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 further compensation benefits based on the findingthat she did not sustain a concussion injury from the December 2012 compensableaccident.  A hearing was held on May11, 2015 to consider the matter.

Issue

Whether or not the worker is entitled to benefits after November 4, 2013.

Decision

That the worker is not entitled to benefits after November4, 2013.

Decision: Unanimous

Background

The worker filed a claim with the WCB for an accident occurring at work on December 3, 2012 when a box fell from a top shelf landing onto her head. The worker reported that after the incident, she sat down and felt scared. She then rushed out of the freezer area. She said the accident caused a concussion. The worker stated that she was not sure the weight of the box but said the product could weigh approximately 10 to 15 pounds each.

On December 5, 2012, the worker advised a WCB adjudicator that when the box fell, she injured her head, neck and face and her eyeglasses were damaged. She had a scratch near the right side of her eye. The accident was not witnessed as she worked alone. The accident was reported to a supervisor after it occurred. She did not lose consciousness but did vomit twice about one hour after the incident. She also experienced a sore neck, dizziness and could not sleep.

A doctor first report dated December 3, 2012, noted that the worker had dizziness, headache and vomited twice since the incident. The diagnosis was a mild concussion. A Physiotherapy Initial Assessment dated December 14, 2012 diagnosed the worker with a cervical spine sprain/strain.

On January 4, 2013, a WCB adjudicator contacted the worker for additional information. The worker stated that when the product fell on her head, it went onto her right shoulder and she fell backwards onto her buttocks. She was concentrating more on her head and shoulder and she never noticed her back until three days later. She experienced pain in her low back and tingling that went down to her legs, toes and feet. When she returned to work on January 3, 2013, she had to leave work early due to dizziness. Her boss noticed that she could not function. The worker said she still felt dizziness and her legs tremble when she stands for too long.

The claim for compensation was accepted based on the diagnosis of a mild concussion and wage loss benefits were paid effective December 4, 2012. In February 2013, the worker again attempted a return to work but had to stop due to dizziness.

In a doctor progress report of April 4, 2013, the treating physician reported that the worker was being referred to a neurologist as the dizziness was not getting better.

On April 30, 2013, the worker underwent vestibular testing by a physiotherapist. The impression was: Non-vestibular dizziness, more likely central from concussion. There may be an element of cervical vertigo secondary to her neck injury. This will likely take a lot longer to resolve as is typical with central injuries.

In August 2013, a plastic surgeon reported that the worker was seen for a mass that developed on her right shoulder following the work incident in December 2012. In a later report, the plastic surgeon requested WCB authorization to surgically remove the mass. In a memo to file dated October 4, 2013, a WCB medical advisor noted that the WCB had not accepted responsibility for a right shoulder injury and the request for surgery was denied.

At the request of case management, the worker's file was reviewed by a WCB medical advisor on October 18, 2013. The medical advisor outlined her opinion that based on review of the mechanism of injury and the early medical reports, the worker's initial presentation did not meet the criteria for a concussion but was most consistent with a head/neck soft tissue injury.

Based on the WCB medical opinion, the worker was advised on October 28, 2013 that wage loss benefits and coverage for medical aid would end on November 4, 2013. The WCB's position was that the worker's post concussive symptoms were not supported as there was no confirmed evidence of a concussion. It was felt that the worker suffered a soft tissue injury to her head and neck in relation to the December 2012 accident and that the worker's current presentation was not medically accounted for in relation to the minor head/neck injury 10 months ago.

On November 21, 2013, the Worker Advisor Office requested reconsideration of the October 28, 2013 decision based on a report from a neurologist dated November 8, 2013 and a medical note from the worker's family physician. The worker advisor contended that the new reports support that the worker had post-traumatic syndrome/post-concussion syndrome related to her workplace accident and therefore she was entitled to further benefits.

At the request of case management, the worker was seen at the WCB offices for a call-in assessment on January 8, 2014.

On January 23, 2014, the worker was advised that the WCB was still of the opinion that she did not suffer a concussion and therefore the diagnosis of post-concussive syndrome was not supported. The decision was based on the findings outlined by the examining WCB medical advisor following the January 8, 2014 assessment.

The case manager also outlined the opinion that based on the January 8, 2014 call-in assessment, the report of dizziness or vertigo was not supported by any objective clinical findings and that the presence of vertigo or dizziness one year after the injury could not be medically accounted for. On February 25, 2014, the worker advisor appealed the decision to Review Office.

In a submission to Review Office dated April 2, 2014, the employer's representative indicated that they agreed with the WCB that the worker sustained a soft tissue injury to her head and neck on December 3, 2012 and that the diagnosis of post concussive syndrome was not medically supported as there was no confirmed concussion following the accident. Therefore the worker's ongoing headaches, dizziness and other vestibular symptoms were not related to her workplace accident.

