The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was not entitled to benefits beyond January 8, 2013 with respect to her compensable accident of November 7, 2011. A hearing was held on October 17, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to benefits beyond January 8, 2013.

Decision

That the worker is entitled to benefits beyond January 8, 2013.

Decision: Unanimous

Background

The worker completed a Worker Incident Report on November 7, 2011 stating that she injured her left hip, left buttock, lower back and upper left arm/shoulder on November 7, 2011 when she slipped and fell on a patch of ice. The worker reported that she landed hard on her left side. She did not strike her head or lose consciousness. There were no witnesses to the fall but a co-worker saw that she was walking much slower than usual to reach the door.

The Employer's Incident Report dated November 7, 2011 indicated that the worker, while crossing the pavement to the traffic office, slipped on an icy patch and fell landing more on the left side of her body and lower back.

A chiropractor's first report showed that the worker sought treatment on November 14, 2011 with complaints of low back, left hip, neck and left leg pain. The worker was diagnosed with lumbar facet syndrome and left SI syndrome. In a progress report dated December 2, 2011, the chiropractor noted that the worker felt 30 percent better but had a recent onset of dizziness, vertigo, nausea and a possible concussion.

A doctor's first report for an examination on December 2, 2011 outlined the area of injury as left side of body, and reported that the worker said she saw stars when she hit her head. The description of injury was: Slipped and fell at work and hitting left side of body and head. The diagnosis was head injury/post concussive syndrome. The physician also noted a past history of remote brain injury as a pre-existing condition.

On December 12, 2011, the worker underwent an MRI assessment and no intracranial abnormality was identified. The clinical history was: Fall with head injury and loss of consciousness.

On January 30, 2012, a WCB medical advisor commented that there was conflicting information on file as to whether or not a head injury occurred. He said there were no concussion symptoms initially reported and the worker apparently worked for two days post injury. A WCB call-in examination was suggested.

In a report dated January 31, 2012 a neurologist reported that the worker slipped on ice at work on November 7, 2011 and that the left side of her body struck the ground. She was uncertain if she hit her head or if she lost consciousness. He opined that the worker's symptoms were most consistent with post concussive syndrome and that the symptoms would improve with time over the next several weeks to months.

On February 14, 2012, a WCB medical advisor indicated that the current diagnosis appeared to be post-concussion syndrome. He noted that while the reported onset of symptoms was delayed by one month and the worker initially reported that she did not strike her head or lose consciousness, the mechanism of injury would account for a degree of the post concussion symptoms. It was felt that an examination at the WCB would not likely add further additional information.

On February 28, 2012, the worker was seen by an ear, nose and throat specialist ("ENT"). The ENT noted the neurologist's diagnosis of post concussive syndrome and queried whether there was also a vestibular component. The worker was referred to undergo vestibular rehabilitation.

The worker was assessed by a physiotherapist specializing in vestibular rehabilitation on March 14, 2012. The therapist's diagnosis was post concussive dizziness and severely impaired balance. She said the worker required a walker and a cane as she was at risk for further falls.

The worker was seen by a clinical psychologist on May 9, 2012. His impression was that the worker met the criteria for a Major Depressive Episode, recurrent, moderate in severity, without psychotic features. There was also a Pain Disorder Associated with both a General Medical Condition and Psychological Factors. A neuropsychological evaluation was later carried out and on June 10, 2012, the clinical psychologist noted that the evaluation pointed to some difficulties consistent with a post concussion syndrome.

On August 21, 2012, the worker was assessed by a WCB sports medicine advisor and the following comments were made:

1. The current diagnoses appeared to be nonspecific neck pain and nonspecific bilateral hip and back pain.
2. Based on the neuropsychological evaluation, it appeared that the worker's headache, vestibular and cognitive symptoms were related to post concussion syndrome.
3. A WCB psychological advisor should review the file as to whether there was a relationship between these diagnoses and the workplace injury in light of the pre-existing psychological issues.
4. The post-concussion syndrome appeared to be related to a presumed head injury on November 7, 2011 notwithstanding initial reporting on file which did not allude to same.
5. To the extent that the workplace injury contributed to the current symptoms reported at the neck, back and hips, it would be so as contusions/strains. The examination findings were not indicative of a significant impairment in relation to same.
6. In terms of post-concussive syndrome and nonspecific neck, back/hip pain, a pre-existing condition delaying recovery was not identified.

On September 4, 2012, a WCB psychological advisor spoke with the worker's treating clinical psychologist. It was concluded that: "longstanding, significant pre-existing psychological difficulties perhaps may be delaying recovery, but are not materially related to the injury. Second, based on [the clinical psychologist's] assessment report and on his verbal report, the post-concussive cognitive deficits were minimal and would not preclude a return to work."

In a report dated October 25, 2012, an ENT surgeon reported that the worker's difficulties were quite significant and she illustrated considerable impairment in her daily function. He noted that the worker was still being treated for migraines and for vertigo and that he was testing for any evidence of vestibular hypofunction.

