The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker and the employer are appealing decisions made by the Workers Compensation Board ("WCB") with respect to issues dealing with entitlement to wage loss/medical aid benefits as well as physiotherapy coverage. A hearing was held on August 8, 2013 to consider these matters.

Issue

Employer Issue: Whether or not the worker is entitled to further wage loss and medical aid benefits after March 10, 2013.

Worker Issue: Whether or not the worker is entitled to further physiotherapy treatment.

Decision

Employer Issue: That the worker is entitled to further wage loss and medical aid benefits after March 10, 2013.

Worker Issue: That the worker is entitled to further physiotherapy treatment.

Decision: Unanimous

Background

The worker filed a claim with the WCB on October 22, 2012 for an injury to her neck that occurred during a training exercise on October 18, 2012. The worker advised the WCB's call centre that:

…I was hit in the left side of my head while wearing my helmet. I may have been hit by more than one other…It happened so fast. We finished the drill. I felt a bit disoriented but it wasn't until about an hour later when I started to fell (sic) light headed and have a headache and the back of my neck felt inflamed. This was the last training task for the day so I finished the day at work. I felt like I was going to throw up later in the evening about 5:00 pm.

In a second accident report by the worker dated October 24, 2012 she stated:

On October 18, 2012…I was hit in the left side of the head causing pain in the neck and upper back region.

When speaking with a WCB adjudicator on October 30, 2012, the worker said she had pain on the right side of her neck which extended from the base of her head and neck all the way down to the bottom of her shoulder. She had pain on both sides of her neck and back and had headaches. The right side was worse than the left. When she was struck on the left side, her head was turned all the way to the right.

A Doctor's First Report dated October 22, 2012 showed that the worker complained of neck pain that went into her shoulders and she also had back pain. The diagnosis was a neck strain and massage and physiotherapy was prescribed.

A physiotherapy report dated October 30, 2012 indicated that the worker had a lumbosacral strain and C7 radiculopathy. The report stated that the worker was to commence light duty work on November 12, 2012. On October 31, 2012, the WCB accepted responsibility for physiotherapy treatments up to 14 visits.

On November 13, 2012, the worker commenced a graduated return to work starting at 2 hours per day.

On November 15, 2012, the treating physiotherapist changed the worker's diagnosis to a cervical spine strain and post concussion syndrome.

On November 29, 2012, the worker was seen by a WCB physiotherapy consultant at a call-in examination and the following opinions were outlined:

• the initial diagnosis of October 18, 2012, was nonspecific, non-radicular neck pain and a concussion.
• the diagnosis of post concussion syndrome was supported by the worker's described change in effect, difficulty concentrating, the feeling of not being herself and difficulty of processing information. After three hours of work, the worker had difficulty concentrating and would lay down when she went home. Physical exertion increased her headaches.
• the current workplace restrictions were appropriate.
• the file should be reviewed once the CT scan and updated medical information is available.

By letter dated December 21, 2012, the treating physiotherapist was advised that the WCB was authorizing an additional eight weeks of treatment for the worker regarding an active exercise based program with review and progression of a home routine.

A CT brain (uninfused) dated January 3, 2013 identified no intracranial abnormalities.

On January 10, 2013, the treating physiotherapist advised the WCB that the worker required additional physiotherapy treatment as she had not regained full function. The diagnosis continued to be a cervical spine strain and post concussion. On January 17, 2013, the WCB advised the physiotherapist that approval for further treatment was denied at this time pending review of imaging results and/or clarification of the medical management plan.

On January 26, 2013, the worker appealed the decision of January 17, 2013 to Review Office. The worker felt that physiotherapy was providing her with positive results as she was able to increase her hours at work and she had more mobility in her neck. Without further physiotherapy treatments, she feared that her progress would cease to exist. The worker noted that the nature of her employment required her to have full mental and physical capabilities. In support of her appeal, the worker submitted reports from her treating physician and physiotherapist for consideration.

In a progress report from the treating physician dated February 19, 2013, it was indicated that the worker continued to have neck pain and headaches, and symptoms of fogginess and confusion. Objective findings were "limited rotation of neck to right side, left is improving, flexion and extension of neck is better."

A WCB medical advisor reviewed the file on February 27, 2013 and the following opinions were outlined:

• based on the mechanism of injury and the initial clinical reporting, the probable initial diagnosis was a neck strain. The natural history for functional improvement was one to six weeks.
• the following file information supported that the worker did not sustain a concussion as a result of the October 18, 2012 workplace injury:
• October 18, 2012 worker's accident report noted an injury causing neck and upper back pain. There was no mention of neurocognitive symptoms.
• October 22, 2012 employer's accident report noted a neck injury related to the October 18, 2012 event.
• The initial physician's assessment of October 22, 2012 reported subjective findings of neck pain radiating into the shoulders and back. The objective findings pertained to the neck only and there was no report of neurocognitive symptoms.
• October 25, 2012 physician's progress report noted subjective reporting of neck pain/headaches with no mention of neurocognitive symptoms.

