The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that he had recovered from the injuries he sustained in the fall that occurred on July 22, 2010 and that he was not entitled to further benefits beyond May 18, 2012. A hearing was held on December 3, 2012 to consider the matter.

Issue

Whether or not the worker is entitled to benefits beyond May 18, 2012.

Decision

That the worker is not entitled to benefits beyond May 18, 2012.

Decision: Unanimous

Background

On July 22, 2010, the worker filed a claim with the WCB for injuries to his hands, left wrist, head and neck when he fell 12 to 15 feet off a ladder. His claim for compensation was accepted by the WCB and benefits and services were paid while the worker underwent treatment for headaches, neck pain, tinnitus and vertigo. Initial laboratory investigations revealed a soft tissue hematoma in the left frontal region and degenerative changes in the cervical spine.

On November 9, 2010, the worker was seen at the WCB for a medical assessment. The examining WCB medical advisor noted that the worker gave no evidence of pain behavior. The worker had some degree of muscular discomfort and ligamentous injury to the neck area. The shoulder examination was normal and the worker had some degree of myofascial pain syndrome in the neck and upper shoulder girdle area which was of no great concern. Passive range of movement of the neck was satisfactory. The worker's cranial nerves were intact and there was no evidence of nystagmus. The worker had a mildly positive Rombergism. With respect to treatment, the medical advisor recommended a referral to a neuropsychologist for the worker's memory loss along with neck and shoulder girdle exercises.

In January 2011, the neuropsychologist reported that the worker had two impairments. One type was verbal memory and the second was visual concentration. By February 20, 2011, the worker's visual concentration impairment had resolved and his verbal memory issue had resolved by May 2011. File records showed that the worker was also treated for clinical depression and ongoing complaints of dizziness.

In a report dated July 14, 2011, an ear, nose and throat (ENT) specialist reported that the worker had post-traumatic vestibulopathy in light of his post-concussive syndrome.

The worker was seen by a WCB medical consultant on September 6, 2011. The consultant reported that the current diagnosis was post-concussive syndrome with post-traumatic vestibulopathy. Restrictions for a three month period were outlined to avoid ladder climbing, heavy lifting more than 20 pounds and no working at heights. The consultant noted that the ENT specialist recommended that the worker continue vestibular exercises for rehabilitation and increasing his medications for headache and symptom control. The consultant noted that returning to work at heights installing windows was guarded.

In a memo to file dated November 1, 2011, the WCB's psychiatric consultant outlined the following opinions: "There is no indication that [the worker's] symptoms of depression are significantly worse at this current time than they have been at anytime in the past" and "It is my opinion that factors related to the CI [compensable injury] of July 2010 are not the primary factors related to [the worker's] psychiatric diagnosis at this time."

On October 21, 24, 26, 2011 and November 17, 18, 2011, surveillance video was taken of the worker's activities.

On December 2, 2011, the worker's file was referred to the WCB's healthcare branch by the WCB case manager for an opinion with respect to the worker's current status. The case manager noted that the worker was participating in modified duties; however, he was unable to increase his hours of work as he was still experiencing dizziness and needed to nap in the afternoon. The medical advisor was asked to review the medical reports on file which included chart notes from the family physician, reports from a psychiatrist and the surveillance information. On January 9, 2012, the medical advisor indicated that there were very few medical findings documented in the recent medical reports and he requested a call-in examination by a WCB physical medicine and rehabilitation consultant. On February 16, 2012, the worker was seen by the WCB physical medicine and rehabilitation consultant for an assessment.

In a memo to file dated April 13, 2012, the physical medicine and rehabilitation specialist stated that he was not sure that there was a current pathoanatomic diagnosis present which was producing any functional impairment. There were ongoing subjective complaints but no objective confirmation of any of them. He stated that observation of routine light activity on the surveillance video does not suggest any functional issue as being present. He noted that the worker's subjective complaints of dizziness suggest a possible safety issue that may require restrictions for example; however, there were no objective findings to support a pathoanatomic cause for this. There was no apparent physical rationale for the placement of any restrictions. It was the consultant's opinion that the worker had recovered from his physical injuries.

On May 14, 2012, the WCB case manager advised the worker that based on a review of all relevant information, it was determined that he had functionally recovered and was capable of returning to his pre-injury duties with no workplace restrictions. Therefore, wage loss benefits and medical treatment would not be accepted beyond May 18, 2012. On July 11, 2012, the worker appealed the decision to Review Office.

