Decision #141/12 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that her ongoing difficulties were unrelated to the workplace event of February 27, 2011. A hearing was held on November 28, 2012 to consider the matter.

Issue

Whether or not the worker is entitled to benefits after February 27, 2011.

Decision

That the worker is not entitled to benefits after February 27, 2011.

Decision: Unanimous

Background

The worker filed a claim with the WCB on May 17, 2011 for injuries she sustained to her nose, head and neck when she was assaulted by a patient/resident on March 6, 2011 (the date of accident was later confirmed as being on February 27, 2011). The worker stated: A resident had grabbed my health care aide and I jumped in to intervene. The resident grabbed me and pulled me into the elevator and started to strike me and push me into the wall. He struck my head. I tried to block the second blow and he struck my nose which broke my nose. The resident suffers from a mental disability. There were no witnesses to what happened inside the elevator."

The worker reported that she initially sought medical attention on March 21, 2011 as she wasn't feeling like herself. The worker said she was diagnosed with a broken nose (cracked septum) and a concussion. The worker advised the WCB that she suffered from periodic headaches since the incident and the headaches can last up to several days. She also experienced periods of nausea, dizziness and trepidation. She had restricted range of motion with her neck and sudden movements caused her neck pain.

The employer's accident report dated May 24, 2011 indicated that the worker's supervisor was aware of the assault that occurred but there were no complaints made by the worker of an injury. The employer noted that the worker submitted a Notice of Injury dated April 12, 2011 where she first identified headaches, a sore neck and a stuffy nose. The worker did not lose any time from work related to the incident and she worked her regular shifts up to May 15, 2011. She also picked up additional shifts.

On May 24, 2011, the worker described in more detail the event that occurred on February 27, 2011. She noted that the resident grabbed her by the right arm and then dragged her into the elevator. While in the elevator she was punched on the right side of her head. She placed her right hand up by her face to block the next blow and the resident struck her again in her hand and nose. She was pushed against the wall. The worker indicated that she completed a Notice of Injury on April 12, 2011 as her neck was sore and she was having trouble breathing through her nose.

On June 9, 2011, the worker's supervisor confirmed that she was aware of the assault that took place on February 27, 2011 and that there were no reported complaints or injuries reported by the worker. About one or two months after the assault, the worker told her that she had an old injury that was aggravated by the workplace assault and that she was going to see an ear, nose and throat ["ENT"] specialist.

On June 21, 2011, the adjudicator spoke with the healthcare aide who was working with the worker on the day of the incident. The co-worker reported that the worker's nose appeared to be visibly red after the incident and that she complained of soreness in her shoulder. The worker also seemed nervous following the incident.

In July 2011, a WCB medical advisor reviewed the file information at the request of primary adjudication. The medical advisor was of the opinion that the worker incurred a minor nasal soft tissue injury during the workplace incident based on the reports from the worker's supervisor and the healthcare aide dated June 9, 2011 and June 21, 2011 respectively. The medical advisor concluded that there was no consistent medical evidence on file linking the complaints of neck pain to the workplace accident. The medical advisor also referred to the following reports on file to confirm that there was no evidence of a nasal fracture or a concussion in relation to the claim:

  • the results of a CT scan of the brain dated May 20, 2011 that was unremarkable with no reported evidence of a nasal fracture
  • the report by the ENT specialist that the worker had a previous septoplasty on September 30, 2009 and due to CPAP use (for sleep apnea), she had ongoing difficulty with nasal function. The specialist indicated that the worker "apparently has been involved in some type of accident in the past, the dates of which were not available to me…if her issues continue to be a problem, we may have to consider some more nasal surgery on her."
  • the chart note from the ENT specialist reported "left nasal obstruction, for nasal septoplasty." There was no evidence on this chart note or the June 23, 2011 report to support a diagnosis of concussion or one of nasal fracture. The June 23, 2011 report indicated that the worker's nasal problems were chronic in nature with no evidence of structural change as a result of the workplace assault.
  • the worker was able to recall the workplace accident in great detail with no evidence of cognitive difficulty noted by her supervisor and who confirmed on June 9, 2011 that she did not see the worker making lists or seeming confused subsequent to the workplace assault.
  • the psychiatrist's documentation regarding the March 27, 2011 phone call with the worker did not describe any cognitive dysfunction.
  • on June 14, 2011, the psychiatrist reported that the worker had been unable to work since May 17, 2011 due to symptoms of post concussion syndrome stemming from an assault by a resident, however, there was no objective or clear evidence of concussion related to a workplace injury and there was confusion over the date on which the incident took place. Given the above, the medical advisor said it did not appear that the worker's inability to work was related to the assault.

