The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she had recovered from the effects of her compensable injury and was not entitled to benefits beyond November 14, 2012. A hearing was held on July 11, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to benefits after November 14, 2012.

Decision

That the worker is entitled to benefits after November 14, 2012.

Decision: Unanimous

Background

On January 7, 2011 the worker was in the course of her employment as a bartender/server when she fell down a flight of stairs at work and struck her head. The worker attended several hospital facilities for her head injury and was treated for scalp lacerations, nausea and dizziness. A CT scan of the brain was performed on January 30, 2011. No significant intra or extra-axial abnormality was identified. The worker was later diagnosed with post-concussion dizziness. The claim for compensation was accepted and benefits were paid to the worker.

File records showed that the worker continued to experience symptoms and was seen by an ear, nose and throat ("ENT") specialist as well as a neurologist. The ENT specialist saw the worker on March 25, 2011 and reported that her tympanic membranes appeared intact and mobile and there was no evidence of any middle ear or external pathology. Clinical balance tests were good. He noted that an audiogram indicated completely normal hearing.

On April 6, 2011, the neurologist reported that the worker had very typical symptoms of post concussion syndrome predominantly consisting of headaches, dizziness, ataxia, tinnitus, concentration and memory difficulties. The diagnosis was post concussion syndrome and post traumatic labyrinthine dysfunction. The neurologist reported that the prognosis for full recovery was excellent.

On May 27, 2011, the treating physiotherapist reported that the worker's dizziness and neck pain were decreasing and a graduated return to work was recommended. On July 11, 2011, a WCB medical advisor opined that the worker could return to work at sedentary duties only. As the employer was unable to accommodate the worker with modified duties, she did not return to the workplace.

On July 28, 2011, the worker was seen by a second neurologist who reported: "She is recovering from a serious concussion…she has tried to be as active as possible and I have encouraged this."

On January 4, 2012, the worker was seen at a WCB call-in assessment. The medical advisor noted that the worker continued to experience headaches (although less frequently), neck discomfort, bilateral earache, vertigo, lightheadedness, long term memory impairment and concentration difficulties. The medical advisor stated that the current diagnosis was post-concussion syndrome with associated constellation of symptoms consistent with the diagnosis.

On February 22, 2012, the WCB medical advisor commented that an optometrist's report of January 26, 2012 noted possible diagnoses of "accommodative dysfunction, oculomotor dysfunction, and binocular instability."

The worker underwent a CT scan of the brain on February 27, 2012. On March 13, 2012, the WCB medical advisor stated: "The CT scan did not demonstrate evidence of semicircular canal dehiscence. No objective abnormality to account for the ongoing reported symptoms has been identified. Ongoing functional impairments are based solely on [the worker's] report."

In a report dated April 19, 2012, the treating physiotherapist indicated that the worker did not describe dizziness as her main subjective complaint. The worker did describe aching in her ears and right suboccipital pain.

In a report dated October 5, 2012 an ENT specialist outlined his examination findings and stated: "Her gait examination showed some unsteadiness with turns. She had extreme imbalance of Tandem gait." The ENT specialist's impression was: "…suffers from vertigo in association with prolonged and constant headache and lightheadedness sensation. The duration of symptoms suggest a central etiology. Based on history and clinical examination we do not anticipate vestibular dysfunction, however we will objectify the situation with an ENG."

On November 14, 2012, the worker saw a WCB psychological consultant for an assessment. The consultant opined that the worker was not unemployable. Arrangements were made for the worker to see a neuropsychologist with regards to her cognitive functions.

Between October 5, 2012 and November 16, 2012, video surveillance of the worker's activities took place. The surveillance tapes were then reviewed by a WCB medical advisor on November 23, 2012 and by the WCB psychological consultant on December 5, 2012.

On December 10, 2012, the WCB case manager advised the worker: "…it is my opinion that you have recovered from the effects of the January 7, 2011 workplace injury. In addition, it is my opinion that your presentation at various medical examinations, as well, your reports of current functional impairment are not consistent with the observed activities in the video surveillance. As such, the WCB has ended responsibility for your claim effective November 15, 2012 which has resulted in an overpayment in wage loss benefits. A calculation of the overpayment will be provided under separate cover." On February 19, 2013, the worker appealed the decision to Review Office.

On January 16, 2013, the treating physician reported that the worker "suffers from chronic post-concussive dizziness. This patient's other health issues are under investigation, however the patient's dizziness was not improved in over a year since she had the injury. The patient does not feel she is able to return to work. She is not sure if she will be able to do stairs in her previous occupation to perform repetitive bending and lifting. Sudden head movement does seem to exacerbate her dizziness…The patient's condition really have (sic) not changed in terms of symptomatology."

In its decision dated May 1, 2013, Review Office determined that the worker was not entitled to benefits after November 14, 2012. Review Office considered all the medical reports on file, the surveillance information and the opinions expressed by the WCB healthcare consultants and concluded that there was no cause and effect relationship between the worker's reported ongoing difficulties and the compensable injury of January 7, 2011. On May 14, 2013 the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

A hearing was held at the Appeal Commission on July 11, 2013. Prior to rendering a decision on the issue under appeal, additional medical information was requested from the worker's treating physician. On August 6, 2013, the worker was provided with a copy of the medical report dated July 29, 2013 that the panel received and the worker was asked to provide written comment. On August 22, 2013, the panel met further to discuss the case and render 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.