On August 3, 2012, Review Office confirmed that the worker was not entitled to benefits beyond May 18, 2012. Review Office based its decision on the following factors;

• the worker's depressive symptoms dated back to 2006 (first medical obtained in the pre-existing history) where it was noted the worker was being treated with an anti-depressant.
• the opinion expressed by the WCB psychiatry consultant dated November 21, 2011 that the factors related to the compensable injury of July 2010 were not the primary factors related to the worker's psychiatric diagnosis at this time and that there was no indication that the worker's symptoms of depression were significantly worse at this current time than they had been at anytime in the past.
• the worker had a pre-existing history of fainting.
• the worker's actions on the surveillance videotape suggested that he had no problems with balance or dizziness.
• the comments made by the WCB's physical medicine and rehabilitation consultant where he stated on April 13, 2012 that "On a physical basis recovery from the physical injuries appears to have occurred."
• the psychiatrist's report of May 16, 2012 which outlined the diagnosis of "Adjustment disorder with anxiety and depressed mood-resolved and major depressive disorder in full remission vs. inaccurate initial diagnosis."

On September 5, 2012, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Following the hearing on December 3, 2012, the appeal panel met to discuss the case and requested additional medical information from two of the worker's treating physicians. The requested medical information was later received and then forwarded to the worker for comment.

On March 19, 2013 the panel met again to discuss the case and requested that the worker be seen by a third party medical examiner specializing in neurology. The report from the third party neurologist dated June 11, 2013 was later received and forwarded to the worker for comment. On June 25, 2013, the panel met further to discuss the case and rendered its final decision.

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 beyond May 18, 2012. 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. Subsection 27(1) of the Act provides for the payment of medical aid benefits.

Worker's position

The worker was assisted by a friend in making his presentation at the hearing. The worker described his work history as a glazier as well as his family environment throughout that period of time. He then went on to describe the mechanism of injury on July 20, 2010. He indicated that his original description of a 12-15 foot fall from a ladder was incorrect, and that it was actually a 28-30 foot fall, in hindsight. He indicated that he awoke 4-5 feet away from the ladder. He then described his subsequent treatments since the time of the accident. His ongoing symptoms have related to concussion, headaches, and stress. He has had some treatment aimed at balance issues that he has had.

As to his current status, the worker advised that he has considerable difficulties with headaches that come from stressful situations. He has difficulties with concentration and focus, with his thinking going "left, right, and centre." He attributes these difficulties to his concussion. He described in some detail the challenges he faced in 2012 in trying to do some basement renovations for his wife, and the extended periods of time it took to complete those renovations because of his difficulty in focusing. In response to questions from the panel, the worker acknowledged that he does have depression as well, which was also present prior to his workplace injury. His difficulties in completing the renovations were more mental/psychological than physical.

The worker stated that he declined to participate in a light duty job because he gets headaches with any stressful situation. He can't use ladders and is restricted to lifting no more than 20 lb. He advised that pushing a broom would lead to headaches, and that when he was later transferred to an outdoor site, he originally declined to do so because he could not wear a hard hat. He did eventually go to the site, with a hard hat modified with a toque, but later could not attend the site. On questioning from the panel, the worker was unable to point to medical support for a restriction against him wearing a hard hat. The worker's position is that he cannot return to his pre-accident occupation as a glazier because he cannot use a ladder, he has lifting restrictions, and he also has post-concussion syndrome causing headaches and dizziness.

The worker was questioned extensively by the panel regarding the medical findings reported by his treating healthcare providers and WCB healthcare consultants, and how they correlated to the worker's evidence at the hearing.

Employer Position:

The employer did not participate in the appeal.

Analysis:

The panel has been asked to determine whether the worker is entitled to benefits after May 18, 2012. For the worker's appeal to be successful, the panel must find that the worker's injury continued to affect his ability to work at his pre-accident wage level (loss of earning capacity) and that his compensable condition still required medical attention after this date. On a balance of probabilities, the panel was not able to make these findings.

At the outset, the panel notes that the worker did suffer a significant head injury on July 22, 2010, and had been diagnosed with a concussion at that time. As will be discussed in greater detail, the evidence on the file suggests that the worker's condition changed/improved over time. This medical evidence stands in marked contrast to the worker's evidence at the hearing, where:

· He has restated the original height of the fall as more than double the original reported injury (12-15' to 28-30'), and now states that he lost consciousness at that time;

· He acknowledges that he is currently suffering from depression, memory, concentration and focus issues.

· He demonstrated poor memory at the hearing in terms of treatment dates, and the severity of his various conditions at different points in time. The panel also notes that many of the worker's current complaints, such as headaches or stress, are subjective and difficult to verify objectively.

For these reasons, where there are discrepancies between the worker's evidence at the hearing and the file record (medical reports, etc.), the panel has determined that we will generally place greater weight on the contemporaneous evidence on file, in our considerations.

