The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") which determined that she was not entitled to benefits after April 17, 2013 with respect to her work-related accident. A hearing was held on February 20, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to benefits after April 17, 2013.

Decision

That the worker is not entitled to benefits after April 17, 2013.

Decision: Unanimous

Background

The worker filed a claim with the WCB for injury she suffered to her left cheek, jaw, neck and head on April 13, 2013 from the following work-related accident:

We had a patient who was combative. He hit me with a metal wand on my left side of my face. No teeth were broken. I have an abrasion. The doctor didn't want to stitch it. He gave me a tetanus shot and antibiotics, which didn't agree with me. I went back to emergency the next day and I was given a topical antibiotic. This incident caused me to injure left cheek, jaw, neck and head.

The worker advised that she did not return to work on April 14 because she did not feel well and could not sleep. She was running to the washroom due to the medication she was taking for her injuries. The worker said she had a headache and it hurt to open her mouth and chew. The worker reported that there were no initial witnesses and the RCMP had been called. The patient that had assaulted her had dementia and was a threat to staff and other patients.

A Doctor's First Report showed that the worker was seen for treatment on April 13, 2013. The physician noted that the worker was hit in the head with a water hose. He noted that the worker complained of significant headache and pain in the left zygoma. Examination findings were outlined as "Small 2 cm long c-shaped laceration of the left cheek, not bleeding and superficial, tender over the cheek-zygoma area. PEARL." The physician diagnosed the worker with a minor head injury and said she could return to her regular duties by April 14, 2013.

In a doctor's progress report for an examination on April 17, 2013, the treating physician stated that the worker was doing well. He noted a minor laceration on the left cheek and full range of motion in the jaw. He indicated that the worker had "recovered" and was "reassured."

The next doctor's progress report indicated that the worker was seen for treatment on May 2, 2013. The physician stated: "Pt feels not right, fuzzy, no vertigo, head hurts in the back of the head, pressure in ears. Mornings are ok, evenings are bad, memory not good, states this started post trauma at work."

The treating physician submitted further progress reports to the WCB for examination of the worker on May 5, 14 and 24, 2013. The worker complained of pressure in her ears and head, coughing up green phlegm, bilateral middle ear effusions and tenderness in the mastoid and sinuses.

On May 15, 2013, the worker underwent a brain CT and CT of the temporal bones. The brain CT showed no acute intracranial pathology. The CT of the temporal bones showed minimal opacification of the interior right side mastoid air cells. The remainder of the mastoid air cells were clear. The temporal bones were otherwise normal in appearance.

On May 31, 2013, a WCB case manager sought medical advice from the WCB's healthcare branch as the worker contended that she was suffering from post-concussive syndrome as a result of the April 13 accident. In a response dated June 6, 2013, a WCB medical advisor stated the following:

In order to have post-concussive syndrome, there had to be a dx (diagnosis) of concussion first.

A concussion is dx'd when there is a traumatic injury to the head area, followed by an immediate alteration of mental state and/or impairment of physical function. There should be report of:

-loss of consciousness

-alteration in mental state at the time of injury, manifested by confusion, disorientation, slowed thinking

-loss of memory immediately before or after the injury

-acute neurologic deficit.

None of these criteria have been met in this case. The worker did receive a blow to the head, but the only symptom documented was pain/headache. No neurological deficits were noted. This does not meet the criteria for a concussion, so the symptoms following cannot be defined as post-concussive.

The doctor notes that the worker recovered within a few days. Then about a week later she presented with pressure in the head. She has been noted to have effusions in the ears, green phlegm, and tenderness in the sinuses. This presentation is not consistent with being hit in the face with a hose/metal piece.

Even if a concussion were dx'd, the worker's presentation would not be consistent with post-concussive syndrome. Her course is not consistent with the natural history of that condition. Symptoms typically improve with time to full recovery. She apparently recovered by April 17 (clearly reported on doctor's report) and then got worse about a week later. At that time, the symptoms were different and clinical findings of congestion were noted. This is not a symptom or finding of post concussion or post blow to the face.

On June 13, 2013, the WCB determined that the diagnosis consistent with the workplace mechanism of injury was a minor head injury (abrasion and hematoma) and by April 18, 2013, the effects of the compensable injury had resolved. It was further determined that the criteria for a concussion had not been met and any symptoms currently experienced by the worker were unrelated to her April 12, 2013 compensable injury.

