Decision #142/07 - Type: Workers Compensation

Preamble

This is an appeal by the worker of Workers Compensation Board (“WCB”) Review Office Order No. 20/2007 holding that he had recovered from the compensable injury.

On June 14, 2005, the worker suffered a head injury while performing his work duties as a mechanic. Subsequent to the accident, the worker developed severe headaches, eyelid drooping, left sided facial numbness, memory difficulties, photophobia and an increase in his pre-existing tinnitus condition. In October 2005, the worker returned to modified duties on a reduced work schedule but later ceased working near the end of January 2006 due to compensable and non-compensable reasons. On August 30, 2006, the WCB ended the worker’s wage loss and medical aid benefits on the grounds that he had recovered from his compensable injury, that there was no objective evidence of a brain injury and that the worker’s musculoskeletal symptoms and associated physical restrictions were secondary to rheumatoid arthritis which was not related to his compensable injury.

On January 10, 2007, Review Office determined that the worker suffered a closed head injury at the time of his accident, but concluded that his inability to return to his pre-accident duties was due to non-compensable reasons. The worker disagreed and appealed to the Appeal Commission. A hearing was then held on September 5, 2007. The worker appeared and provided evidence. He was assisted by a worker advisor. No one appeared on the employer’s behalf.

Issue

Whether or not the worker is entitled to wage loss benefits and medical aid benefits beyond August 30, 2006.

Decision

That the worker is entitled to wage loss benefits and medical aid benefits beyond August 30, 2006.

Decision: Unanimous

Background

On June 14, 2005, the worker was going underneath a truck when he struck his head (left occipital region) on an automatic air tank drain. He immediately experienced pain and nausea from the injury. On June 27, 2005, the worker attended a hospital emergency facility with headache complaints as well as numbness to the left side of his face. The diagnosis rendered at this time was a possible concussion.

When seen by a neurologist on July 7, 2005, the worker reported that he felt a soft bump on his head about a week earlier and that he developed headaches which he treated with Tylenol. The headaches increased in severity and he developed an ataxic gait and the left side of his face went numb. He also developed photosensitivity. A CT scan taken at the hospital showed no abnormality. The specialist’s impression was that the worker suffered a small lacunar infarct. He felt the blow to the head may have caused the worker to have damage to his vertebral arteries or carotids.

On August 22, 2005, a WCB medical advisor examined the worker and felt that his symptoms were primarily related to the post-concussive effects of a closed head injury.

On October 13, 2005, a WCB case manager indicated to the file that the worker’s return to work was going okay and that his headaches and face warmness/numbness were deceasing and his symptoms were not preventing him from working.

At a call-in examination by a WCB psychiatric consultant on November 21, 2005, it was recorded that the worker continued to experience headaches, although less frequently than immediately post-injury. She noted that the worker’s headaches were sometimes preceded by hearing a high pitched sound in his left ear followed by pulsating in his left ear, and were worsened by posture, exposure to noise and being physically jarred. The consultant believed the worker’s headaches were migraine in nature. She noted that the worker began a graduated return to work program but was unable to tolerate six hour shifts, three times a week. It was suggested that the return to work process become more gradual and done over a more prolonged period of three to four months.

In a referral letter to a psychiatrist dated December 5, 2005, the treating physician noted that the worker’s “neuralgic type pain” made him feel irritable, angry and depressed. He noted that the worker also had arthritis flare ups about once a month. Despite this he has been able to work 4 hours per day.

On December 12, 2005, a clinical neuro-psychologist reported that the worker’s memory, attention, concentration, language, spatial functions, abstract reasoning and intellectual abilities were assessed to determine if he had any residual effects from his June 14, 2005 head injury. He stated the worker was above average in some of his skills and generally normal on other tests. Emotionally, his affect was stable without disinhibition. He had a pleasant demeanor with no ‘organic’ signs such as lability. Physically, however, the worker described several sequelae of his concussion which included relatively severe headaches and exacerbation of his previous tinnitus.

On December 13, 2005, the clinical neuro-psychologist reported to the WCB medical advisor “Since his cognitive functions were generally normal, it is now going to be the physical sequelae that will be affecting his stamina at work.”

