Decision #175/13 - Type: Workers Compensation
Preamble
The worker appealed the decision made by the Workers Compensation Board ("WCB") that his ongoing difficulties were not related to the head contusion he sustained at work on February 7, 2013. A hearing was held on December 11, 2013 to consider the matter.Issue
Whether or not the worker is entitled to benefits.Decision
That the worker is entitled to benefits to April 25, 2013.Decision: Unanimous
Background
On February 27, 2013, the worker filed a claim with the WCB for a work-related incident that occurred on February 7, 2013. The worker reported that he was lying underneath a grader to replace a cable. When he stood up, he banged his head against the grader's driver door which had been left open. The worker noted that the operator of the grader saw him rubbing his head after the accident.
When speaking with a WCB adjudicator on March 5, 2013, the worker said he bumped the right side of his head near the temple region on the driver's door of the grader. He said he worked the remainder of his shift following the incident and that he felt fine but his head was sore. He also worked his regular duties on February 8, 2013 and then had the weekend off. During the weekend he did nothing but felt dizziness when waking up. On February 11, 2013 he worked five hours out of nine and then he sought medical treatment. The worker reported that he had a brain aneurism in 1993 and that no surgery had been required.
Medical information included clinic chart notes and a report from the treating physician dated February 15, 2013. CT scan results are also on file dated February 12, 2013.
On March 5, 2013 a WCB sports medicine advisor reviewed the file information and stated:
A pre-existing history of left anterior cerebral artery infarct is noted. Feb. 12/13 head CT findings indicate an arterial-venous malformation in the blood vessels supplied by the left anterior cerebral artery. AV malformations are typically congenital or acquired. In light of the previous history of infarction, the Feb 12/13 CT findings are probably pre-existing.
The diagnosis with respect to the history provided on the worker's accident report, the diagnosis in relation to the reported MOI (mechanism of injury) was a probable head contusion. A temporal delay in development of neurological symptoms would not meet diagnostic criteria for concussion. Based on the reported MOI, the workplace accident is not anticipated to have materially influenced the pre-existing condition of the brain as noted on CT.
Based on the medical opinion dated March 5, 2013, the WCB adjudicator acknowledged that the worker suffered a head contusion on February 7, 2013; however, he was unable to establish a relationship between the head contusion and the further difficulties experienced by the worker. It was felt that the workplace accident was not anticipated to have materially influenced the pre-existing condition and therefore the claim for compensation had been denied.
In a report dated March 14, 2013, a neurologist diagnosed the worker with benign paroxysmal positional vertigo (BPPV). The neurologist stated that this condition was probably provoked by the minor head trauma that took place on February 7 and that it was entirely unrelated to the arteriovenous malformation (AVM) that was demonstrated on the CT angiogram.
On April 23, 2013, the WCB sports medicine advisor stated "If BPPV arose as a result of the workplace injury, then it would be anticipated that vertigo would develop acutely in relation to the injury as opposed to with delay of a couple days."
On April 25, 2013, the adjudicator referred to the WCB medical opinion outlined on April 23, 2013 and determined that there was no relationship between the worker's accepted head contusion and his further difficulties. On May 2, 2013, the decision was appealed to Review Office by the Worker Advisor Office.
On June 4, 2013, Review Office directed that the worker's claim be referred back to the adjudicator to conduct a further investigation and to re-visit his decision.
The WCB adjudicator obtained additional information from the worker regarding his delay in seeking medical attention and from the employer regarding the worker's job duties and reporting of the accident. Additional medical information was also obtained regarding the worker's prior head difficulties from 1993 as well as medical information from a neurosurgeon dated April 11, 2013.
On July 24, 2013, the worker was advised that the WCB was still unable to establish a relationship between a head contusion and the further difficulties he was experiencing based on the additional information. On July 31, 2013, the Worker Advisor Office appealed the decision to Review Office.
On September 25, 2013, Review Office determined that the worker was not entitled to benefits. Review Office considered the mechanism of injury and the worker's evidence that he felt fine after the incident other than for a sore head. Review Office therefore found that the worker likely sustained a contusion as a result of the accident that occurred on February 7, 2013 and that the dizziness he experienced on February 8, 2013 was not related to the contusion injury. Review Office was of the opinion that if the compensable accident caused a more sinister diagnosis such as a brain injury, then the worker's symptoms would have began immediately after the accident. The worker, however, was able to continue working his regular duties until February 11, 2013 with no complaints made to the employer until that time. On October 4, 2013, the Worker Advisor Office 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 for a head contusion. He is seeking wage loss benefits and medical aid benefits.
Relevant provisions of the Act include:
· ss. 4(1) provides that 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.
· ss. 39(1) provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…”
· ss. 39(2) 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.
· ss. 27(1) empowers the WCB to provide such medical aid as the WCB considers necessary to cure and provide relief from an injury.
Worker's Position
The worker was represented by a worker advisor who provided a submission on the worker's behalf. The worker answered questions from his representative and the panel.