Following the decision of June 13, 2013, a report was received from a neurologist dated June 21, 2013. The neurologist outlined his opinion that the worker had a severe post concussion syndrome and that her biggest problem was her ongoing depression. He noted that an MRI was being arranged to reassure the worker that she had no evidence of any intracranial problem.

On July 7, 2013, the new medical information was reviewed by the WCB medical advisor at the request of the case manager. The medical advisor indicated that the worker's post accident symptoms of headache, and dizziness, could not be used to make the diagnosis of concussion. The medical advisor stated: "The neurologist sees the worker more than two months after the workplace injury. He would be unable to make the dx of concussion two months previously, when all he notes is that there was no loss of consciousness. He bases the dx on her current symptoms and as noted above, the post injury symptoms cannot be used to make the initial dx of concussion."

On July 15, 2013, the worker was advised that the new medical information had been reviewed and that there would be no change to the initial decision of June 13, 2013. On July 30, 2013, the decision was appealed to Review Office by the worker's union representative who contended that

the worker's current symptoms were consistent with the diagnosis provided by the treating neurologist and was the result of the head injury she sustained at work on April 13, 2013.

On September 27, 2013, Review Office determined that the worker was not entitled to benefits after April 17, 2013. Review Office felt that the worker sustained a hematoma and superficial left cheek laceration as a result of the compensable accident and had recovered from same as of April 17 based on the medical reporting in the first four days following the accident. Although the worker may currently have met the criteria for a diagnosis of post-concussion syndrome, she did not suffer a concussion as a result of the accident. Therefore any diagnosis of a post-concussion syndrome would not be related to her accident at work on April 13.

On November 25, 2013, the union representative appealed Review Office's decision to the Appeal Commission. Attached to the written submission provided by the union representative was a 3 page report dated November 11, 2013 from the attending neurologist. In it, the neurologist stated that he had no difficulty accepting the fact that the worker had post-concussion syndrome due to the head injury that she suffered at work. Prior to preparing the report, the neurologist telephoned the worker to understand her situation better and to get more insight into why the diagnosis of post-concussion syndrome was not entertained right from the beginning.

A hearing was held on February 20, 2014. Following the hearing, the appeal panel met to discuss the case and decided to request additional medical information from the worker's treating physician. The requested information was later received and was forwarded to the interested parties for comment. On April 22, 2014, the panel met further to discuss the case and render its 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 assisted by two union representatives at the hearing. It was submitted that the worker was entitled to ongoing benefits beyond April 17, 2013. On April 13, 2013, she suffered a terrible accident when an agitated and confused patient hit her in the head with a metal sprayer. The worker gave a detailed narrative of the events from April 13, 2013 onwards. She indicated that after the assault, she was very shaken, the adrenalin was pumping and her blood pressure was high. Although she did not feel right, she was head nurse on the ward and felt that she had to stay in control of the situation to make sure that everyone was safe. She moved the other patient out of the room and then called for assistance from other nurses and the RCMP. She tried to contact the physician on call but could not connect. The worker prepared an injection for the patient, but asked one of the other nurses to administer the needle. The patient was put back into his bed and the worker went to the desk to organize her thoughts. Approximately 10 minutes later, the patient was back out of his bed and was argumentative. The worker tried to coax the patient back to his bed, but he took off down the hall. The worker called a Code White, and other nurses and three RCMP officers responded. The worker called again for the doctor, and was able to speak with the physician on call. He gave orders for a sedative, and the worker asked another nurse to administer it for her.

After the patient was subdued, the worker went to the emergency department. Her evidence was that it: "felt like my head was just ready to pop and my pulse is way high and just really, you're on a rush." The worker sat at the ER desk for a while trying to calm herself. The physician was not available, so the worker returned to her ward as she felt she had to get her paper work done. The worker stated she is a very conscientious employee and felt that the required protocols took priority over her physical state. Eventually, the worker saw the physician at about 7:30 am. The worker's evidence was that her blood pressure was still high at the time and that she told the physician that she had pressure in her ears and her head. The physician gave her some medication to bring her blood pressure down and said to follow up in a few days.