In a decision dated July 26, 2011, the worker was advised that the WCB acknowledged that an incident occurred at work on February 27, 2011 whereby she injured her nose; however, the WCB was not accepting responsibility for time loss or medical expenses incurred beyond that date. The adjudicator referred to the WCB medical advisor's opinion on file that there was no medical evidence that the worker suffered a nasal fracture or concussion from the assault or that she experienced cognitive dysfunction. The diagnosis accepted by the WCB was a minor nasal soft tissue injury. Based on the worker's delay in reporting her injury and the lack of medical evidence to support that she suffered a nasal fracture or concussion from the assault, there was no evidence to support a loss of earning capacity beyond the date of the workplace accident.

In September 2011, the worker provided the WCB with medical reports to support that she suffered a fractured septum and post concussion syndrome along with neck, back and arm pain stemming from the workplace assault on February 27, 2011.

On September 22, 2011, the WCB case manager advised the worker that the new information had been reviewed and there was no evidence provided to confirm that a septal fracture or concussion was sustained as a result of the workplace event. The case manager noted that the medical note on June 26, 2011 stated that the worker had a septal fracture; however, the original chart note of June 27, 2011 from the same healthcare provider reported a left nasal obstruction for nasal septoplasty, not a septal fracture. The report for treatment on August 11, 2011 indicated that her symptoms were consistent with that of post-concussive syndrome but the healthcare provider reported that her cognitive function was unremarkable and that testing performed did not reveal any abnormalities. Based on these factors, there would be no change to the decision dated July 26, 2011.

On September 29, 2011, the worker was advised by the WCB that a request was received from her treating neuropsychologist to extend funding for a neuropsychological assessment based on a diagnosis of post concussive symptoms. As her claim was not accepted for a concussion, the request for funding would be denied.

On November 9, 2011, a WCB medical advisor reviewed the CT images dated May 20, 2011. The medical advisor indicated that there was evidence of a degree of septal deviation; however no fractures of the nasal bone were apparent. He said it was not possible to determine the age of, or date of onset of the deviated septum. He said the cause of the deviated septum could not be determined from the CT images.

On November 21, 2011, it was confirmed to the worker that no changes would be made to the decisions of July 26, 2011, September 22, 2011 and September 29, 2011. The case manger noted that it was not possible to confirm that the septal deviation identified on the CT scan was a direct consequence of the February 27, 2011 workplace event. The case manager confirmed that based on the histories provided surrounding the accident, there was no evidence to confirm a diagnosis of a concussion being sustained from the accident.

In a submission dated December 15, 2011, a worker advisor requested reconsideration of the decision dated November 21, 2011 based on an operative report dated July 12, 2011 and a neuropsychological report dated November 2, 2011. The worker advisor noted that both documents supported a relationship between the worker's right sided nose injury and her post-concussion syndrome/cognitive impairments due to her workplace accident.

On January 25, 2012, the case manager advised the worker that the new information had been reviewed and it was still the WCB's opinion that the difficulties she continued to experience were not a direct consequence of the February 27, 2011 workplace accident.

The worker advisor then provided the case manager with a new medical report dated February 16, 2012 to support a relationship between the worker's nasal difficulties and the workplace accident. The following opinion was expressed by the treating ENT specialist:

"According to the medical advisor 'There is no evidence of a nasal fracture noted on July 15, 2011 operative report. Rather, the report indicates that a small area of quadrangular cartilage 'creating a right-sided septal obstruction'. This is keeping with the previous noted history of longstanding right-sided nasal obstruction'. I would disagree with this comment as the individual has had a previous septoplasty done in 2009 and there is a likelihood that some type of trauma to the nose is likely to have caused the newer onset of right-sided obstruction.

…I disagree with the finality of the statement that 'There is no evidence that the presence of the cartilage is related to the February 27, 2011 workplace accident. To conclude that a relationship exists would be speculative.' My comment to this remark would be that there is no significant septal deviation prior to this event as the patient has had previous surgery and some type of traumatic event was likely to have caused the septal deviation to the right hand side. As your medical advisor is likely aware, certainly fractures of the septum as well as significant septal deviation can occur from trauma with the bones in the nasal pyramid being altered…

…Certainly there was a significant septal deviation which was present on the July 12, 2011 intervention which certainly was not likely to have been present after the postoperative status of September 2009…

…Certainly the mechanism of injury in the physical findings prior to her operating intervention seem congruent and these are the factors on which I am basing my clinical opinion."