In a decision dated May 8, 2014, Review Office determined that there was no entitlement to benefits beyond November 4, 2013 as it was unable to establish a causal relationship between the diagnosis of a concussion and the December 3, 2012 accident. Review Office's decision was based on the medical opinion provided by the WCB medical advisor following the January 8, 2014 call-in examination.

On June 24, 2014, the Worker Advisor Office provided Review Office with a report from the family physician dated June 10, 2014 to support that "there is an ongoing secondary injury which was to the neck that arose from the workplace accident." The worker advisor noted that the WCB accepted that the workplace accident caused injuries to the head and a right-sided soft tissue injury to the neck but the focus was on a diagnosis of a concussion. The worker advisor stated that the family physician confirmed that a neck strain can mimic the symptoms of a concussion and that the April 30, 2013 physiotherapy report identified an element of peripheral cervical vertigo. The family physician also confirmed that the worker's ongoing treatments for the neck have been "so effective, cervical vertigo was in fact the underlying cause." The worker advisor also referred to a January 15, 2013 physiotherapy report which noted that the worker's right sternocleidomastoid muscle was a possible cause for the worker's dizziness.

In a September 16, 2014 decision, the worker was advised that the WCB was unable to establish that her right shoulder hematoma occurred at the time of the compensable accident and that no responsibility could be accepted for any treatment or time loss in this respect.

In response to the worker advisor's submission of June 24, 2014, Review Office stated on September 26, 2014:

"The Review Office finds your symptoms may have been compatible with a strain/sprain to the sternocleidomastoid muscle in proximity to the compensable injury; however, we are not able to account for your ongoing difficulties beyond November 4, 2013. We noted that during the January 8, 2014 examination at the WCB you demonstrated essentially full range of motion, normal resisted movements and a normal upper extremity neurological examination, and had negative Spurling's for radicular pain."

On November 3, 2014, the Worker Advisor Office asked Review Office to reconsider its decision dated May 8, 2014 based on a report from the treating neurologist dated August 27, 2014 and a letter from a co-worker who observed that the worker appearing dazed when she came out of the freezer at the time of the accident. The worker advisor stated: This new evidence confirms an element of confusion at the time of the accident which counters (WCB medical advisor's) opinion that there was no disorientation, no confusion or slowed thinking, therefore no concussion. [The treating neurologist], a specialist in neurology, has consistently supported that [the worker] did suffer a concussion and in his report of August 27, 2014 continues to support this diagnosis along with his rationale..."

On January 22, 2015, Review Office stated that it could not find the worker's symptoms met the characteristics of a concussion as noted by the WCB medical consultant. On January 23, 2015, the worker advisor appealed 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 an injury arising from a December 3, 2012 accident. She is seeking wage loss benefits after November 24, 2013.

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) of the Act provides that the WCB "...may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

Worker Position

The worker was represented by a worker advisor who made an oral submission on behalf of the worker.

The worker advisor submitted that the evidence supports a finding that the worker sustained a concussion in the accident and that the worker is entitled to benefits after November 4, 2013. She noted:

• the mechanism of injury described by the worker, being hit on the head by a heavy box, is capable of causing a concussion
• the worker was confused and disoriented immediately after the incident
• she suffered headaches and vomiting shortly after the incident

Regarding medical support for the worker's position, the worker advisor relied upon the opinions of:

• the first physician who saw the worker immediately after the incident and diagnosed a mild concussion.
• the treating physician who opined that the worker suffered a concussion
• the neurologist who also opined that the worker sustained post traumatic syndrome which he said is the same as post concussion syndrome.

The worker advisor noted that the treating physician and the neurologist disagreed with the opinion of the WCB medical advisor.

She submitted that in considering the evidence as a whole, the conclusion is that the worker had a concussion.

The worker answered questions from her representative and the panel. The worker described the workspace, her duties at the time of the accident, and the accident. She said that a heavy box of frozen meat fell and hit her in the middle of the head, then dropped onto her shoulder. The accident broke her eye glasses and bruised her shoulder. She also described the medical treatment she had received.

The worker advised that she has not had any treatment since 2014. She has returned to work.

Employer Position

The employer was represented by an advocate who made an oral submission on behalf of the employer. The representative submitted that the WCB decision was correct. She said that the preponderance of medical evidence supports the conclusion that there was not a concussion. She agreed with the opinion of the WCB medical advisor who based her opinion on the entire file. She noted there was no evidence of disruption of brain function and a normal CT scan of the brain.

The representative referred to the accident as a minor incident and was not in keeping with a significant force to the brain, only a sprain/strain.

Analysis

The worker was injured in a workplace accident on December 3, 2012. She submits that due to the workplace injury she was not able to return to work on November 4, 2013. For the worker's appeal to be approved, the panel must find that the worker continued to sustain a loss of earning capacity as a result of this accident after November 4, 2013. The panel was not able to make this finding.

