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 in relation to the workplace incident on December 17, 2013. A hearing was held on November 25, 2014 to consider the matter.

Issue

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

Decision

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

Decision: Unanimous

Background

On January 13, 2014, the worker filed a claim with the WCB for injuries to her head, cheek and mouth that occurred on December 17, 2013 when she was "pushed in the face" by a student. The worker indicated that she did not seek medical treatment until January 2, 2014 as she thought she had cold or flu symptoms. When seen for treatment on January 2, 2014, she was diagnosed with a concussion.

The Employer's Accident Report dated January 9, 2014 acknowledged that the worker suffered a workplace injury on December 17, 2013 but felt that the worker's current illness was not related to the accident.

On January 16, 2014, the worker spoke with a WCB adjudicator regarding the December 17, 2013 accident and the symptoms she experienced afterwards. The worker noted that her head went back after she was punched and later that day her neck felt stiff. She did complete her shift on the date of accident. On December 18, 19 and 20, 2013, she had cold symptoms, i.e. stuffed up nose and feeling "fuzzy." On December 22, 2013 she was throwing up and had diarrhea which continued for a few days. On December 24, 2013 she went to work but was not feeling great. On December 27, 2013, she threw up again and had head pain and dizziness.

Medical information showed that the worker sought medical treatment at a hospital emergency facility on December 27, 2013, a medical clinic on January 2, 2014 and a physiotherapist on January 13, 2014.

In a decision dated January 16, 2014, the worker was advised that the WCB acknowledged that a workplace accident occurred on December 17, 2013; however, no responsibility would be accepted for any lost wages or medical care beyond the date of accident. The WCB's position was that the worker continued to perform her regular work duties without complaint and she delayed in seeking medical treatment. Therefore, a relationship between the workplace accident of December 17, 2013 and the medical treatment she received on December 27, 2013 had not been established.

On March 13, 2014, the worker's union representative wrote the director of short term claims asking that the decision of January 16, 2014 be reconsidered. The union noted that the worker had been diagnosed with a possible concussion and a cervical strain and that healthcare providers had suggested that her symptoms were related to being punched in the face and not the flu as stated by the employer and the WCB. The union's submission included additional medical reports from the treating physicians dated January 10 and February 7, 2014 and a report from a massage therapist dated February 7, 2014.

In a second decision dated March 27, 2014, the worker was advised that the WCB remained of the opinion that while a workplace incident occurred on December 17, 2013, no responsibility would be accepted for any lost wages or medical care beyond the date of accident. The WCB indicated that the new medical information had been considered and a relationship between the worker's ongoing difficulties and the workplace incident had not been established. On May 5, 2014, the union representative appealed the decision to Review Office.

On July 11, 2014, Review Office confirmed that the worker was not entitled to benefits after December 17, 2013. Review Office indicated that the evidence showed that the worker had an accident on December 17, 2013 and that the evidence did not show a causal connection between the accident and the worker's subsequent illness starting on December 22, 2013 for which she first sought medical treatment on December 27, 2013. On July 30, 2014, 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. 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 position:

The worker attended the hearing and was assisted by a union representative. It was submitted that the worker was the victim of an assault in her workplace on December 17, 2013 and that as a result of the assault, she sustained personal injury and suffered a loss of earning capacity. The medical evidence on file supported that the worker sustained a cervical strain, which resulted in tension headaches and possible post-concussion syndrome as a result of the assault. Almost immediately after the assault, the worker did not feel "quite right" but she did continue to work. The worker did not make the connection between the assault and the symptoms she was experiencing until she sought further medical attention due to the continuation of her symptoms. The employer and the WCB believed that the worker's symptoms were due to the flu. In fact, the worker also initially believed this to be the case herself, until she underwent further medical investigations and was directly questioned about the possibility of any head or neck trauma. It was only then that her healthcare providers concluded that there was a connection between the worker's ongoing symptoms and the accident.

It was submitted that all the cornerstones of the compensation system were present: an accident, a personal injury which resulted in a loss of earning capacity, and therefore the worker's claim was acceptable.