As to the issue before us, the panel notes that the worker's benefits were discontinued on May 18, 2012. To determine whether the worker is entitled to ongoing wage loss and medical aid benefits, the panel has carefully considered the various diagnoses first identified subsequent to the worker's July 2010 injury and has then tracked those diagnoses in the years following, to see whether they were still in play at the time the worker's benefits ended, and whether there are compensable restrictions that would preclude the worker from working in his pre-accident occupation. In the panel's view, after careful consideration of all the evidence on the file and from the hearing, the worker had recovered from his workplace injuries by May 18, 2012, based on the following considerations:

· The worker's original diagnoses were concussion, vestibular problems, constant headaches, frequent dizziness and nausea, and a severe cervical spine sprain. He also dislocated two fingers on his hand and had bilateral paraesthesia into his arms. These findings were reported by a treating physiotherapist on August 9, 2010. The worker's attending physician also reported vertigo with movements. The worker then underwent physiotherapy.

· On September 7, 2010, the worker saw an ENT specialist who noted that she could not demonstrate benign positional vertigo during her examination. Similarly, a WCB case manager documented a phone call with the physiotherapist on September 28, 2010 who indicated that the worker was progressing very well and that the dizziness and nausea had settled down.

· A WCB medical advisor examined the worker on November 9, 2010.The worker provided subjective complaints of neck stiffness, radiating pain, dizziness, and considerable loss of strength in his right and left arms and hands. After testing, the medical advisor noted some degree of muscle discomfort and ligamentous injury to the neck area and some degree of myofascial pain syndrome in the neck and upper back. This was not of great concern however. The shoulder examination was normal, as was the strength of both arms. The worker had full passive range of motion in the neck. There was also no evidence of nystagmus, but some difficulty in some of the other tests which led the medical advisor to refer the worker to a neuropsychologist for further testing.

· In a report dated January 6, 2011, the neuropsychologist notes that there was no documented loss of consciousness at the time of the fall, and the worker confirmed during the interview that he had not lost consciousness. This evidence is different than that provided by the worker at the hearing, and the panel places greater weight on the earlier report, as it is much closer to the date of the injury. The neuropsychologist tested specifically for concentration and memory issues that the worker had complained of. The panel notes that the test results were generally very good, leading the specialist to state that there were no specific cognitive restrictions that he would suggest, and that the worker's difficulties would not be serious enough to warrant occupational restrictions. On a second examination on February 10, 2011, the specialist noted that the worker was improving cognitively, but was deteriorating emotionally. This parallels information received from the worker's attending physician on February 9, 2011 that the worker was slightly depressed, with associated decreased concentration/memory. Based on these medical findings, the panel finds that the worker's ongoing complaints of concentration, focus and memory issues are not related to his head injury suffered in July 2010.

· By January 31, 2011, the worker commented that he could return to work, but could not work on ladders because of dizziness. By February 9, 2011, the worker's attending physician was noting slightly depressed mood, and decreased concentration/memory.

· Regarding the worker's reported vertigo, the panel notes that the worker was seen by a physiotherapist specializing in vertigo, on March 2, 2011. Despite subjective complaints of dizziness, vertigo and headaches, she notes "no vertigo seen" with a diagnosis of a "possible BPPV." She later noted an excellent response to treatment, on March 30, 2011, indicating that the worker no longer felt dizzy. The worker then saw a physiatrist three times, from April to July 2011. On the May 27, 2011 visit, the physiatrist recorded that the worker's vertigo and dizziness had resolved. On his last examination of July 29, 2011, one year after the accident, the physiatrist's report is silent as to any complaints of vertigo, dizziness, and headaches. The panel again notes that there is a lengthy period of time in mid-2011 where there is resolution of dizziness, vertigo and headaches following focused treatment for same. This is in contrast to the worker's evidence at the hearing. The panel finds that any work-related cause for the worker's dizziness, vertigo and headaches had resolved in 2011, based on the medical information on file.

· Regarding other physical consequences from the work injury, the panel notes that the worker's visits with the physiatrist from April to July 2011 did focus on an assessment of persistent neck and upper back pain from a fall from a ladder (now 25', with the worker reporting he was unsure if he had lost consciousness). Early findings noted spasms and trigger points of paracervical muscles, and no neurological deficit. The specialist also noted disc degeneration of multiple cervical discs, including prominent posterior osteophytes and degenerative narrowing of the exit foramen at three levels. At the second visit in May 27, 2011, the worker received paraspinous blocks and trigger point injections which the worker advised at his visit on July 29, 2011, had resolved his right sided neck and scapular pain. On the third visit, the worker received left sided injections, and had no treatments thereafter. Throughout this period, the worker was also doing a home-based exercise program for cervical and scapular stabilization. In the panel's view, the medical information on file does not support compensable functional (physical) restrictions that would preclude the worker from working as a glazier. The worker's self-described limitations from returning as a glazier are related by him to the head injury -- concentration, vertigo, dizziness, headaches, stress -- and not to his ability to work physically. In this regard, the WCB medical advisor's examination dated November 9, 2010 noted normal strength in both arms and hands, a normal shoulder examination, and myofascial pain issues that he felt were not a great concern. The panel notes that this latter condition was identified and treated by a physiatrist in mid-2011, and that recovery from that condition was established at that time, given the lack of subsequent treatment or complaint after that date.