The panel finds, on a balance of probabilities, that the worker did not sustain a loss of earning capacity after November 4, 2013 as a result of the workplace injury. In making this decision, the panel attaches significant weight to the opinion and analysis of the WCB medical advisor who examined the worker on January 8, 2014. The panel notes that the WCB medical advisor found:

Opinion on file was that the current presentation could not be medically accounted for in relation to the compensable injury. Information obtained from the call-in examination does not change that opinion. The opinion is supported by information provided in the Healthcare Service Request completed on October 18, 2013. There was no new medical information supplied during a call-in examination that supports the need to change that opinion. I will detail that opinion considering the family physician and neurologist's recent reports.

Essentially, the family physician and neurologist are supporting that the worker's current presentation is related to post-concussion syndrome which is related to her workplace injury. The worker does not meet the criteria (based on review of all current literature on concussion) for a diagnosis of concussion. The criteria state that there should be a mechanism of injury that applies force to the brain:

· This worker had a mechanism of injury where there was force applied to her head. While there was force sufficient enough to cause a head and neck injury, this amount of force would not be expected to cause a brain injury.

The second diagnostic criteria to confirm a concussion is an immediate disruption in brain function. This would be manifested by an alteration in mental state, amnesia, or impairment of physical function:

· The worker advises that after the box hit her she fell to ground, was not unconscious, had no impairment in mental state, can completely recall all of the events immediately before and after the injury, and was able to crawl out of the freezer. So she does not have any evidence that there was immediate manifestation of a brain injury. She reported symptoms of dizziness and vomiting approximately one hour later when in the walk-in clinic. The presence of symptoms even soon after the injury cannot be used to support the diagnosis of concussion in the absence of meeting the other criteria.

Both the neurologist and family physician are arguing that there does not have to be loss of consciousness in order to confirm the diagnosis of a concussion. This is absolutely true, but there does have to be some impairment that supports immediate manifestation of brain dysfunction. None has been reported in this case despite attempting to get that information from the worker in multiple ways.

The neurologist notes that post traumatic and post concussion can be used interchangeably. Current literature clearly shows that you can have trauma to the head and neck area without concussion.

The initial diagnosis related to this compensable injury would therefore be a head and neck injury. There was no evidence of any structural abnormality. When seen initially, the only clinical finding documented was a normal neurological examination. When seen later, there was some reduction in cervical spine range of motion with tenderness. This supports the diagnosis of non-specific pain since those are nonspecific findings that do not support the presence of a structural abnormality.

Non-specific pain that is related to a traumatic incident follows a fairly predictable natural history. Most people will have worsening symptoms over the first few days, followed by gradual improvement. When there is no confirmation of a structural abnormality, full recovery is expected and will typically take place in six to eight weeks (length of symptoms is generally proportional to the force of the injury). So, the presence of ongoing neck pain over a year later cannot be medically accounted for in relation to the compensable injury. This is supported by the benign nature of the clinical findings during today's examination with essentially full range of motion and normal resisted movements. She had negative Spurling's for radicular pain and normal upper extremity neurological examination other than some impaired sensation down the entire right arm, which is not consistent with a nerve root injury. Her tenderness was not localized over a specific structure. She reported it clearly to be on the right side of the scalp and not the left side. That is not consistent with an anatomic distribution.

Her neurologic exam revealed inconsistencies, such that, she was unable to walk without holding the wall when accompanied to the exam room, but she was able to walk without holding onto anything in the exam room. She was able to bend over and squat without requiring assistance to get back up. She leaned to the right with Romberg and tandem walking, yet had abnormal jerking movements. She did not have any nystagmus either spontaneously or with Hallpike. So her report of dizziness or vertigo is not supported by any objective clinical findings. Furthermore, the presence of vertigo or dizziness a year after this injury cannot be medically accounted on the basis of any other diagnosis.

To summarize, the worker's current presentation cannot be medically accounted in relation to the compensable injury. She has symptoms, but no clinical findings to support a specific diagnosis. Since her presentation cannot be medically accounted for in relation to the compensable injury, it is not for WCB to determine the diagnosis or treatment, however, it is noted that the symptoms of post-concussion syndrome often overlap with other conditions and those symptoms are also common in the normal population. So it is more likely that her symptoms are related to something else and not a non-concussive force mechanism of injury from over one year ago.

The panel accept this opinion and find that the worker did not sustain a concussion in the workplace accident but rather a sprain/strain injury to her neck. It is consistent with the panel's careful review of the mechanism of injury at the hearing with the worker.

The panel considered the opinions of the treating physician and the neurologist but attaches greater weight to the WCB medical advisor's opinion which provides a more thorough review of the various symptoms and their onset. The panel notes that on November 8, 2013, the neurologist prescribed treatment for a vestibular injury although commenting that the worker suffers from post traumatic syndrome. The panel notes there is little information or clinical or diagnostic findings in the neurologist's report to support the finding of a concussion and post- concussion syndrome.

In conclusion the panel finds that the worker is not entitled to WCB benefits after November 4, 2013. The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 5th day of June, 2015