, 1999, an Appeal Panel hearing was held and the claimant's family physician appeared as a witness.

Reasons

The issue in this appeal is whether or not the claimant is entitled to the payment of further compensation benefits beyond November 14, 1986.

The claimant through her lawyer has requested that benefits be extended beyond November 14, 1986 arguing that the claimant did not recover from the effects of the accident of March 4, 1986 until December 31, 1990.

At the time of the accident on March 6, 1985, the claimant was a volunteer ambulance attendant escorting a patient to a hospital in Winnipeg. The driver of the ambulance came upon ice on the road and lost control of the vehicle which slid into a ditch causing the claimant to strike her head on the windshield twice.

The initial diagnosis was of a whiplash type injury with a concussion and contusions. A CT brain scan was performed approximately one week following the accident because of the claimant's complaints of dizziness and blurred vision. No abnormality was identified.

On March 13, 1985 the claimant was examined by a neurologist who felt her examination was normal. The neurologist was not able to identify the cause of the claimant's headaches but felt that it was not due to any collection of blood over the surface of the brain nor due to any serious intracranial injury.

The claimant continued to complain of headaches, dizziness, and blurred vision which resulted in her being called in for an examination by a WCB medical advisor on July 30, 1985. The examining WCB medical advisor felt that the objective findings did not support the subjective complaints as there were relatively few findings. However, the medical advisor also recommended that, if the symptoms of blurred vision and headaches continued, the claimant should be reassessed by a neurosurgeon.

On September 9, 1985 the claimant was seen by a consulting specialist in otolaryngology to assess her vestibular symptoms. The specialist recorded complaints of episodic, rotatory vertigo with a staggering gait, nausea, head pressure on the right side and bilateral tinnitus. The otolaryngologist had the claimant tested in a vestibular laboratory on November 13, 1985.

Vestibular testing confirmed the claimant had suffered some damage to her right vestibular labyrinth and that the claimant had not yet fully compensated for this damage. It was recommended that treatment should consist of physical adaptation therapy and vestibular suppressant medication.

The same specialist reported to the WCB on February 14, 1986 that the claimant was not falling as frequently and that her medication had been changed. It was felt that she had improved slightly. This specialist further indicated that the claimant was not yet fit to return to work because of her postural instability and vertigo. He notes, at that time, that the claimant only reported one fall in one month.

The attending family doctor subsequently referred the claimant to a consulting neurologist who examined her on March 13, 1986. The neurologist concluded that it was impossible to relate the claimant's constellation of symptoms to her mild head injury and requested a repeat CT scan. The further CT brain scan performed on June 17, 1986, revealed no abnormality. On June 20, 1986 the neurologist indicated from the CT that the claimant's symptoms were markedly out of proportion to the degree of trauma suffered and that there was no contradiction to the claimant returning to some form of employment.

On July 10, 1986 the consulting otolaryngologist advised the WCB that before making a decision about a return to work, the claimant still had stumbling episodes and therefore vestibular and auditory testing would be repeated on August 25, 1986 and that a report would follow. This report, dated August 27, 1986, indicated that the claimant had recovered from the loss of labyrinthine function and would probably be able to return to work in the near future. The consulting otolaryngologist indicates in his report:

" Audiogram showed her hearing to be within normal limits. There was a slight asymmetry of nystagmus during rotation testing, but the results from a Hallpike bithermic caloric test were within normal limits.

It would appear that she has recovered from the loss of labyrinthine function that we identified in November of 1985 and will probably be able to return to work in the near future."

Based on the reports of the consulting neurologist and otolaryngologist, benefits were terminated effective September 4, 1986.

The attending physician subsequently wrote to the WCB on September 29, 1986 arguing that the claimant's complaints were legitimate and that her benefits should not have been terminated. As a result of the medical advocacy by the claimant's physician, the WCB arranged for the claimant to be examined by a different WCB medical advisor on October 27, 1986. The report which is on file concludes:

"Claimant continues to have complaints of symptoms which I am unable to objectively explain on the basis of my examination. Consultations with orthopaedic consultant, neurosurgeon, and ENT specialists have failed to find any residual objective signs of disability. Of note is that the ENT specialist in his recent report following further investigation, indicated that labyrinthine function was normal. The claimant was also interviewed by our WCB Neurosurgeon who confirms the above impression and feels as I do that the claimant should be encouraged to return to more active participation in her environment."

On January 26, 1987 the otolaryngologist reported that a vestibulospinal test had been done which was "very positive." When asked by a WCB medical advisor to clarify this, the otolaryngologist and the medical advisor agreed that that the vestibulospinal test was not significant and that "by itself, does not indicate disturbed labyrinthine function." To clarify his comments the otolaryngologist indicated in a subsequent report:

" As you know, we tested her (the claimant) in the laboratory on August 25, 1986, we were unable to detect any abnormality. On clinical examination of her vestibular system, her audiogram was within normal limits and her vestibular tests were also normal.