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(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” 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, or the worker attains the age of 65 years.

Worker’s submission:

The worker was self-represented at the hearing and was accompanied by her spouse and her son. The Appeal of Claims Decision form filed by the worker submitted the following reasons for appeal: "My doctor feels I'm not capable of returning to active duties. My symptoms have not improved and I feel the video evidence isn't conclusive to how I feel."

At the hearing, the worker explained that since she fell down the flight of stairs at work, she has had problems with her head. Her balance was now "out of whack" and she had problems walking up or down inclines. Unsteady surfaces and stairs also posed difficulties for her. She would be unable to go up or down stairs without bending over and walking sideways at a very slow pace. Other symptoms which she experienced (but which have now improved) are dizziness, earaches, headaches, numbness on the right side of her face, facial twitches, and tightness/swelling along the back of her neck, which felt like a lump.

The worker's son's evidence was that since his mother's injury, it seemed like her cognitive abilities had been affected. Her long term memories were very foggy and she remembered things differently. He also observed that her walking had become very slow and she often had to hold things for balance. She had also become very forgetful. He stated that she was not the same person ever since the injury.

With respect to earning capacity, the worker indicated that she had not looked for any work as she is no longer able to take the bus and she does not drive. She also had difficulty with walking on sidewalks. The worker had not looked for any sedentary jobs as she had not been trained to perform any of that type of work. She felt that she might be capable of working a full shift if she was able to sit and the job was not too strenuous.

Analysis:

The issue before the panel is whether or not the worker is entitled to benefits after November 14, 2012. For the worker’s appeal to be successful, we must find on a balance of probabilities that after that date, the worker continued to suffer from the effects of her January 7, 2011 workplace accident. For the reasons outlined below, we are able to make that finding.

Since the time of her fall in the workplace in January 2011, the worker has reported a number of different symptoms and there are numerous medical professionals who have been involved with her claim. She has undergone several types of testing but none have been able to identify a specific diagnosis. A large number of diagnoses have been excluded by testing.

With respect to the diagnosis of post-concussive syndrome, the panel notes that the worker underwent an extensive neuropsychological assessment on December 13, 2012. The assessment was conducted for the purpose of determining whether there were any cognitive effects from the fall the worker sustained on January 7, 2011. Overall, the assessment report concluded that the worker generally had a normal profile. Specifically, the report indicated that there was limited evidence that the worker suffered a brain injury other than for a mild concussive injury. The psychologist opined that the worker did not require any workplace cognitive restriction and there was no psychological factor that would be a barrier for return to work. The worker's most notable symptom report was in regards to dizziness.

Based on the neuropsychological assessment, the panel finds that the worker has not suffered any cognitive impairment as a result of her workplace injury.

The neuropsychological assessment did, however, acknowledge dizziness as a notable symptom. At the hearing, the worker advised that since her WCB benefits had been discontinued, she had undergone another course of vestibular physiotherapy. Her evidence was that this physiotherapist also specialized in vestibular rehabilitation but differed in approach from the vestibular physiotherapist the worker saw when she was receiving WCB benefits. An assessment report from the new physiotherapist dated July 8, 2013 indicated that the worker scored poorly on the balance test and demonstrated poor control. It was felt that her poor test performance may be related to lack of center of gravity control, leg weakness and lack of weight shift control. Exercises were recommended.

Following the hearing, the panel requested a report from an otolaryngologist who saw the worker in late 2012. He arranged for the worker to undergo vestibular testing in December 2012. The test results were unremarkable and did not identify any specific findings. At the end of his report, the otolaryngologist concluded: "As a corollary to my follow-up visit, after having had vestibular testing, I do strongly endorse that this is central vertigo. There may be a component of mild benign paroxysmal vertigo, as well as cervical vertigo. Unfortunately, there is little that I can offer this patient to aid her situation." At the hearing, the worker indicated that the otolaryngologist advised her that she had vertigo but that there was no damage to her ears. As such, there was nothing that he could do for her.

Based on the foregoing, the panel finds that after November 14, 2012, the worker did continue to suffer from vertigo which was related to the effects of the workplace injury. While the degree of activity and mobility demonstrated by the worker in the surveillance video would indicate that the extent of the vertigo was not totally disabling, the panel also accepts that the video is not inconsistent with the presence of some degree of vertigo. The worker is not seen to be making sharp, quick movements, and in fact, moves relatively slowly and with her hand out. The footage of her working in the garden shows her bending down frequently, but she does still move relatively slowly and did not sustain this activity for an extended period of time. The worker's explanation at the hearing was that she went to multiple stores on one day due to necessity, as her spouse is usually out of town for extended periods of time, so she had to get everything done in one day. She also acknowledged that she was able to walk, but that would not necessarily reflect what was going on in her head. Further, she tended to have good and bad days, and on her good days, she was able to engage in more activity.

Overall, the panel accepts that the worker has residual vertigo symptoms resulting from the workplace accident. While we do not feel that these symptoms cause the worker to be totally disabled, we do accept that they are sufficient to prevent her from returning to her pre-accident position as a bartender/server, which involves a fast-paced environment where she would be required to go up and down stairs on a regular basis. We therefore find that the worker is entitled to benefits after November 14, 2012. 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 9th day of October, 2013