On March 4, 2013, it was determined by the WCB case manager that the worker's ongoing symptoms, any physical restrictions and treatment were not related to the compensable injury of October 18, 2012. The decision was based on the following factors:

• between October 18 and October 29, 2012 there was no mention of any neurological symptoms noted in the medical reports, the conversations with the WCB or the reporting of the incident to the employer;
• the first note of a neurological symptom was 12 days after the incident and the symptoms over the next four months continued to increase in severity; and
• the opinion outlined by the WCB medical advisor on February 27, 2013 that the compensable diagnosis based on the mechanism of injury was a neck strain and that the worker's concussion was not work-related.

The worker was seen by a neurologist on March 12, 2013. The neurologist stated that the neurological examination was normal except for tenderness in the right occipital muscles and cervical paraspinalis as well as the deeper longitudinal muscles in the neck. It was felt that the worker likely had a local myofascial pain syndrome and possible greater occipital neuralgia. Recommendations were made for the worker to continue the graduated return to work program as well as physiotherapy treatments.

On March 22, 2013, the Worker Advisor Office appealed the case manager's decision to Review Office. The worker advisor referred to file information to support that the worker's concussion was causally related to the October 18, 2012 workplace accident and that the worker had not recovered from the effects of her concussion by March 10, 2012. The worker advisor also referred to file evidence to support that the worker was entitled to further physiotherapy treatment.

On April 4, 2013, Review Office determined that the worker was entitled to further wage loss and medical aid benefits after March 10, 2013. Review Office indicated that it considered the reports from the treating physician, the opinion expressed by the WCB medical advisor and the findings of the WCB physiotherapy consultant. It also did its own research on the criteria used to diagnose concussions or post concussion syndrome. Based on this review, Review Office concluded that the worker did suffer from post concussion syndrome related to the October 18, 2012 incident and that the worker was entitled to further wage loss and medical aid benefits.

Review Office also determined that the worker was not entitled to further physiotherapy treatments. Review Office noted that between December 2012 and January, 2013, the worker experienced no objective or measureable change in functioning or any change in her subjective complaints of symptoms based on progress reports from the attending physiotherapist. It found that the worker's neck strain had materially resolved and that physiotherapy treatments were not helping with the concussion-related symptoms which the worker was experiencing to date.

On April 11, 2013, the employer appealed Review Office's decision that the worker was entitled to wage loss and medical aid benefits beyond March 10, 2013. On April 22, 2013, the worker advisor appealed the decision that the worker was not entitled to further physiotherapy treatments. A hearing was held at the Appeal Commission on August 8, 2013 to consider both appeals.

In the interim, a follow-up report was received from a physical medicine specialist dated May 6, 2013. The specialist's impression of the worker's condition were signs and symptoms characteristic of improving myofascial pain. There was no evidence of radiculopathy. Treatment recommendations were to continue with daily neck and shoulder blade stretching and regular core stabilization exercise. Also recommended was massage therapy to address the myofascial pain.

On July 2, 2013, a WCB physical medicine and rehabilitation specialist reviewed the file and stated in part:

…there is no file support for a concussion to have occurred, and no support for any traumatic brain injury. This opinion would be consistent with the opinion provided by the neurologist who examined the claimant post injury, and determined that there were no neurological findings and no evidence for any neurologic injury or condition present as related to the work incident of October 18, 2012. Also considering the lack of any findings on the medical investigations that have been performed to date including brain scan performed.

1. The workers current presentation is not medically accounted for in relation to the workplace injury of October 18, 2012, now at the point 9 months post injury.

2. This opinion is supported by the lack of any related medical findings based on the review of the available documentation.

On July 31, 2013, the worker advisor submitted to the Appeal Commission the following reports for consideration:

• an article on Post-Concussion Syndrome from the Mayo Clinic;
• email correspondence between the worker and her treating physiotherapist dated June 18-20, 2013; and
• a physiotherapy narrative report dated June 18, 2013.

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(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

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 resulting from the accident ends.

Provision of medical aid to injured workers is payable in accordance with subsection 27(1) of the Act which provides as follows:

Provision of medical aid

27(1) The board may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident.