On March 6, 2012, the worker advisor provided the WCB with a December 13, 2011 medical report to support that there was an ongoing relationship between the worker's right sided difficulties to her right upper trapezius and right cervical paraspinal areas along with headaches localized to the right frontotemporal areas and the workplace assault. The worker advisor noted that the specialist provided objective medical findings and a diagnosis of myofascial pain which on a balance or probabilities, was "likely precipitated by soft tissue injury sustained during her assault."

In a decision dated March 26, 2012, the WCB case manager determined that the new medical reports did not warrant a change in the original decision. It remained her position that due to the delay in seeking treatment, the WCB was unable to establish a causal relationship between the workplace accident and the noted nasal difficulties. The case manager also noted the diagnosis of myofascial pain and stated that it was not related to the workplace accident given that the worker was able to continue working her regular duties for almost two months following the accident before seeking treatment for this condition. On April 13, 2012, the worker advisor appealed the decisions to Review Office.

Prior to rendering a decision on the worker advisor's appeal, Review Office obtained medical advice from a WCB ENT consultant dated July 25, 2012. In response to questions posed by Review Office, the consultant stated:

"For a punch on the nose to cause deviation of the nasal septum, in an adult, it has to be severe enough to cause immediate epistaxis (nose bleed) that needs immediate attention. Also, I would expect swelling and ecchymosis (bruising), leading to a black eye and swelling of the nose. None of these symptoms are mentioned in the file.

On the balance of probabilities, a blow to the right side of the nose would cause a deviation of the nasal septum to the left.

In comparing the two operative reports (pre and post injury) along with the report from [treating ENT specialist] of June 23, 2011, it is obvious that the deviation of the nasal septum to the right side was not successfully corrected in the surgery of 2009. The worker continued to have difficulties with her nasal breathing. She was seeing (ENT specialist] for follow up and he tried medical treatment of her nasal difficulties and he indicated that if her issues continue to be a problem he will consider doing more nasal surgery. According to [doctor's name] report of May 24, 2011, based on his examination of April 14, 2011, the worker had a pre-existing appointment with [ENT specialist].

In his reports, [ENT specialist] says the worker had concussion. He did not provide any further information to substantiate this diagnosis."

On July 26, 2012, Review Office determined that the worker was not entitled to benefits after February 27, 2011. Review Office stated in its decision that it was not able to find any continuity between the accident on February 27, 2011 and the reported symptoms as described by the worker and her treating healthcare professionals. Review Office noted that the worker continued to work for almost two months after the assault without mentioning any health-related issues to her co-workers or supervisors. Review Office noted that if the worker suffered a fractured septum, a concussion or physical ailments related to her neck, upper back and right hand, the symptoms would have become apparent immediately or shortly after the assault. Review Office concluded that the worker's current symptoms could not be medically substantiated as having any relationship to the February 27, 2011 assault. On August 3, 2012, the worker advisor appealed Review Office's decision to the Appeal Commission and a 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.

The worker has an accepted claim and is seeking benefits after February 27, 2011. 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. Section 27 of the Act provides for the payment of medical aid benefits.

Worker's Position

The worker was represented by a worker advisor who explained the worker's grounds for appeal. The worker answered questions asked by the panel.

The worker's representative submitted that the worker suffered a serious injury as a result of a violent assault by a resident of the care institution where she worked. She disagreed with the suggestion that there was a delay by the worker in reporting the incident. She noted that the worker recorded the event on the patient's chart and advised her supervisor of the assault on the night of the assault. She also noted that a co-worker confirmed the worker had a red nose immediately after the incident and again on March 12, 2011.

The worker's representative reviewed the medical information. She noted that the worker was seen by two chiropractors, an ENT specialist, pain specialist, physical medicine specialist, family physician, psychiatrist, clinical psychologist and physiotherapist. She said that the practitioners provide support regarding the worker's symptoms, diagnosis and its relationship to her employment.

The worker provided a thorough description of the assault and her actions immediately after the assault. She was able to describe in detail her actions in calling a "code white" and was able to name all co-workers who responded.