The worker's representative noted that despite agreement on diagnosis between the worker's treating neurologist and the WCB medical advisor, and while acknowledging that the worker developed symptoms of vertigo the morning following the accident, which he had no prior issues with, Review Office was not convinced a relationship exists between the worker's confirmed diagnosis of BPPV and his head contusion, which was accepted as compensable.
He submitted that the preponderance of evidence supports a relationship between the worker's workplace accident and the onset of the vertigo symptoms the following morning. He said that because the worker's condition required medical treatment and caused a loss of earning capacity following the accident date, the worker is entitled to benefits.
The worker advised that he is employed as a heavy equipment mechanic. He described his February 7, 2013 accident. He said that while getting up from an inclined position lying on his left side, he hit his right temple on the rounded corner of the door of a grader. He felt "woozy" after the accident and had significant head pain. He did not lose consciousness and was not dizzy at work. He completed his work day. On the morning of February 8, 2013 as he attempted to get up from his bed, he felt dizzy. After the dizziness resolved, he went to work and was able to work the full day. Over the weekend he had periods of dizziness primarily when he got up from an inclined position. He went to work on February 11, 2013 but felt that he could not continue to work due to episodes of dizziness. He called from work to set up an appointment, and left work early to see his physician that afternoon. He said his physician told him not to work, gave him a prescription and referred him to a specialist.
In answer to questions, the worker advised that he did not drive after February 11, 2013 as he was concerned about causing an accident. He said that he had episodes of dizziness when he got up and when he moved his head a certain way. All incidents of dizziness lasted for about one minute. The worker said that he saw the treating neurologist in March 2103. He was shown a neck maneuver exercise that he performed two times a week and his condition eventually resolved within about one month. The neurologist had left it up to the worker to determine when he was fit to return to work.
The worker advised that he returned to work on April 26, 2013 and is working full-time. He has not had any periods of dizziness since his return to work.
Regarding his pre-existing condition, the worker explained that the condition does affect his balance but does not cause dizziness. He said that he has limited mobility from his right knee down. He also advised that he had gamma knife treatment on his pre-existing condition but the results will not be known for a couple years.
Employer's Position
The employer did not participate in this appeal.
Analysis
The issue before the panel is whether the worker is entitled to benefits on his accepted claim. For the worker's appeal to be accepted, the panel must find, on a balance of probabilities, that the worker sustained a loss of earning capacity and required medical aid as a result of the accepted workplace injury. The panel was able to make this finding.
The panel finds, on a balance of probabilities, that as a result of the blow to his right temple, the worker developed BPPV which resulted in a loss of earning capacity. The panel also finds that the workplace injury is unrelated to the worker's pre-existing condition.
In reaching this decision, the panel relies upon the opinion of the treating neurologist who opined in a report dated March 14, 2013 that:
"The history and examination of this patient are strongly suggestive of benign paroxysmal positional vertigo (BPPV). This condition was probably provoked by the minor head trauma that took place on 7 February. In my view it is entirely unrelated to the AVM that is demonstrated on the CT angiogram. I showed [worker] the traditional canalith repositioning manoeuvre ("Epley manoeuvre") that is used to treat BPPV, and suggested that he find some demonstrations of this manoeuvre on YouTube. I recommend that he perform this operation several times a week, and told him I expected his symptoms would gradually resolve…"
The panel also notes that the worker's symptoms are consistent with the information in an article from the Mayo Clinic website on BPPV that was added to the file by the worker advisor. This article confirms that BPPV is often associated with a minor blow to the head. The article notes that it is characterized by brief episodes of mild to intense dizziness which is triggered by specific changes in the position of the head, such as tipping the head up or down, and by lying down, turning over or sitting up in bed.
The panel notes Review Office relied upon the opinions of a WCB medical advisor in its decision. On April 23, 2013, the medical advisor opined that "If BPPV arose as a result of the workplace injury, then it would be anticipated that vertigo would develop acutely in relation to the injury as opposed to with delay of a couple days." (Underlining added)
The panel finds this opinion is based on incorrect facts and therefore attaches no weight to the opinion. The panel finds that the symptoms began on February 8, 2013. This date is derived from the following:
- worker's evidence that he first experienced the vertigo on February 8, 2013 as he stood up to get out of bed.
- chart notes from February 11, 2013 medical appointment which indicate "left sided numbness and dizziness for a few days."
- treating neurologist's note dated March 13, 2013 which indicates "The symptoms began on 8 February."
Regarding the period of entitlement, the panel finds that the worker's loss of earning capacity commenced on February 11, 2013, when he left work early to obtain medical attention, until April 26, 2013 when he returned to work. The worker's evidence at the hearing was that he performed the maneuver recommended by the treating neurologist a couple times per week, and felt that his symptoms had resolved sufficiently that he returned to work on April 26, 2013. The panel finds the worker's return to work is consistent with the treating neurologist's March 13, 2013 note which stated "I expect that it will resolve over a period of weeks with the exercises that I have prescribed."
The worker's appeal is accepted.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 17th day of December, 2013