An audiologist reported on February 24, 2006 that the worker reported a bilateral hearing loss of sudden onset. This occurred when a tire he was working on exploded. The worker now complained of bilateral tinnitus and a reduced tolerance to sound. His assessment of the worker’s hearing was mild to moderate bilateral sensorineural hearing loss.

The worker attended a physiotherapist for treatment on April 11, 2006. On May 29, 2006, the WCB physiotherapy consultant authorized physiotherapy focusing on the worker’s neck and general conditioning. Other medical conditions (the right shoulder and left knee) were not considered to be a WCB responsibility.

On March 28, 2006, an audiologist noted that the worker was currently in great distress due to constant bilateral tinnitus and recruitment (an abnormal growth in loudness of sounds). A hearing aid for the worker to filter the volume of sound in a controlled fashion was recommended.

In a July 9, 2006 medical report, a second physician noted that the worker had pre-existing medical conditions consisting of hypertension, seronegative rheumatoid arthritis, and inflammatory osteoarthritis. These arthritic conditions affected his hands, wrists, fingers, lumbosacral spine and both knees. His opinion was that the worker’s progress had been prolonged and protracted and his rate of recovery was slow. He anticipated no permanent impairment and no sequelae resulting from the effect of the worker’s compensable accident. He also anticipated that the worker would continue to be bothered by his pre-existing conditions and would require treatment, medication and therapies for these conditions. He felt the worker was fit and able to perform all of his domestic duties, chores, tasks and responsibilities but was not yet fit to return to his job as a mechanic.

On June 13, 2006, a physiotherapist reported that the emphasis of treatment was conditioning, strengthening and balance training. The worker demonstrated entire left sided weakness and decreased sensation. He presented with movement and gait typical of left hemiplegia. He currently tolerated 35 minutes of physical exercise with frequent rests. His chief complaints were related to tinnitus, photophobia and left occipital pain exacerbated by heat, light and physical activity. Treatment of neck pain was a small part of the physiotherapy treatment.

On July 19, 2006, the treating physiotherapist provided a narrative report regarding the worker’s physiotherapy treatment. In her opinion, the worker was not able to return to his work as a mechanic given his current pain triggers and physical deficits.

A report from a rheumatologist dated July 26, 2006 indicated that the worker had positive impingement at his left shoulder and there was swelling and tenderness at the left third MCP joint as well as the DIP and PIP joint. His impression of the worker’s condition was a flare up of his rheumatoid arthritis and significant ongoing impairments post brain injury. The specialist recommended an increase in medication to settle the worker’s musculoskeletal symptoms secondary to his rheumatoid arthritis.

On August 11, 2006, a WCB senior medical advisor reviewed the file and stated that most of the worker’s problems relate to his pre-existing medical conditions. He did not know if the worker had any restrictions related to his compensable injury.

On August 17, 2006, the treating physiotherapist requested 14 additional weekly treatment sessions for the worker to include conditioning and balance training with the goal of improving safety and ability to do adult daily living activities which would improve the worker’s quality of life. She noted the worker’s gait, coordination and speech deteriorated with fatigue.

On August 21, 2006, the WCB’s psychological advisor outlined her view that based on medical records including a CT scan and MRI as well as normal neurophysiological tests and assessment, there was no objective evidence of a brain injury. Therefore there were no psychiatric restrictions.

The second treating physician, in a report dated September 13, 2006, was of the opinion that the worker was currently fit and able to return to work with the following limitations and restrictions:

  • to avoid excessive noise because of ongoing difficulties with tinnitus and sensitivity to loud noises.

  • given his longstanding rheumatoid arthritis affecting his hands, wrists and fingers and knees, the worker is able to perform only sedentary or light nature duties at a position such as a service administrator. He continued to experience weakness in his left arm and left leg since his head injury and is unable to do work which was of a very heavy, heavy or medium nature;

  • the worker should not operate heavy equipment or do work which consists of physical labor such as his previous job as a mechanic due to the side effects of medication that he is taking for his chronic pain, headaches, hypertension and rheumatoid arthritic condition.

On November 3, 2006, the worker was advised by WCB that its earlier decision of August 23, 2006 would stand. The adjudicator advised that the restrictions outlined in the treating physicians’ report of September 13, 2006 were not related to the compensable injury but rather to his pre-existing condition of rheumatoid arthritis.