The worker described her symptoms after the incident. At the end of her shift the worker drove home, went to bed and remained in bed for 36 hours. She said she had severe pain in her neck, felt like she had the flu, was in a fog and had a sore right hand. When she returned to work the following week she was in pain and had trouble concentrating. She described her first week as lots of pain, laying down, not being coordinated, not able to piece things together and that everything fell apart.

The worker described the punches from the resident as being an "extremely strong force." She said that she was stunned when he hit her. She could not remember whether her glasses were dislodged.

Employer's Position

The employer was represented by an employer advocate. The employer's Executive Director and Occupational Disability Claims staff person also attended.

The advocate made a presentation on behalf of the employer. She advised that the employer accepts that the worker was assaulted by a patient, however, she submitted that the evidence does not support a loss of earning capacity resulted from the incident.

The advocate noted that the worker was a long time employee and had numerous WCB claims and was aware of accident reporting requirements. She identified concerns surrounding the claim including:

  • discrepancies in reporting including date of injury
  • failure by the worker to tell the employer that she was injured
  • the worker initially told WCB there were no witnesses but later provided witness information changing her story
  • the delay in seeking medical attention
  • sporadic attendance record, with many missed shifts
  • failure by the worker to complain about injury at work or to seek assistance from co-workers

The advocate noted that the worker had a long history of pre-existing problems including nasal problems, sleep apnea which can mimic the symptoms of concussion, use of a CPAP machine which can contribute to nasal obstruction and depression which can also cause symptoms similar to a concussion.

Regarding the worker's evidence that she could not function at work and was making errors, the Executive Director advised there is no information indicating that the worker was derelict in her duties.

With respect to the concussion symptoms, the advocate commented that the delay in development of symptoms was unusual, that symptoms usually develop immediately and then decrease over time.

The advocate asked that the panel give weight to the report of the WCB medical advisor. She also noted that a neurologist found the worker had no cognitive dysfunction, which might be expected in a concussion.

The advocate commented that the worker's recall of the events surrounding the incident at the hearing was not compatible with a concussion. She said that the diagnosis of post concussion syndrome seemed to be based only on the worker's reports of symptoms.

Analysis

The panel has been asked to determine whether the worker is entitled to benefits arising from her workplace accident that occurred on February 27, 2011. For the worker's appeal to be acceptable, the panel must find that the worker's injury resulted in a loss of earning capacity and required medical attention. The panel was not able to make this finding.

The panel acknowledges that the worker was assaulted at work on February 27, 2011 but is unable to find that she missed work or required medical attention as a result of the accident. In reaching this decision, the panel places significant weight on the events that occurred immediately after the injury, specifically:

  • the worker completed her full shift after she was injured
  • the worker did not complete a notice of injury and did not contact the WCB until May 17, 2011.
  • while a co-worker noticed that the worker had a red nose, the worker did not complain to co-workers about the injury on the night of the accident nor on subsequent shifts.
  • the worker did not seek medical attention until March 7, 2011. On this date she phoned her treating psychiatrist and saw him the next day. She reported the workplace incident but did not tell the psychiatrist about the injury or symptoms arising from it.

The panel found that the worker's evidence at the hearing was inconsistent with post concussion syndrome. The worker was able to recite the events following the incident in significant detail, which the panel considers to be contrary to a finding of a post concussion injury.

The panel also found the subsequent development of symptoms was inconsistent with the development of symptoms after a concussion or a significant blow. For example, the first reference to nausea was in a report from a chiropractor of an examination on March 31, 2011, one month later. The first report of visible bruising was in a report from a chiropractor for an appointment dated April 13, 2011. The first report of vertigo was in a report from her family physician for a June 13, 2011 appointment. The first report of vomiting was in an August report from a neurologist, dated August 11, 2011. Finally, the panel notes the neurologist found the worker's cognitive function to be unremarkable when examined in August 2011.

While numerous physicians have stated the worker is suffering from post concussion syndrome, the panel notes that these physicians appear to rely primarily upon the worker's reports of symptoms as the basis for their diagnosis.

The panel notes that the worker's treating ENT specialist did not provide information to substantiate the diagnosis of a concussion. As well, the panel notes that the worker had a prior history of nose problems including an earlier surgery and ongoing treatment, and that the first reference to a significant injury to the nose related to the February 27, 2011 incident is in May 2011, many weeks after the assault.

The panel is unable, on a balance of probabilities, to relate the worker's concussion symptoms and nose symptoms to the workplace injury. The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B.

A. Scramstad, Presiding Officer - Presiding Officer

Signed at Winnipeg this 27th day of December, 2012

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