A physiotherapy progress report for an examination on December 4, 2012 indicated that the worker had decreased balance, migraines, dizziness, visual difficulties (including with depth and perception), motion intolerance, nausea, poor eye-hand coordination and poor concentration. The therapist noted that the worker was progressing with treatment but very slowly.

On December 7, 2012, the WCB's sports medicine advisor responded to questions posed by the WCB adjudicator. The medical advisor outlined the following opinions:

· the diagnostic criteria for a concussion include a) Injury to the head as a result of blunt trauma, b) acceleration or deceleration forces, or c) exposure to blast.

· the diagnostic criteria for concussion had not been met according to evidence-based guidelines.

· the worker's current presentation was not explained by post-concussive symptoms.

· the worker's current reported symptoms were related to pre-existing conditions rather than to the workplace injury mechanism.

· at the time of the August 21, 2012 call-in examination, the worker's physical diagnoses included nonspecific hip, back and back pain. If these areas remained symptomatic, a pathoanatomical basis for same in relation to the workplace injury over a year ago would not be supported.

In a report dated December 14, 2012, a neurologist reported that the worker was seen in follow-up to be reassessed for headaches. The worker had improved since she was last seen but continued to have significant symptoms. A change in medication was prescribed and Botox therapy for migraines was discussed.

On January 2, 2013, the worker was advised that wage loss and medical benefits would only be paid to January 8, 2013. The case manager determined that the worker's compensable injury was a contusion/strain of the neck, back and left hip, and that her current condition which included physical, psychological, cognitive and neurological issues was not related to the original workplace accident but were more in keeping with the worker's pre-existing condition.

On March 5, 2013, the Worker Advisor Office provided the WCB with medical reports dated January 18, 2013 and February 14, 2013 along with vestibular test results and two claims for disability insurance. The worker advisor's position was that the worker was entitled to further benefits beyond January 8, 2013. He stated: "While we accept that it is unclear whether or not [the worker] actually struck her head as a result of her fall at work, we suggest the available medical evidence supports this incident resulted in signs and symptoms consistent with post-concussive syndrome, which continue to require medical treatment and continue to prevent her from returning to work."

In a letter dated March 8, 2013, the WCB case manager stated that the new information had been reviewed by a WCB medical advisor and that the recent medical information did not establish a continued causal relationship between the worker's current symptoms and the original compensable incident. Therefore no change would be made to the prior WCB decision. On March 12, 2013, the worker advisor appealed the decision to Review Office.

On May 8, 2013, Review Office determined that the worker was not entitled to benefits beyond January 8, 2013. Review Office indicated that it placed more weight on the information collected in the closest proximity to the date of the accident. It concluded that the worker sustained contusion/strain type injuries to her neck, left hip and low back in the accident. This was based on the mechanism of injury, the reported complaints and objective findings as well as x-ray results. It also accepted the opinion of the WCB sports medicine consultant outlined on December 7, 2012.

Review Office also concluded that the worker did not sustain a head injury on the date of the accident. In reaching its conclusion, Review Office noted that the first report of head injury symptoms was on December 2, 2011 to the treating chiropractor. The chiropractor reported that the worker had a "recent onset" of dizziness, vertigo and nausea. If a head injury had occurred, Review Office was of the opinion that the symptoms would have started more immediate to the time of the accident. Review Office referred to certain file evidence to support that the worker provided inconsistent information with regards to the details pertaining to her fall. Review Office felt that the diagnosis of post concussive syndrome diagnosed by the treating neurologist was based on the worker's reported symptoms as his examination of the worker was relatively normal. Review Office also could not relate the worker's cognitive deficits to her accident. It found that the neuropsychologist's opinion that the worker may have a post concussion syndrome was based on the worker's subjective complaints and her report that she had hit her head.

Review Office noted that the worker was able to work on November 9, 10 and 17, 2011. It noted that the worker reported experiencing various symptoms which progressed to her not being able to read, not being able to drive and not being able to walk without assistance. Review Office stated that it could not establish a relationship between the worker's change in function following her accident and the compensable injury. On the balance of probabilities, Review Office felt that the finding of a head injury could not be sustained due to the forces involved in the mechanism of injury. On May 15, 2013, the worker advisor appealed Review office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation:

The worker is employed by a federal government agency or department and her claim is therefore adjudicated under the Government Employees Compensation Act (“GECA”). Under the GECA, an employee who suffers a personal injury by an accident arising out of and in the course of employment is entitled to compensation. The GECA defines accident as including “a willful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause.”

Pursuant to subsection 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under The Workers Compensation Act (the “Act”).

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. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.