In a letter to a worker advisor dated April 5, 2007, the employer noted that the worker continued to work with reduced hours in their service department, administrative office. It stated the worker’s head injury and tinnitus condition do limit his work options. A successful return to his re-injury work duties as a diesel mechanic was unlikely.

In a May 14, 2007 report to the worker advisor, the treating physician provided the following opinions:

  • the worker’s current primary diagnosis was chronic daily headache syndrome that was related to his compensable accident of June 14. Additional medical diagnoses were rheumatoid arthritis, hypertension, inflammatory osteoarthritis, chronic bronchitis, depression and anxiety.

  • the worker developed symptoms secondary to the work related accident which continue to bother him on a daily basis, i.e. chronic neck muscle pain and stiffness, daily headaches, poor sleep pattern, difficulty with concentration and hyperesthesia of his scalp/left neck/left face.

  • based on a chart review in August 2006, the above symptoms were still prevalent as a result of the accident but were reduced in their intensity because of the medications the worker took to treat his daily headaches.

  • the worker had a long history of tinnitus preceding the date of his work related accident. Over the past two years, this condition worsened. The deterioration of his hearing and worsening tinnitus are related to other factors than his workplace accident such as prolonged noise exposure and aging and a causal relationship does not exist between his work-related injury and the deterioration of his long-standing tinnitus.

  • restrictions that prevent the worker from returning to his previous job consist of the inability to climb, bend, crawl, lift or carry objective greater than 10 pounds because of active rheumatoid arthritis affecting his hands, wrists and fingers. He cannot tolerate loud sounds in the workplace as they exacerbate his chronic daily headaches.

  • the worker continues to require treatment with medication for his chronic daily headache syndrome related to the compensable injury. The medication helped in reducing the frequency and intensity of his headaches and enabled him to continue working on a regular basis at his sedentary administrative position.

  • the worker has not completely recovered from his compensable injury as the effects of his traumatic accident continue to be related and play a role in the production of his symptomatology. The worker continues to require treatment for the effects of the injury he sustained in the traumatic accident. Although the current clinical status has improved from one year ago, he continues to require treatment for his chronic daily headaches on a regular basis in order to function and continue working his sedentary, administrative position. The worker has not fully recovered from his compensable injury, given the absence of any headache disorder prior to the accident and the prolonged headache disorder he has had subsequent to the accident. There were no other factors that were responsible for causing and perpetuating his chronic daily headache disorder apart from the traumatic injury he was involved in on June 14, 2005.

Following consideration of above report, Review Office, on June 7, 2007, indicated that it remained of opinion that the worker had recovered from his compensable injury and was not entitled to benefits after August 30, 2006.

Reasons

For the panel to grant medical aid benefits beyond August 30, 2006, the panel would have to find, on a balance of probabilities, that the worker had compensable medical conditions that continue to be related to the workplace accident of June 14, 2005. The panel was able to make this finding, specifically with respect to the worker’s tinnitus and chronic headache conditions.

The worker has also asked for wage loss benefits beyond August 30, 2006. For the panel to grant wage loss benefits, it would need to find, on a balance of probabilities, that the worker continued to suffer a loss of earning capacity due to the compensable injuries (the tinnitus and chronic headache conditions). The panel was able to make this finding in part, and finds that the worker is entitled to wage loss benefits beyond August 30, 2006.

Legislation

Subsection 27(1) of the Act provides that workers are entitled to medical aid in respect of compensable medical conditions that are causally related to the workplace accident.

Subsection 4(2) of the Act provides that workers are entitled to wage loss benefits where there is a loss of earning capacity that is causally related to a worker’s compensable accident. Subsections 39(2) and 40(1) discuss the duration and calculation of wage loss benefits.

Analysis

Medical aid:

This worker suffered a head injury which was diagnosed as post-concussive syndrome. His benefits ended when the WCB determined there was no “objective” evidence on an MRI of a head injury.

After a review of the extensive medical documentation on the file, as described in the background, the panel has come to a different conclusion, and finds that the worker has continued to experience specific physical sequelae of his post-concussive syndrome. We find that these sequelae are the headaches (described as a chronic headache syndrome) and permanent increases to the worker’s pre-existing tinnitus condition.

