Decision #60/10 - Type: Workers Compensation

Preamble

This appeal deals with a decision that was made by Review Office of the Workers Compensation Board (“WCB”) which determined that the worker’s current symptoms were unrelated to her compensable accident of December 3, 2008. The worker disagreed with the decision and an appeal was filed with the Appeal Commission through the Worker Advisor Office. A hearing was held on May 12, 2010 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits beyond April 27, 2009.

Decision

That the worker is not entitled to wage loss and medical aid benefits beyond April 27, 2009.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a work related right shoulder and arm injury that occurred on December 3, 2008 when she fell on frozen ground and landed onto her right shoulder. The worker continued to work following the accident but sought medical treatment on December 5, 2008 with complaints of tenderness in her right shoulder and limited movement. The diagnosis rendered by the attending physician was a contusion and a right rotator cuff strain.

On December 15, 2008, the worker was seen by a chiropractor for right shoulder pain and was diagnosed with a right rotator cuff tear and C6-7 and T1 subluxation dysfunction. The claim for compensation was accepted and 14 weeks of chiropractic treatment was authorized.

On February 11, 2009, the worker notified the WCB in writing that she was unable to drive to her chiropractor’s office for treatment as of February 2, 2009 due to inner ear problems.

On March 12, 2009, the treating chiropractor reported that the worker had tenderness of the right rotator cuff and decreased range of motion of the right shoulder.

The worker was assessed by a physiotherapist on April 16, 2009 with subjective complaints of neck, right shoulder pain, dizziness and nausea. The diagnosis outlined was myofascial pain in the scalene from a whiplash fall on ice.

When speaking with a WCB adjudicator on April 29, 2009, the worker reported that she was unable to work at the present time because of dizziness and that her doctor advised her to remain off work. The worker stated that her inner ear problems stemmed from a neck injury that occurred at the time of her fall in December 2008 according to her treating physician.

On April 29, 2009, the WCB case manager wrote to several treating physicians for additional information related to the worker’s inner ear difficulties.

In a progress report dated May 14, 2009, the treating physician reported that the worker was seen in an out-patient department on January 26, 2009 with dizziness and hypertension. He noted that the worker had rotational vertigo and some associated nausea, and that she had a previous similar episode one year ago. He reported that the worker was being referred to a neurologist.

In an undated report relating to a March 2, 2009 examination, the neurologist reported that the worker “became dizzy at the beginning of January 2009.” He stated:

“Presently, there are no objective neurological signs. Her history is consistent with a peripheral labyrinthine/vestibular disorder. However, presently, her history is not sufficiently clear to permit a distinction between a benign positional vertigo and a vestibular neuronitis labyrinthitis. As noted above, her history is quite vague.

Because there are no objective neurological signs along with the fact that her symptoms have improved, so that her last dizziness was about 2 weeks ago, she does not require any specific neurological studies.”

A progress report dated May 26, 2009 showed that the worker was attending physiotherapy with good effect but still had ongoing neck pain/muscle spasm and intermittent vertigo. The physician noted that x-rays showed cervical spondylosis and that the worker was scheduled for an MRI on July 7, 2009.

In a June 4, 2009 report, the treating chiropractor reported that the worker was seen on January 29, 2009 with a complaint of severe dizziness that was said to have come about one week prior. The chiropractor noted that the worker had consulted with another chiropractor one year prior for the same problem and had successfully been cared for at that time. The complaint had resolved until this last episode. Given the worker’s history and her orthopaedic findings, the chiropractor’s diagnosis was cervicogenic vertigo.

On July 29, 2009, a WCB medical advisor reviewed the file at the request of primary adjudication. The medical advisor indicated that the diagnosis related to the December 5, 2008 accident was contusion and rotator cuff strain and that the current diagnosis was cervical spondylosis which had been confirmed on cervical spine x-rays.

The medical advisor opined that there was no relationship between the worker’s reported symptoms in late January 2009 and the workplace injury of December 5, 2008. In making this finding, the medical advisor noted that the worker developed dizziness and vertigo two months post injury that was similar to a previous episode of vertigo. The consulting neurologist characterized the diagnosis as being benign positional vertigo, a condition that could not be related to the December fall. The more recent complaints of neck pain noted by the treating physician was ascribed to being secondary to a pre-existing cervical spondylosis. In his opinion, this was unrelated to the soft tissue injury of December 2008 which had likely long since resolved.

In a decision dated July 30, 2009, the worker was advised that the WCB was unable to accept responsibility for her current time loss and medical treatment as there was no evidence that it was related to her workplace injury of December 3, 2008.

On September 23, 2009, a worker advisor submitted a physiotherapy report dated August 18, 2009 to support the position that the worker’s current neck and head symptoms were indeed related to the December 3, 2008 fall. The physiotherapist stated:

“[The worker] attended this facility on August 18, 2009 complaining of a six-month HX of dizziness, nausea, abnormal auditory sensations and neck pain. She also describes her face feeling like it is inside a vice from side-to-side and this sensation radiates to the top of the head.