The Worker’s Position

The worker was assisted by a worker advisor at the hearing. It was submitted that the worker was entitled to wage loss and medical aid benefits beyond March 10, 2013 because she had still not recovered sufficiently from the effects of her compensable head and neck injuries to be able to perform her full time work duties and she continued to require medical treatment related to both the injuries. The worker agreed with the WCB's determination that her compensable injury resulting from the October 18, 2012 workplace accident was not solely limited to a neck strain but also resulted in a concussion which was described as "post concussion syndrome." It was noted that the file documented an almost immediate onset of symptoms consistent with that of a concussion and additional symptoms were described within approximately two weeks after the worker began her gradual return to work on November 13, 2012. The treating physiotherapist formally diagnosed post concussion syndrome two days following the worker's first two hour shift. Although the WCB medical advisor provided an opinion that the worker did not sustain a concussion as a result of the workplace accident, it was submitted that little weight should be attached to this opinion as the medical advisor did not acknowledge the report of almost immediate symptoms later on the day of the accident and made no comment on the potential impact of returning to work in a highly stimulating environment. Post concussion syndrome was a complex medical condition and it symptoms and recovery periods often varied between individual persons. The preponderance of evidence and the complexity of post concussion syndrome supported the worker's entitlement to wage loss and medical aid benefits beyond March 10, 2013.

With respect to physiotherapy, it was the worker's position that she was entitled to further physiotherapy treatment because she had not fully recovered from the effects of her compensable neck and head injury by March 10, 2013. Further treatment was recommended by several of the worker's treatment providers beyond the date that WCB stopped paying on January 17, 2013. It was noted that the physiotherapist's January 24, 2013 report documented both objective and subjective improvement but not total resolution of the worker's head or neck injuries. After the WCB discontinued coverage, the worker was unable to afford attending for further physiotherapy until May 2013 when her alternate coverage commenced. Since resuming treatment, the worker had experienced some improvement in her condition and had been able to increase her work hours from six to seven hour shifts. A more recent report from the physiotherapist recommended a combination of strengthening exercises specifically under supervision to prevent over exertion which might aggravate the post concussion syndrome as well as manual therapy including acupuncture and soft tissue massage. As the worker now had two accepted compensable diagnoses, further entitlement to physiotherapy using a combined approach should be considered.

The Employer’s Position

A representative from the employer appeared at the hearing. The employer's reason for appeal set out in the Appeal of Claims Decision form stated:

I believe the Review Officer did not fully consider the WCB Medical Advisor's opinion related to the diagnosis of a concussion, but sought information from the internet to conclude that her symptoms did in fact meet the diagnostic criteria of a concussion. It seems more reasonable to have had the claim re-reviewed by a medical practitioner for guidance rather than reference the internet.

At the hearing, the employer noted that there were two more recent specialist reports on file which supported a previously unconsidered diagnosis of myofascial pain and greater occipital neuralgia. It was submitted that in order to decide whether the worker was entitled to any further treatment or extension of benefits, a determination had to be made as to whether these new diagnoses applied to the worker and were compensable. To date, the only compensable diagnosis accepted by the WCB with respect to the neck was a strain and it had been determined that the neck strain had resolved.

Analysis

There are two issues before the panel. We will address each issue separately.

1. Entitlement to further wage loss and medical aid benefits after March 10, 2013.

The first issue before the panel is whether or not the worker is entitled to further wage loss and medical aid benefits after March 10, 2013. In order for the employer's appeal to be successful, the panel must find that by that date, the worker no longer suffered from the effects of the injuries she sustained in the October 18, 2012 workplace accident. We are not able to make that finding.

The employer's Appeal of Claims Decision form questioned acceptance of the concussion diagnosis of post concussion syndrome as compensable and noted that the WCB Medical Advisor's opinion was that the worker's symptoms did not meet the diagnostic criteria of a concussion. The panel agrees with the employer's submission in this regard and we find on a balance of probabilities that the evidence does not support benefit entitlement beyond March 10, 2013 related to a diagnosis of post-concussion syndrome.

The medical opinions on file weigh against the finding of a post-concussion syndrome diagnosis. The February 27, 2013 opinion of the WCB medical advisor specifically considered the diagnostic criteria for a concussion and concluded that a diagnosis of post-concussion syndrome in relation to the workplace injury was improbable.

In March, 2013, the worker was assessed by a neurologist who found that the worker's neurologic examination was normal, except for tenderness in the head and neck. He opined that the worker likely had a local myofascial pain syndrome and possible greater occipital neuralgia, but made no reference to a concussion diagnosis. The neurologist specifically noted that he felt there was no evidence of any serious complication and that the brain CT scan was reported as normal.