In this regard, the panel notes that the worker’s reports of headaches started within days of his workplace accident, and have been consistently present and consistently reported to the various healthcare practitioners who have been involved with the worker’s care. The panel accepts the opinion of the worker’s attending physician and the clinical neuro-psychologist that this condition is a sequela of the concussion suffered by the worker, and is causally related to the original injury and the described mechanism of injury.

With respect to the tinnitus, the medical evidence discloses that the worker did have a pre-existing tinnitus condition. The panel notes that the worker reported increased symptoms and a wider variety of triggers for the tinnitus since the workplace accident. There is, however, some dispute among medical practitioners on whether the deterioration of the worker’s tinnitus was caused by the workplace incident (a blow to the head) or by the passage of time and aging.

In this regard, we note that during the worker’s interview with the WCB psychiatrist in November 2005, the worker reported that his headaches were often preceded by a high pitched sound in his left ear and associated pulsing in his left ear. Later, the clinical neuro-psychologist also describes the worker as having an exacerbation of his tinnitus condition as a consequence of his injury.

Although it can be difficult to separate the deterioration of a pre-existing tinnitus from the possible effects of a concussive type injury, we place weight on the apparent temporal correlation of when the worker’s headaches start (which we have found compensable) and the high pitched sounds and pulsing (the tinnitus symptoms) which appear at or around the same time. From the worker’s evidence, these conditions continue to co-exist with one another, and we find that the worker’s tinnitus condition was in fact enhanced as a result of the compensable injury and therefore is causally related to his workplace injury.

As a consequence of these findings, the panel concludes that the worker’s headaches and tinnitus condition are causally related to the workplace injury. As such, the worker is entitled to medical aid for these medical conditions.

Although the worker and his advocate argued that the worker’s left sided weakness (down to his leg) was related to the closed head injury, the panel notes that the medical evidence does not indicate neurological findings or a specific diagnosis to support a causal connection between the worker’s head injury and these particular symptoms.

The panel also notes from its review of the medical reports on file that the worker has a variety of non-compensable medical conditions of a significant nature. These include seronegative rheumatoid arthritis, which affects the worker’s hands, wrists, and fingers, and osteoarthritis affecting the worker’s knees and shoulders. The panel confirms that these are not compensable conditions but, as noted later in this analysis, these conditions will also lead to a series of preventive workplace restrictions that may impact on the determination of appropriate wage loss benefits.

Wage loss benefits:

As noted above, the panel finds that the worker has compensable medical conditions (tinnitus and chronic headaches) still in play as of August 30, 2006. Under Section 39(2) of the Act, this allows the panel to consider whether the worker had a loss of earning capacity (wage loss) as of that date that is directly related to these medical conditions.

The panel notes that this case is complicated by the worker having compensable medical conditions (and related workplace restrictions) as well as serious non-compensable medical conditions, at the relevant date of August 30, 2006. The panel finds that there will be a wage loss entitlement, based on the following determinations (which are more fully discussed in the analysis immediately following):

a. The worker’s non-compensable medical conditions (in particular his seronegative rheumatoid arthritis and osteoarthritis) had progressed so that by August 30, 2006 the worker would have been unable to perform his diesel mechanic’s job, even if he did not suffer the workplace injury.

b. The worker’s compensable medical condition would also have precluded him from working as a diesel mechanic on August 30, 2006, because of the noisy environment where the worker had performed his job duties as a diesel mechanic.

c. The worker is unable to perform his pre-accident duties from August 30, 2006 and forward because of both his pre-existing and compensable medical conditions. Under the relevant WCB Policy, the WCB is responsible for his wage loss.

a. Could the worker have returned to his regular job duties as of August 30, 2006, as a result of non-compensable medical conditions?

The panel notes from the evidence on file and at the hearing that the worker was suffering from non-compensable medical conditions which appear to have been worsening while he was off work, and may themselves have precluded the worker from going back to his regular duties as of August 30, 2006.

Dealing firstly with the non-compensable medical conditions, the medical evidence cited in the background notes that the worker had a significantly advanced rheumatoid arthritis condition already present at the time of his injury, as well as severe osteoarthritis. These conditions affected the hands, wrists, and fingers of the worker, as well as his shoulders and knees. As to the severity of these conditions, the panel notes that in a report dated March 14, 2007, the worker’s treating physician places the workplace restrictions on him, including, “the inability to climb, bend, crawl, lift or carry objects or (sic) greater than 10 pounds because of active rheumatoid arthritis affecting his hands, wrists and fingers.” The panel finds that these conditions and associated medical restrictions would, in and of themselves, have precluded the worker from working as a heavy duty mechanic.