Impression indicated by clinical findings:

Post Concussion Syndrome secondary to craniofascial restrictions from a December 2008 work-related fall and head strike on ground which are gradually involving the neck. This area was not addressed by initial physiotherapy following the fall. Unchecked, the fascial tightening can slowly worsen; there were 3 months between the fall and the onset of cranial symptoms.” (emphasis theirs)

The physiotherapist’s report was reviewed by a WCB medical advisor on September 30, 2009 at the request of primary adjudication. He stated,

“No, there is no medical information to substantiate that the December 2008 fall was associated with a concussion. The medical reports as well as the worker’s accident report fail to provide the usual description of this entity (such as headache, direct head trauma) or other post-concussion complaints. As well there is no temporal relationship of the dizziness-type complaints and the fall occurring in December 2008; rather the complaint of vague fuzziness in the head is first reported perhaps 8 weeks post-injury. The consulting neurologist as well does not ascribe her complaints to a post-concussive phenomenon rather to a non-specific vestibular disorder which would as well not be accounted for by the workplace injury.

I cannot connect her current complaints causally to the compensable injury…”.

Based on the opinion expressed by the WCB medical advisor on September 30, 2009, the WCB case manager advised the worker on October 1, 2009, that no change would be made to the original decision of July 30, 2009. On October 6, 2009, the worker advisor appealed the WCB decision to Review Office.

In a decision dated December 3, 2009, Review Office confirmed that the worker was not entitled to wage loss benefits or medical costs beyond April 27, 2009. Review Office pointed to specific file evidence to support its position that the worker’s symptoms of dizziness and nausea as well as the diagnosis of cervical spondylosis were not related to the compensable injury. Review Office indicated that the diagnosis of post concussion syndrome was diagnosed eight months following the compensable injury and that there was no documentation to support that the worker struck her head when she fell on December 3, 2008. On December 14, 2009, the worker advisor appealed Review Office’s decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends.

Worker’s Position

The worker was assisted by a worker advisor at the hearing. It was submitted that the evidence supported a causal relationship between worker’s symptoms of dizziness and neck difficulties and the December 3, 2008 compensable injury. The worker fell on frozen ground with her full weight on her right side which resulted in a torn rotator cuff. The mechanics of the fall could also have resulted in injury to her neck. The worker’s evidence was that she was dazed from the fall and was shaken enough that she did not notice that she had dropped all her credit cards and identification. Studies on post concussion syndrome indicate that a person does not have to hit their head or lose consciousness to sustain a concussion from a fall. The worker reported the onset of dizziness and nausea approximately three weeks post injury and later headaches, sensitivity to light and ringing in her ears, all of which are symptoms of post concussion syndrome. The worker had several assessments and treatments but only began to recover when she was diagnosed with post concussion syndrome and treated for regional myofascial tightness. The August 18, 2009 report of the physiotherapist was relied upon to support the causal relationship and as an explanation for the worker’s worsening symptoms.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss and medical aid benefits beyond April 27, 2009. In order for the worker’s appeal to be successful, the panel must find that at that time, the worker continued to suffer from the effects of her work-related accident. We are not able to make that finding.

The symptoms complained of by the worker after April 27, 2009 consisted primarily of headaches, dizziness, nausea and neck pain. After considering the documentation on the WCB file and the evidence given by the worker at the hearing, the panel is not satisfied, on a balance of probabilities, that these symptoms were caused by her work-related slip and fall accident. In coming to this decision, the panel relied on the following:

  • There is a significant temporal gap between the date of accident and the first report of symptoms. The first report of dizziness to a physician was when the worker attended at the out-patient department of her local hospital on January 26, 2009 with complaints of dizziness and hypertension;
  • A letter from the worker dated February 11, 2009 indicated that she had been unable to drive since February 2, 2009, due to inner ear problems. This would suggest that the dizziness was not severe until early February, 2009;
  • The doctor’s report from the January 29, 2009 attendance noted that the worker had a previous similar episode of head pressure one year ago;
  • Similarly, a chiropractor’s report dated March 17, 2010 reported a history of the worker having received treatment from another chiropractor in early 2008 for complaints of severe dizziness. The problem had been successfully cared for at that time and the complaint had resolved until the symptoms started again in January, 2009;
  • The worker was seen by two family physicians, two chiropractors, and a neurologist. None of these practitioners provided a medical opinion that the symptoms complained of by the worker were caused by the work-related fall;
  • The only medical opinion to support a causal relationship is the physiotherapist’s report of August 18, 2009, which cites a working diagnosis of post-concussion syndrome secondary to craniofascial restrictions from a December 2008 work-related fall and head strike on the ground. The panel finds, however, that there is not enough evidence to support that the worker struck her head on the ground when she fell. At the hearing, the worker indicated that when she fell, she landed on her right shoulder and the top part of her forearm. She also had some bruising on her hand, suggesting her hand helped to break her fall. The worker thought that her head also “went right to the ground”, but admitted that there was no bruising or soreness of her head. She had a headache, but it was not severe. None of the medical reports from the period immediately following the accident reference any injury or insult to the head. When considering the evidence as a whole, the panel is not satisfied that the worker struck her head on the ground when she fell on December 3, 2008. As a result, we do not accept the physiotherapist’s opinion that the worker is suffering from a post-concussion syndrome caused by her fall;
  • The panel adopts the opinions of the WCB medical advisor dated July 29, 2009 and September 30, 2009 which conclude that there is no relationship between the worker’s reported symptoms and the workplace injury.

For the foregoing reasons, the panel is unable to relate the worker’s symptoms of dizziness, headaches, nausea and neck pain to her work-related fall and we therefore conclude that the worker is not entitled to wage loss and medical aid benefits beyond April 27, 2009. The worker’s appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 5th day of July, 2010

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