The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his ongoing symptoms were not related to a concussion injury he sustained at work on August 8, 2012. A hearing was held on February 18, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits beyond August 12, 2012.

Decision

That the worker is not entitled to wage loss benefits beyond August 12, 2012.

Decision: Unanimous

Background

On August 8, 2012, the worker reported that he suffered a head injury when a truck that was up on a jack came down and struck his head. On August 9, 2012, the worker was diagnosed with a concussion by his treating physician. On August 13, 2012, the worker returned to work performing modified duties. His claim for compensation was accepted by the WCB.

On September 17, 2012, the employer called the WCB to advise that the worker was terminated from employment due to misconduct issues while attending an off-site training session. The employer reported that the worker had consumed alcohol after the training session and he caused damage to hotel property. The worker said he could not remember causing any damage and said he must have blacked out due to his head injury of August 8, 2012.

Medical information received from the treating physician dated September 17, 2012 indicated that the worker had symptoms of post concussive syndrome and a CT scan was being arranged.

On September 20, 2012, the worker attended the WCB's offices to advise that he had been having ongoing symptoms related to his concussion injury and that he was scheduled to undergo a CT scan. The worker described his ongoing symptoms as sleep walking, memory loss, sensitivity to light, confusion, dizziness, nausea and headaches behind his eyes. The worker said his foreman knew about his headaches. The worker went on to say that he was wrongly terminated from employment and he could not remember damaging any hotel property. He said he must have blacked out as he was missing about 3 to 4 hours of memory from that evening.

A CT scan report dated September 29, 2012 indicted no evidence of intracranial hemorrhage.

On October 19, 2012, the treating physician outlined the dates that he saw the worker for treatment between August and October 2012. When seen on August 9, 2012, the worker denied any loss of consciousness or break to the skin but was experiencing headache and sensations of cloudiness and dizziness. On examination, the worker was found to be alert and oriented and there was a small hematoma to his occiput. The worker was instructed to rest as much as possible and that his symptoms would likely resolve over time.

When next seen on August 16, 2012, the worker reported that he was feeling reasonably well but that some activities at work were causing him headaches. The worker reported that he tried regular duties on August 14, 2012 and felt a great pressure in his head when trying to lift tires. The worker indicated that watching TV and activities on his computer for 20 minutes or more led to the same cloudy and dizzy sensations that he had experienced earlier. The worker was encouraged to continue with modified duties and not resume his regular duties.

When seen next on September 17, 2012, the worker indicated that things were generally getting better until a week or two earlier when he had the alcohol related incident. The worker said he may be sleep walking and was continuing to have intermittent photophobia when exposed to direct sunlight for more than 10 minutes. The worker disclosed that he had 4 or 5 drinks that particular evening and emphasized that was normal for him for that type of social interaction. The physician stated: "I was immediately concerned by this and indicated to him that disinhibitory actions can occur while experiencing concussion or post concussion syndrome and that I felt at this point we should probably consider doing some additional testing….On September 21, 2012 four days later and one week before his CT scan, we reviewed again that activities such as TV, reading, computer (now emailing as he was trying to find a new job) were all increasing his symptoms and he needed to stop them immediately. I last saw him on September 28, 2012 and he said that things were gradually starting to improve and we discussed we were awaiting the CT scan and he may still benefit from a neurology consultant as I was concerned that his concussion was taking a long time to resolve."

On November 15, 2012, a WCB medical advisor reviewed the worker's file and stated that there was no relationship between the current non-specific complaints to the August 8, 2012 workplace incident.

By letter dated November 15, 2012, the worker was advised that he was not entitled to benefits as the evidence did not support that his ongoing head condition was related to his original workplace injury.

In March 2013, the WCB received a report from a neurologist dated December 11, 2012. The neurologist provided details of his examination findings and outlined the impression that the worker's symptoms were consistent with post-concussive syndrome related to his head trauma at work and that his headaches were related to the concussion. The neurologist anticipated that the worker's symptoms would slowly improve with time and that it may take up to one year for his symptoms to significantly improve.

On March 27, 2013, a WCB medical advisor reviewed the December 11, 2012 report and commented that the neurologist suggested that the worker's ongoing headaches related to the effects of the August 2012 workplace injury but no abnormal findings were reported, only ongoing subjective complaints. The medical advisor indicated that it was therefore probable that the worker could safely work without the need for compensable restrictions.

On March 28, 2013, the WCB advised the worker that the weight of evidence did not support that his ongoing head condition was related to his original injury and that it was safe for him to work without the need for compensable restrictions or ongoing medical treatment. On April 9, 2013, the worker appealed the decision to Review Office.

On June 6, 2013, Review Office concluded that the worker was not entitled to benefits beyond August 12, 2012. Review Office outlined the opinion that there was sufficient evidence on file to support that the worker sustained a concussion on August 8, 2012 but was unable to find that the worker's actions on September 12, 2012 were in any way related to the concussion he sustained. Review Office found that the incident occurred in the evening and after the worker had consumed alcohol. The worker was not performing an activity incidental to employment. It therefore was determined that the September 12, 2012 incident did not arise out of or in the course of employment.

Review Office further was of the opinion that although the worker still had some symptoms of post concussive syndrome he was capable of performing his regular duties. The worker had demonstrated his ability to perform his job duties prior to September 12, 2012 and there was insufficient evidence to support that he would not have been able to continue working after September 12, 2012. On July 16, 2013, the worker 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.