Worker’s submission:

The worker was assisted by a worker advisor at the hearing. The worker's position was that she was entitled to further benefits because she was suffering from ongoing post concussive syndrome. It was submitted that the undisputed facts were that the worker fell on November 7, 2011, although it was not clear as to whether or not she hit her head. She took the next day off work, then returned to work for two days before the long weekend. On the Saturday, she went to see a chiropractor for treatment. While he focused on her physical symptoms, neurological symptoms including dizziness, blurred vision, poor concentration and headaches were all documented. The worker's general practitioner provided a prescription for vertigo on November 21, 2011. On November 24, 2011, the worker saw an optometrist for issues with vision and unsteadiness. The worker was referred to a hospital emergency department because of the neurological issues she was reporting at that time. Although the worker was uncertain as to whether or not she struck her head, medical literature indicated that a mild traumatic brain injury does not require a blow to the head. Sudden acceleration-deceleration is sufficient to cause injury. Further, symptoms are not required to start immediately. They can come over days and weeks after an accident. It was submitted that this was what occurred in the worker's case. On a balance of probabilities, the most likely cause of the worker's ongoing symptoms was post-concussive syndrome.

Employer’s submission:

The worker's supervisor and a labour relations consultant from the employer appeared at the hearing. The employer did not take a position with respect to the matter under appeal and were present at the hearing as a resource in case any information from the employer was required.

Analysis:

The issue before the panel is whether or not the worker is entitled to benefits beyond January 8, 2013. 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 November 7, 2011 workplace accident. For the reasons outlined below, we are able to make that finding.

Although the worker candidly admits that she cannot recall whether or not she struck her head when she fell, the panel accepts that the mechanism of injury of falling suddenly and hard could cause her to sustain a concussion. At the hearing, the worker described walking across an icy parking lot when suddenly her feet went up in front of her. Her next recollection was getting up and her pant leg on the left side was wet from ankle to hip. When she got up she was disoriented and unsteady on her feet. She did not recall striking the ground and did not know whether or not she hit her head.

While there is no evidence of a significant blow to the head, the panel nevertheless finds that the worker suffered a concussion injury as a result of the workplace slip and fall. The concussion could have been caused by either an actual strike to the head which the worker cannot recall or by the acceleration/deceleration forces involved in the accident. In a memo dated February 14, 2012, the WCB medical advisor acknowledged that the mechanism of injury of falling could account for a degree of post concussion symptoms. Medical literature also supports this mechanism of injury.

The panel is also satisfied that the worker experienced a reasonably proximate onset of symptoms. Although she did not initially complain of headaches and dizziness when she saw her regular chiropractor on November 14, 2011, the worker's evidence was that she did experience some difficulties with concentration, headaches, blurred vision and some dizziness during the initial days after fall. This became significantly worse approximately one week later so the worker went to a walk-in clinic, as she was unable get an appointment with her regular physician. By November 21, 2011, the worker's condition was sufficiently severe that her general practitioner gave her a prescription for medication to address the vertigo. The panel is satisfied that the temporal proximity between the onset of concussion symptoms and the workplace accident is sufficient to establish a causal relationship. We therefore find on a balance of probabilities that the worker suffered a concussion injury and post-concussion syndrome as a result of her workplace injury.

The specific question before the panel concerns entitlement beyond January 8, 2013. The medical evidence indicates that as of that date, the worker continued to display symptoms associated with post-concussion syndrome, including dizziness and vertigo. In particular, the panel relies on the following medical reports:

• December 14, 2012 neurologist's report which reported that the worker continued to have significant symptoms, including headaches and vertiginous symptoms, especially with head turning and with standing. The neurologist opined that the worker's headaches were consistent with post-concussive migraines related to her head trauma of November 2011. Treatment consisted of a change in prescription medication and the possibility of Botox therapy for migraines was discussed.
• Vestibular testing results from January 4, 2013 indicated that on rotational chair tests, the worker demonstrated markedly reduced gains in all frequencies, inadequate to calculate phase information. The report indicated that the abnormal effects could be due to vestibular deficit, medication effects or CNS dysfunction.
• January 18, 2013 report of the ENT surgeon who indicated that the worker continued to have problematic blurred vision, vertigo, hand coordination, as well as problems with computer screens and florescent lighting. She had regular severe headaches and was sensitive to loud sounds. The ENT opined that: "At this point in time [the worker] presents with symptoms very much in keeping with post-concussive syndrome that can include labyrinthine concussion." Further vestibular physiotherapy was recommended.

In view of the foregoing medical reports, the panel finds on a balance of probabilities that as at January 8, 2013, the worker had not yet recovered from her post-concussive syndrome. Two specialists reported ongoing symptomatology attributable to post-concussive syndrome and active treatment in the form of medication and vestibular physiotherapy was prescribed. The panel finds that the condition had not yet resolved.

The panel notes that at the hearing, the worker described being treated for a condition which may be related to her post-concussion syndrome, namely a comitant exothropia. This condition was identified in an August 21, 2013 report from a specialist in neuro-ophthalmology. The panel makes no comment on whether or not this condition is a continuing sequela of the post-concussion syndrome as we feel this requires further investigation by the WCB. Our decision is limited to the continuation of benefits beyond January 8, 2013, and based on the reports of continuing headaches and vertigo related to post-concussive syndrome, we find that the worker does have entitlement to further benefits beyond that date.

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 December, 2013