Employer's position:

The employer was represented by its disability claims coordinator and an occupational health nurse. The employer's position was that there was no connection between the injury and the worker's illness. The employer questioned the validity of the extent of the December 17, 2013 injury based on the timing of the symptoms in relation to the WCB claim, inconsistencies in medical assessments and impressions, the timing of seeking medical attention and uncharacteristic symptoms based on the injury itself. Medical documentation suggested that the symptoms could be related to other attenuating personal health issues or factors, such as viral illness and/or pre-existing conditions, including neck, cervical condition, history of migraines and depression. Overall, the employer was not challenging that an incident occurred, just the nature of the claim related to the reported injury. In the employer's opinion, the symptoms could be attributable to many other issues or health concerns, and not necessarily to the incident itself.

Analysis:

The WCB has accepted that the worker suffered an accident when she was struck in the face while at work on December 17, 2013. It has determined, however, that the accident did not result in any entitlement to healthcare or wage loss benefits. The question for this panel to decide is the worker's entitlement to benefits as a result of the December 17, 2013 accident.

In order for the appeal to succeed, the panel must find that the worker's compensable injury either required medical aid or caused her to suffer a loss of earning capacity beyond December 17, 2013. On a balance of probabilities, we are not able to make that finding.

The worker's position was that she suffered a cervical strain, tension headaches and post-concussion syndrome as a result of the December 17, 2013 accident. We will deal with each diagnosis separately.

With respect to the diagnosis of post-concussion syndrome, the panel notes that in the initial period immediately following the strike to her face, the worker did not exhibit the usual range of symptoms associated with a concussion, other than a generalized "fuzziness." In particular, the panel notes that the worker did not report any significant cognitive impairment and she was able to continue to perform her duties working with students for the rest of the day, and for the two following days. There was no loss of memory and at the hearing, the worker was able to recall many details regarding the events on the day of the accident, both pre-and-post accident. It would appear that the more debilitating symptoms of intense headaches, nausea and vomiting did not arise until December 22, 2013. The panel feels that the delayed onset of these symptoms makes it difficult to relate them to a proposed concussive injury which had occurred a full five days earlier.

When seen at a hospital emergency department on December 29, 2013 for headaches, vomiting and diarrhea, the chart indicated that on examination, the worker: "looks well, alert and oriented, nad (no abnormality detected), neck supple, normal voice, normal cn (central nervous system), no nystagmus, normal gait." The panel is of the view that this examination is not consistent with the diagnosis of a concussion or post-concussion syndrome.

The panel has also considered the mechanism of injury. While a severe blow to the head could indeed cause a concussion, the panel finds that there is no evidence that significant force was used when the worker was struck in the face. At the hearing, the worker indicated that at the point where the student made contact with her face, there was only a red mark which lasted for about one day. Notably, although struck in the upper cheekbone, the worker could not recall her glasses being dislodged, nor did she suffer any cuts or bruising. It would therefore appear that the physical contact with the head was of a minor nature and was not forceful.

The diagnosis of post-concussion syndrome was not proposed until January 8, 2014. On a balance of probabilities, given the absence of symptoms immediately following the accident, the delayed onset of headaches and dizziness and the minor nature of the physical contact, we are unable to find that this diagnosis is related to the workplace accident of December 17, 2013.

With respect to the diagnosis of tension headaches, again, there was delayed onset and the mechanism of injury involved only minor physical contact. We find that the tension headaches were more likely related to the flu-like illness the worker was exhibiting from December 22, 2013 onwards. We find that the ongoing headaches are not referable to the December 17, 2013 workplace accident.

Finally, regarding the cervical strain, the worker's evidence was that when she was struck, her head went back but she did not fall backwards. The student who struck her was a twelve year old girl, who was small, but strong. The panel acknowledges that as a result of the hit, the worker may have suffered a mild neck strain injury. We find, however, that this injury did not cause the worker to suffer any loss of earning capacity. She was able to continue to perform her duties for the rest of that shift, and she also worked on December 18 and 19. The February 7, 2014 report from the worker's registered massage therapist indicated that when asked how she felt the next day after the incident, the worker said her neck was a little stiff but she felt like she had nothing to be concerned about. The worker did not seek medical attention until she went to an emergency department on December 22, 2013, and when she did go, this was for the headaches and vomiting. She did not seek medical attention for a neck strain.

Based on the foregoing, the panel finds that even if the worker did suffer a mild neck strain on the date of the accident, this injury did not require medical aid or cause the worker to suffer any loss of earning capacity. We therefore find that the worker is not entitled to benefits after December 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 January, 2015