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. It was submitted that he ought to be entitled to further wage loss benefits. The worker described his term of employment with the employer. He started on July 3, 2012 as a management trainee. As a trainee, he was required to spend time working in each of the departments so he would have experience in all areas of the business. The worker was placed on the semi-truck pad where he performed maintenance on large vehicles. The worker stated that he was intentionally overloaded to test whether or not he could handle the workload. On the day of the accident, it was hot, busy and near the end of the day. The worker was laying on his stomach under a trailer when a jack failed and the trailer came down and struck him on the back of the head. His head then hit the ground. The worker's memories of this part were not clear but he believed that he blacked out.

After being hit, the worker felt dizzy but was able to walk and continue to function. He completed his shift, which was about another hour then went home. That evening, the worker developed symptoms including disorientation, dizziness, vomiting and light sensitivity. The next day he went to a clinic and was diagnosed with a concussion.

The worker returned to work after a few days off but was restricted by his doctor to modified duties and was told to avoid any strenuous activity. The worker's evidence was that while he was given some lighter work, he was also required at times to go back to the truck pad to help out. As a management trainee, the worker did not want to disappoint so he pushed himself to do everything that was asked of him. By August 20, 2012, the worker had returned to regular duties. The worker felt that he had returned to full regular duties prematurely, despite the fact that he was still experiencing symptoms.

With respect to the off-site training incident, the worker advised that as a management trainee, he was scheduled to travel to British Columbia to participate in a 10 day training program which started on September 3, 2012. The program was mostly in a class room setting, but there were also some hands-on sessions. On the evening of September 12, 2012, a group of participants went to a restaurant for dinner and drinks. The last thing that the worker recalled was coming back from the restaurant and having drinks in one of the hotel rooms. This was the first time the worker had consumed any alcohol since his injury. He was unaware that anything had happened until after the training session the following day when he was informed that video surveillance implicated him in some damage which was incurred to the hotel elevator. The worker's evidence was that he had no recall of the events that evening so he could not deny that he was potentially involved. In order to resolve the situation, he was prepared to accept responsibility for the damage.

Overall, the worker's position was that he was injured at work and at the time he was terminated by the employer, he had not yet fully recovered from his injury. He also submitted that his neurologist supported the view that his memory loss could have been due to the effects of the concussion combined with the alcohol consumed. The worker's physician had not yet cleared him to return to full duties and the worker felt that he ought to be entitled to further wage loss benefits after August 12, 2012.

Employer's submission:

A claims administrator represented the employer at the hearing and participated via teleconference. The employer supported the decision made by the WCB. It was noted that the worker's physician did clear him for modified duties as of August 13, 2012 and if there had been a problem with any of the duties being performed, the worker could have seen his physician for help. This was not done. The worker was asked every day how he was doing and feeling by the employer, and he had no complaints. It was also available for the worker to defer his attendance at the training program until the next session, but he did not do so. Ultimately, it was submitted that individuals are in charge of their own health and well-being, and if the worker felt that he was not able to return to his duties, the employer would not have forced him to return to work.

With respect to the off-site training incident, the employer noted that the witness statements indicated the amount of alcohol consumed by the worker and were self-explanatory.

Analysis:

The issue before the panel is whether or not the worker is entitled to benefits beyond August 12, 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 a loss of earning capacity related to his August 8, 2012 workplace accident. For the reasons outlined below, we are not able to make that finding.

There is no dispute that the worker suffered an injury to his head during the course of his employment and as a result, sustained a concussion. The question to be considered by the panel is the extent to which the effects of the concussion impaired the worker's earning capacity after August 12, 2012.

The accident occurred on August 8, 2012, which was a Wednesday. The worker missed work on Thursday and Friday, then returned to modified duties on Monday, August 13, 2012. By the following Monday, August 20, 2012, he returned to full regular duties, albeit with some minor modifications, such as being able to take extra rest breaks when needed. He continued to work for the next two weeks without any record of complaints to the employer or visits to his doctor. At the beginning of September, he travelled to British Columbia to take part in off-site training, and was able to fully participate in the activities for the entire 10 day program. The worker's evidence was that on September 13, 2012, his team excelled at the practical skills challenge and came close to beating the company's best recorded time. This suggests the worker was able to function at a very high level. In the panel's opinion, the work pattern exhibited in the 4 weeks between the return to work and the termination of employment demonstrated a minimally impaired ability to work and we find that the worker did not suffer any loss of earning capacity during this period.

With respect to the incident on September 12, 2012, the panel finds that there is not enough evidence to satisfy us the worker's actions on that date were caused by the effects of his concussion. Prior to this incident, there were no reported episodes of erratic behavior on the part of the worker. The worker's physician acknowledged the possibility that disinhibitory actions may occur while experiencing concussion or post concussion syndrome, but a "possibility" is not enough to satisfy the balance of probabilities test. This is particularly so in this case where only mild concussion symptoms were previously reported and CT imaging showed no abnormal findings. While we make no specific finding in this regard, the panel notes that the worker's actions could equally be attributable to an overconsumption of alcohol, which would be unrelated to the effects of his compensable injury.

Overall, the panel is not satisfied on a balance of probabilities that the worker's earning capacity was impaired by the effects of his concussion beyond August 12, 2012. We therefore find that he is not entitled to wage loss benefits beyond that date. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
B. Simoneau, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 1st day of April, 2014