The panel notes, that the worker’s job and medical history prior to the workplace accident, as well as the medical restrictions noted later by his treating physicians, support this conclusion.

The file evidence suggests that the worker’s rheumatoid arthritis was seriously affecting the worker at least as far back as 2004, one year before this claim. A July 28, 2004 letter by the worker’s treating rheumatologist notes that the worker had been off work by that point since mid-March 2004 because of his seronegative rheumatoid arthritis and osteoarthritis, and that the worker was on employment insurance and had applied for Canada Pension Plan disability benefits. The panel concludes that the worker’s rheumatic arthritis condition was quite advanced and was substantially affecting his ability to work, to the point that the worker sought to be permanently removed from his job in favour of a permanent disability pension income. Although the worker was able to return to work for several months prior to his June 2005 work injury, it is clear to the panel that the condition continued to worsen, as evidenced by the extensive physical restrictions placed on the worker by his treating physician in March 2007 and would have removed him from his mechanic’s position in any event, as of August 30, 2006.

To be clear, the panel acknowledges that the worker had a significant pre-existing condition at the time of his workplace injury which was not, however, affecting his ability to work as a diesel mechanic. The panel has found that the pre-existing condition did, however, continue to deteriorate subsequent to the accident date, to the point where it would have interfered with the worker’s ability to return to his regular job duties.

b. Could the worker have returned to his regular job duties as of August 30, 2006, as a result of his compensable injuries?

The worker provided evidence at the hearing regarding the noise levels of his pre-accident workplace environment. He noted that the work area has 15-20 diesel mechanics using impact tools, air guns, and die grinders. There are as well truck engines running in the indoor facility. The worker advisor notes that most of these tools have sound levels in excess of 90 decibels, which is beyond the 85 decibel restriction placed by the worker’s hearing specialist, and that the employer has also acknowledged by letter that the worker’s tinnitus and chronic headaches would preclude him from returning to his job as a diesel mechanic.

The panel also notes the worker’s evidence regarding the challenges he faces in controlling sound levels, even in a desk job environment. As well, some of the medications related to the tinnitus and headaches are described by a treating physician in a letter dated September 13, 2006, as having side effects that are not conducive to the use of heavy equipment and tools. These medical restrictions will also impact on the modified duties list that the worker may have been able to access on August 30, 2006.

The panel agrees with the worker advisor’s arguments, and finds that the compensable restrictions with respect to the tinnitus and chronic headache syndrome would preclude the worker from returning to his pre-accident job as a diesel mechanic as of August 30, 2006.

c. What is the wage loss entitlement where there is both a pre-existing medical condition and a compensable medical condition both contributing to the worker’s loss of earning capacity?

As noted above, the worker is not working in his pre-accident job as a diesel mechanic and has not been able to do so since August 30. Based on our findings, he has been unable to do so both because of his pre-existing condition and his compensable injury.

The worker’s evidence at the hearing is that he is again working for the employer at a desk position, and that he has been steadily increasing his hours of work, and is now trying to work seven hours per day. He indicates that it is his compensable conditions (tinnitus, headaches, and associated medications) that are impacting on his progress toward full time hours.

The panel does not have evidence regarding the worker’s current wage rate (whether it is at his pre-accident wage rate or a lower level), or hours worked. This will require further investigation by the WCB.

WCB Policy 44.10.20.10 Pre-Existing Conditions, provides that “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 Workers Compensation Board will accept responsibility for the full injurious result of the accident.”

The evidence on this file suggests that the criteria of this policy have been met, and that WCB does have responsibility for the full injurious result of the accident. This would include any wage loss associated with his compensable injury.

The panel further notes the compensable conditions continue to materially contribute to the worker’s loss of earning capacity (as described in WCB Policy 44.10.20.10), based on the worker’s evidence as to his current work status and capabilities.

We therefore find that the worker is entitled to wage loss benefits and medical aid benefits beyond August 30, 2006. The worker’s appeal is accepted.

Panel Members

A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Finkel - Commissioner

Signed at Winnipeg this 30th day of October, 2007

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