In July 2013, the file was reviewed by a WCB physical medicine consultant. In his July 2, 2013 memo, the consultant concluded that there was no file support for a concussion to have occurred, and no support for any traumatic brain injury. It is notable that the worker was also treated by a physical medicine specialist in May 2013 and her report made no reference to a concussion diagnosis. The specialist's impression was that the worker demonstrated signs and symptoms characteristic of improving myofascial pain.

When reviewing the treating physician's reports, the panel notes that the treating physician never specifically identified the diagnosis of a concussion or post-concussion syndrome. She did refer the worker for further investigation by a neurologist and physiatrist, but never indicated a change from her original diagnosis of a neck strain.

The medical treatment providers who gave opinions in support of the diagnosis of post-concussion syndrome were the treating physiotherapist and the WCB physiotherapy consultant who conducted a call-in examination on November 29, 2012. When concluding that there was a diagnosis of post concussion syndrome, the WCB physiotherapy consultant referred to the worker's report of feeling dazed and "out of it" on the day of the accident, and nauseous afterward. He also cited the worker's described change in effect, difficulty concentrating, feeling of not being herself and difficulty processing information.

Although the worker's evidence at the hearing was that she experienced concussion symptoms from the outset, the panel has concerns with the fact that the reported findings in the early medical reports from the treating physician and the physiotherapist did not reflect the typical array of symptoms associated with a concussion. The physiotherapist's initial report did cite "initial dizziness" but did not identify this as an ongoing issue. The only concussion-type symptoms which were reported were headache and fatigue, which are common conditions that are not unique to a concussion. It is notable that the first reference to difficulty concentrating and being disconnected did not appear until mid November, almost one month after the accident. The sensitivity to light was not reported as a complaint until November 28, 2012. We have considered the worker advisor's comments regarding the concurrence of the return to the workplace with the report of symptoms but we do not feel that this sufficiently explains the lack of earlier reporting.

Overall, when considering the evidence as a whole, the panel is not satisfied on a balance of probabilities that post concussion syndrome is a compensable diagnosis resulting from the workplace accident of October 18, 2012. While we acknowledge the worker advisor's submission that post-concussion syndrome is a complex medical condition which varies from person to person, we simply cannot ignore the medical opinions of three specialists, none of whom find that there is a post concussion syndrome.

Our consideration of the worker's entitlement, however, does not end here. As was acknowledged by the employer representative at the hearing, more recent evidence on the WCB file suggests that the worker is suffering from a myofascial pain condition in her neck which is directly related to the workplace accident of October 18, 2012. As cited earlier, the neurologist's March 13, 2013 report opined that the worker likely had a local myofascial pain syndrome and possible greater occipital neuralgia. His recommendation was to continue a graduated return to work and ongoing physiotherapy. The treating physical medicine specialist also opined in her May 6, 2013 report that the worker demonstrated signs and symptoms characteristic of improving myofascial pain and that she should continue with stretching and stabilization exercises and would benefit from massage therapy. Trigger point needling could also be considered.

The panel notes that all of the medical reports on file have consistently referred to findings of ongoing neck pain. The panel accepts on a balance of probabilities that the worker's neck injury, originally diagnosed as a neck strain and more recently identified as a myofascial pain syndrome, is a continuation of the compensable injury the worker suffered in the workplace accident of October 18, 2012. We accept that the worker's symptoms of neck pain causing headaches, shoulder pain, loss of strength in her right arm, and scapular tightness are all related to the compensable injury. As a result of these symptoms, the worker has not yet been able to make a full return to her regular duties, and the panel finds that the worker is entitled to partial wage loss benefits to compensate her for this loss of earning capacity.

The worker is also entitled to medical aid required to treat this condition. The panel refers the matter back to the WCB to further investigate the appropriate treatment for the worker's improving myofascial pain condition and to develop a structured graduated return to work plan which accommodates her ongoing compensable neck symptoms.

As the panel finds that the worker's compensable neck injury continues to cause her to suffer a loss of earning capacity and require medical aid, it therefore follows that she is entitled to further wage loss and medical aid benefits after March 10, 2013. The employer's appeal is therefore dismissed.

2. Whether or not the worker is entitled to further physiotherapy treatments.

Given our findings on the first issue, it follows that the worker is entitled to coverage for further physiotherapy treatments. We find that the worker is entitled to be reimbursed for the costs to date of the physiotherapy treatments which she has undergone to treat her neck since the WCB discontinued coverage on January 17, 2013. Entitlement to future coverage will be left to the WCB to adjudicate based on their further investigations as to the appropriate treatment for the worker's ongoing compensable neck injury.

The worker's appeal is allowed.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 11th day of September, 2013