· Subsequent to the hearing, the panel sought a narrative report from the worker's attending physician who stated that in her opinion it was most likely that the worker still suffers from a post-concussion syndrome, and describes his consistent reporting of vertigo/poor balance, headaches, fatigue, memory problems, irritability and difficulty dealing with stress, and insomnia. She also notes that "all these symptoms are actually worse when he feels under stress." The panel also received a January 10, 2013 report from a sports medicine specialist who had seen the worker in November 2012. He offered the opinion that the worker was suffering from post-concussion syndrome with fatigue, insomnia, personality changes, irritability, decreased concentration and memory, as well as post-concussion headache, cervical pain secondary to soft tissue injury, vertigo, decreased proprioception and reactional depression. The sports medicine specialist made a referral to a neurologist who provided a report dated March 5, 2013. By this point, the worker reported falling 30', he was unconscious briefly, and it had taken him 18 months to remember the accident. The specialist noted a normal neurological examination and good strength overall, with a single finding that "the gait was unsteady with a positive Romberg's test." His impression was that the worker's symptoms of dizziness are consistent with a peripheral vestibular disorder, such as labyrinthine concussion related to the fall. He also agreed with a neurologist (March 2011) that "[the worker's] headaches and bilateral neck pain was most likely musculoskeletal in nature, likely myofascial pain. His symptoms of memory loss and personality change is consistent with post-concussive syndrome, as per [the neuropsychologist's] reports."

· The panel assessed these reports and noted some significant variances from the other medical evidence on the file. It led to the decision to arrange for an independent medical examination by a neurologist. The points of concern related to the following:

o The three medical reports (by the attending physician, sports medicine specialist, and neurologist) of consistent and unwavering complaints of dizziness, headaches, memory loss do not accord with the findings of various healthcare practitioners, as referenced earlier in this analysis.

o The symptoms described to the attending physician are subjective in nature, and there had been testing (and treatment) for same by various specialists over the course of this claim.

o The recent neurologist report states that the diagnosis of post-concussion syndrome was established by the worker's treating neuropsychiatrist, but this is not consistent with the panel's reading of those earlier reports. The diagnosis of post-concussion syndrome is also a new diagnosis on the file, suggested by both the neurologist and the worker's attending physician.

· The independent medical examination was held on June 11, 2013.The worker described his primary barrier to returning to regular duties as being "fairly regular and daily headaches." He also referenced complaints of tinnitus and vertigo which he indicated had improved since the head injury, is still quite bothersome, and has learned to cope with both. The neurologist performed tests and indicated that he could not identify an objective finding to support post-concussion vestibulopathy. The neurologist did state that an ENT specialist could offer more insight. In this regard, the panel notes that the findings of the independent medical examiner are consistent with the earlier findings of the ENT specialist who examined the worker in September 2010 as well as the excellent treatment outcomes reported by the vestibular physiotherapy specialist in early 2011, and the absence of reported symptoms in the many months following.

· The panel takes particular note of the findings and opinion of a WCB physiatrist, who examined the worker on February 16, 2012, and performed a full musculoskeletal exam, including examination for post-concussive symptoms. In his memo of April 13, 2012, he offered the opinion that "I am not sure if there is a current pathoanatomic diagnosis present, not in any case which is producing any functional impairment….The subjective complaints of dizziness suggest a possible safety issue that may require restrictions for example. However there are no objective findings to support a pathoanatomic cause for this, and with the testing and casual observations not suggesting functional impairment related to dizziness. Therefore there is no apparent physical rationale for the placement of any restrictions. The treating psychiatrist would need to be canvassed as to whether he felt there was a need for any restrictions related to the depression present. On a physical basis recovery from the physical injuries appears to have occurred."

· The findings of the WCB physiatrist of no functional impairments are consistent with the lack of functional impairment demonstrated by the worker in the surveillance videos taken in October and November 2011.

In the panel's view, the report of the independent medical examiner ultimately corroborates he findings of the WCB physiatry examination in February 2012, and after full consideration of the evidence, the panel agrees with and adopts the opinions stated by the WCB physiatrist on April 13, 2012. The panel finds, on a balance of probabilities, that the worker had recovered from the effects of his work injury as of May 18, 2012, and that there is no entitlement to benefits beyond that date.

The worker's appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 2nd day of August, 2013