We also did a vestibulospinal test which was positive. It is difficult to assess the validity of the vestibulospinal test in view of the normality of the laboratory and office test done on August 25, 1986 and January 6, 1987."

On June 2, 1987 the claimant's attending physician wrote to the WCB again and indicated that, in his opinion, her labyrinthine function was not normal. He also stated that she could return to some type of work but she could not return to her pre-accident job as an ambulance attendant.

As a result of the apparent difference in medical opinion, the WCB determined that a Medical Review Panel (MRP) should be struck under subsection 54.1(4) of the Act. The panel, composed of a medical Chairperson and specialists in neurology and otolaryngology, was convened on December 14, 1987. The claimant’s attending physician was present as well as the claimant’s husband and lawyer. The panel was requested to respond to six questions . In this appeal, the most pertinent questions were:

The panel was unanimous in their opinion that:

• the vestibulospinal test was not significant;
• that there was no objective evidence of continuing problems related to the injury subsequent to August 1986;
• that the claimant was not totally or partially disabled from regular vocational activities beyond November 14, 1986;
• that recovery had occurred as of August 1986, and that the claimant was fit to return to her previous employment.

On May 19, 1988 the specialist in otolaryngology indicated that further vestibular testing had been carried out which had been predominantly within normal limits except a sensory organization test which the otolaryngologist indicated “he had some difficulty interpreting because it did not appear to fall within any known abnormality pattern.”

As a result of this, the otolaryngologist suggested a second independent evaluation and, as a consequence, the WCB authorized further testing at the Mayo Clinic which took place on October 11,1989. The Director of Clinical Vestibular Services from the Mayo Clinic who reported back to the WCB stated in part:

“ Today’s evaluation centered around the vestibular systems, both peripheral and central. We also concentrated on vestibular/ocular motor pathways in the brain stem and cerebellum. The sole abnormality was a 6.8 degree positional nystagmus behind closed eyes in the supine-head-right position. This is a non localizing finding although it may represent residual of a labyrinthine concussion. This finding alone would not explain the severity of Mrs. (the claimant’s) condition and I do not know of an organic cause for the physiologically inconsistent posturography findings. The sensory and motor portions of her balance and postural control systems are normal as best we can tell using state-of-the-art equipment.” (emphasis ours)

A WCB medical advisor was asked to comment on the Mayo Clinic test results which he discussed with the consulting otolaryngologist who agreed, on considering the report that:

“Mayo Clinic report shows similar findings to Dr. (the consulting otolaryngologist’s) with an unexplainable response to one test.”

“ The sensory and motor portions of her balance and postural control systems are normal. ‘ Can not provide an organic cause for her symptoms and test findings."

These findings are the same as Dr. (the consulting otolaryngologist’s). Therefore the accident can not be blamed for her ongoing vertigo.”

The claimant was represented by a lawyer at the appeal hearing on August 25, 1999 and her attending physician appeared as a witness. We note that same lawyer and attending physician had been present at the MRP and the physician indicated he had given similar evidence to the MRP. The last medical report on file was dated in 1989. The claimant’s attending physician read a statement into the record. The attending physician indicated that he had retired from practice but that he had been the claimant’s attending physician until approximately 1988.

We were also advised that the appeal had been held off since 1986 (approximately thirteen years), on the advice of the lawyer in the hope that a new test would prove the contention of disability beyond November 14, 1986 when benefits were terminated. In this case we have been asked to address an issue related to the claimant’s entitlement to benefits from November 14, 1986 until December 31, 1990.

At the hearing the claimant’s representative argued that the claimant’s disability was causally related to the compensable event through physical symptoms, or in the alternative, from the development of a psychological condition as a result of the compensable event. In support of his argument regarding the alleged psychological condition, the advocate submitted copies of three decisions rendered by an appeals tribunal from a different jurisdiction as well as a copy of the WCB (Manitoba) policy on “Psychological Conditions.”

However, with respect to this contention, we note that the file evidence does not contain any suggestion of a psychological component or condition by any of the specialists, or medical advisors, who treated or examined the claimant, nor was there a referral, or a suggestion of such a referral, to a psychiatrist, psychologist or counsellor at any time during the management of this claim. At the hearing, the claimant’s treating physician testified to the effect that he had wondered, at one point, whether there could possibly be a psychological component to the claimant’s complaints but no referral for psychiatric/psychological assessment was made as, in his opinion, the indicators for such a referral or assessment were not present.

We find, based on a balance of probabilities, that the claimant had recovered from the physical effects of her compensable injury by November 14, 1986 and was fit to return to her pre-accident employment as supported by the overwelming weight of the evidence, in particular that of the otolaryngologist, the medical review panel, the WCB medical advisors and the opinion provided from the independent vestibular assessment performed by the Director of Vestibular Services at the Mayo Clinic. We further find that the contention that the claimant’s disability resulted from a psychological component is not supported by the evidence or the facts of this case as previously outlined with respect to this issue.

Based on these findings we conclude that the claimant is not entitled to benefits beyond November 14, 1986 and her appeal is therefore denied.

Panel Members

D.A. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 14th day of September, 1999