The worker next saw the physician on April 17, 2013. In the interim, she had returned to the emergency department on April 14 as the antibiotics she had been given were causing her symptoms of diarrhea. She was given a sick slip and remained off work for the next three days. When she saw the physician on April 17, the worker's evidence was that she told him that she previously had not been able to open her mouth wide and chew properly, but that she could now chew some food and eat. She stated that she had not been able to sleep. She also advised that she had a lot of pressure in the back of her head and ears, such that she could not lay on the back of her head. The physician told her that this would all pass and that she would get over it.

The worker then had a week off in her shift rotation. On her next scheduled day on May 1, 2013, she did go to work and by noon she knew that things were not right. The noise, lights and stimulation bothered her and she could not concentrate or hold a thought. She spoke with her

supervisor and said that her brain was not right. She managed to finish her shift, but did not return to work after that. Her symptoms progressed onwards from there, and balance became an issue. The worker was not sleeping, and continued to have pressure and ringing in her ears. Any sound or vibration would disturb her. Any slight fast motion would cause vertigo. The worker stated that these symptoms were present "from pretty well the beginning" and that her physician was aware of them. The worker was very disappointed that the physician did not write them down. He just kept reassuring her that the symptoms would go away. Unfortunately they did not.

It was submitted on behalf of the worker that the physician was not thorough in his documentation of the worker's true condition nor in his initial assessment. The worker merely followed his advice and should not be penalized for her doctor's misdirection. Other specialists seen by the worker referenced the workplace accident in their reports and stated that the symptoms of headaches and pressure in the head resulted after the workplace accident. Both specialists also recommended a referral to a neurologist as they queried post-concussive syndrome. The worker's condition was that of post-concussive syndrome and it took a long time to get the appropriate diagnosis. It was submitted that the WCB was too quick to rely upon the criteria for an initial concussion diagnosis and it relied on one report from the physician which was an inaccurate reflection of the worker's condition and was inconsistent with the worker' reporting on other reports. Overall, the worker's position was that she should be entitled to benefits beyond April 17, 2013 because her ongoing symptoms and inability to work were related to the compensable accident of April 13, 2013.

Employer's submission:

An advocate represented the employer at the hearing. The employer's position was that based on the information that was available to the WCB, it would be difficult to overturn the decision. Nevertheless, the employer acknowledged that the physician may not have been a good historian and suggested it may be worthwhile to obtain a more informed medical opinion, particularly in response to the neurologist's report of November 11, 2013. The employer felt that the worker handled the traumatic incident professionally and acknowledged that events such as these are often under-reported. The employer did not take a position on whether or not the worker had post concussive syndrome and stated that it was up to the panel to decide. The employer did feel, however, that further investigation may be warranted and it did not want to stand in the way of a valid claim.

Analysis:

The issue before the panel is whether or not the worker is entitled to benefits after April 17, 2013. For the worker’s appeal to be successful, we must find on a balance of probabilities thatafter that date, the worker continued to suffer a loss of earning capacity related to her April 13, 2013 workplace accident. For the reasons outlined below, we are not able to make that finding.

This was a very difficult case to decide. The panel does not question that the worker currently suffers from post-concussion type symptoms. The issue for our consideration, however, is whether or not a causal relationship can be established between her current difficulties and the workplace incident of April 13, 2013.

According to the June 6, 2013 memo from the WCB medical advisor, in order to have post-concussion syndrome, there has to be a diagnosis of concussion first. A concussion is diagnosed when there is a traumatic injury to the head area, followed by an immediate alteration of mental state and/or impairment of physical function. According to the medical advisor, there should be report of loss of consciousness, alteration in mental state at the time of the injury, manifested by confusion, disorientation, slowed thinking, loss of memory immediately before or after the injury and/or acute neurologic deficit. These are the criteria for finding a concussion.

Similarly, the November 11, 2013 report of the treating neurologist stated that with development of post-concussion syndrome, the symptoms usually begin immediately. He further stated that the most important symptoms following head injury are headache, dizziness, anxiety, irritability, personality change, fatigue and difficulty with information processing and multi-tasking. The neurologist stated that: "[The worker] likely had all these symptoms right from the time of her head injury."

On review of the evidence, the panel is of the view that the worker did not exhibit many of these symptoms immediately following her head injury. In particular, the panel notes the following:

• The incident occurred at approximately 1:30 am. After she was struck on the head, the worker was able to continue to follow protocol and fulfill her duties as head nurse. This included completing the proper documentation and paperwork. The only task the worker was unable to complete was the administering of injections, although she was able to prepare one of the needles for injection.
• At 3:50 am the worker attended at the emergency department. The chart notes reference a 3 cm laceration, increased heart rate and headache, but do not indicate any concerns regarding altered mental state.
• Of note is the "Patient History" which states: "c/o (complaining of) headache prior to incident at 2000. Took migraine med at that time." It would appear that the worker had been experiencing a headache both before and after the incident.
• The worker returned to her ward at approximately 4:40 am. She came back to the emergency department at 7:30 am when a physician was available. The chart notes indicate that she was complaining of migraine headache and sore neck at that time. She was able to move her neck and limbs well. She denied emesis (vomiting). Again, there was no observation of altered mental state.
• The next day, on April 14, 2013, the worker re-attended the emergency department at 1:35 pm. Her presenting problems related to an upset stomach due to the antiobiotics she was prescribed. The chart notes are difficult to read, but they do not appear to reference any concerns regarding altered mental state. Notably, the initial assessment notes indicate that the worker "denies headache."
• The worker's next follow up was 3 days later on April 17, 2013. The physician's WCB report was brief, simply indicating: "Follow up, patient is doing well." The physician's chart notes were also brief and indicated: "minor laceration left cheek, full ROM in jaw, no concerns." The notes indicated that the physician's assessment was that the worker was "recovered" and the plan was to "reassure." There was no observation of altered mental state.
• In order to have greater certainty, the panel asked the physician to review his notes and advise what he could recall regarding the worker's presentation on that date. By letter dated March 28, 2014, the physician advised he could not recall the worker presenting on April 17, 2013 with concussion-like symptoms. He remembered a rather trivial injury and stated that the worker might have had a mild headache. The physician added that he had limited experience in post-concussion syndrome, and remained of the opinion that the worker likely had post-concussion syndrome.
• The next attendance was 8 days later on April 25, 2013 when the worker presented for pressure in the head and nose. She was observed to be very congested and a sinus infection was suspected. The worker did indicate that she felt like she was in a haze, but no other altered mental state was reported.
• It was not until the attendance on May 2, 2013 that the worker reported that she felt fuzzy, no vertigo, but that her memory was not good and that if her head turned fast, it felt like it took time for her eyes to focus. Although the worker indicated this had started post trauma at work, this was the first time she reported altered mental state to her physician.
• On May 8, 2013, the worker was still very congested with pressure in ears and head and coughing green phlegm noted. It is difficult to discern the extent to which the symptoms of "fuzziness" may have been attributable to the sinus infection.
• From early May onwards, the worker's condition worsened and new symptoms of loss of balance, sensitivity to vibration, noise and light, inability to concentrate, lightheadedness, and ringing in ears were reported. These are the types of symptoms the panel would have expected to see in the initial period following the incident.

Overall, while the panel has sympathy for the worker's situation, we unfortunately find that the evidence is not sufficient to satisfy us on a balance of probabilities that the worker exhibited signs of a concussion in the initial days and weeks following the workplace incident. She did not report symptoms of fuzziness to her physician until May 2, 2013, which was 19 days after

sustaining the blow to the head. In the immediate aftermath after the assault, the worker was able to remain in control of the situation and in fact demonstrated competent cognitive ability to complete most of her duties as the head nurse in her ward. She was also able to complete all the necessary paperwork, including her accident report, in careful and accurate detail.

The neurologist's report of November 11, 2013 supports a causal relationship between the workplace incident and post-concussion syndrome, but we note that he based this opinion on his understanding that the worker immediately exhibited symptoms of dizziness, poor concentration, inability to sleep properly, pressure in the head, anxiety, poor attention span, trouble with information processing and multi-tasking. It does not appear that the neurologist was aware of a number of factors upon which the panel places weight, including the fact that the worker had a migraine headache prior to the incident, that the worker continued to demonstrate competent cognitive ability post-trauma, and that the worker was seen at the emergency department on April 14, 2013 at which time she denied headache and made no mention of altered mental state.

In view of the foregoing, the panel agrees with and accepts the WCB medical advisor's opinion that the worker's presentation was not consistent with post-concussion syndrome. As a result, we find that there is no causal relationship between the worker's current difficulties and the workplace incident of April 13, 2013 and that the worker is not entitled to benefits after April 17, 2013.

The worker's appeal is dismissed.

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 June, 2014