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 wage loss benefits after October 16, 2013 as shehad recovered from her compensable injury by that date and was capable ofreturning to her pre-accident duties. A hearing was held on June 11, 2015to consider the worker's appeal.  

Issue

Whether or not the worker is entitled to wage loss benefitsafter October 16, 2013.

Decision

That the worker is not entitled to wage loss benefits afterOctober 16, 2013.

Decision: Unanimous

Background

On June 9, 2013, the worker was coming out of a garage when the garage door came down and struck her head. The worker reported injuries to her head, neck and right shoulder.

Initial medical information showed that the worker attended a chiropractor and a physiotherapist for treatment following the accident. The diagnoses rendered were a cervico-thoracic strain and acute cervical spasms and strain with possible upper cervical spine hypermobility. On June 17, 2013, the treating physician stated:

[The worker] has a minor brain concussion following her accident with the door hitting her head. Her chiropractor took her off work till he sees her again today. From my point of view, she can resume her work on that date; but he is taking care of her neck problem and I will leave him the decision about her return to work. Because of her mild concussion, her reflexes and intellectual work will be alowed (sic) down; she will require more time to do certain things.

On July 17, 2013, the worker underwent a brain CT scan and the results were reported as being negative.

On September 30, 2013, the worker was seen at the WCB's offices for a call-in assessment. The WCB medical advisor outlined his examination findings and provided rationale to support that the worker's presentation did not meet the criteria for the diagnosis of a concussion.

In a decision dated October 9, 2013, the worker was advised of the WCB's position that she had functionally recovered from the effects of her compensable injury and was capable of returning to her pre-accident duties. The worker was advised that wage loss benefits and services would end on October 16, 2013.

On March 14, 2014, a union representative, acting on the worker's behalf, provided the WCB with medical reports pertaining to a neuropsychological assessment dated January 23, 2014 and a vestibular physiotherapy assessment dated February 17, 2014. The union representative contended these reports confirm that the worker continued to have a loss of earning capacity from her compensable accident and that she was entitled to further compensation benefits.

Following consultation with the WCB's healthcare branch on March 22, 2014, the worker was advised on March 24, 2014 that no change would be made to the October 9, 2013 decision as the new medical information did not provide objective information to change the opinion provided from the call-in examination.

On May 8, 2014, the union representative appealed the October 9, 2013 and March 24, 2014 decisions to Review Office. On September 11, 2014, the employer's representative submitted to Review Office that they agreed with the adjudicative decision that the worker had recovered from the effects of her compensable injury.

In a decision dated October 15, 2014, Review Office confirmed that the worker was not entitled to wage loss benefits after October 16, 2013. After reviewing all the file evidence, Review Office found that the worker sustained soft tissue injuries involving her neck, back region of her head and right shoulder and there was no evidence of a brain injury. In making this finding, Review Office referred to the CT scan findings of July 2013, the mechanism of injury reported by the worker and the WCB medical opinions on file dated September 30 and October 2, 2013 and March 22, 2014.

Review Office stated that it did not place weight on the vestibular report as the accident description given to them by the worker was incorrect. Review Office was unable to find that the worker's inability to work was because of her cognitive deficits based on the WCB medical opinion dated March 22, 2014. On October 28, 2014, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on June 11, 2015.

Reasons

Applicable Legislation and Policy

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 time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.

Worker’s position:

The worker attended the hearing and was assisted by a union representative.

It was submitted that the evidence supports a finding that the worker sustained a concussion in the accident. It was noted:

· the mechanism of injury described by the worker, namely a garage door striking the back of her head, is capable of causing a concussion;

· the worker was unable to complete her shift on the day of the accident;

· the worker has been suffering an on-going constellation of symptoms recognized as post concussion syndrome since the accident;

· a possible diagnosis of concussion was made within days of the injury by the worker’s physician;

· a neurological impairment, namely dizziness, was identified fairly early on by the neuropsychologist, which could be caused by concussion or neck injury;

· the report of the vestibular physiotherapist provides a diagnosis of peripheral dysfunction; and

· the report of a neurologist concludes that the worker is experiencing post-concussive syndrome.

Therefore, considering the evidence as a whole, the conclusion must be that the worker has suffered a concussion from which she is experiencing on-going symptoms and is unable to return to her previous employment. She should, therefore, be entitled to on-going benefits.

Employer’s position:

The employer was represented by a WCB benefits coordinator. The employer’s supervisor also attended and gave evidence.

It was submitted on behalf of the employer that the WCB decision was correct, that the worker had recovered from the effects of her compensable injury and no further benefits should be provided. The representative classified the accident as a relatively minor incident that was more in keeping with a cervical thoracic strain injury than a concussion. Further, the preponderance of the medical evidence supported the conclusion that the worker had not sustained a concussion. There was no evidence of immediate disruption of brain function following the accident and the CT scan of the brain taken shortly after the accident was normal. It was also pointed out that the worker initially performed well in cognitive testing by her physician undertaken shortly after the accident, and did not show difficulties in the testing until approximately three months later. The employer also agreed with the opinion of the WCB medical advisor who concluded that the worker had not sustained a concussion as a result of the accident.

Analysis:

The issue before the panel is whether the worker is entitled to wage loss benefits beyond October 16, 2013. 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 from the effects of her June 9, 2013, workplace accident. For the reasons outlined below, we are unable to make that finding.

The panel finds, on a balance of probabilities, that the worker did not sustain a loss of earning capacity after October 16, 2013 as a result of a 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 September 30, 2013.

The WCB medical advisor concluded that the worker’s presentation did not meet the criteria for diagnosis of concussion. He noted that the mechanism for injury was not sufficient to cause a brain injury to the back of the head. Further, there was no evidence of immediate disruption of brain function at the time of the accident and the worker did not report any immediate impairment in consciousness or amnesia. She was able to raise the garage door, operate equipment to travel to the next site, report the incident to her employer, complete a green card, and drive home. Finally, while the worker does complain of post-concussive symptoms, the presence of such symptoms some time after the mechanism of injury cannot be used to make a diagnosis of concussion as a result of the workplace accident.

The WCB medical advisor noted that the worker’s main concern during the call-in exam was her self-reported cognitive deficits. These could not, however, be objectively verified during the examination as the worker scored 30/30 on the Mini Mental Status Exam, was able to succinctly describe the accident and her course since, and no cognitive deficits were apparent during the interview. The WCB medical advisor noted that, although cognitive deficits can be seen post-concussion, in the absence of a diagnosis of concussion, the post-concussive symptoms that the worker may be experiencing cannot be considered medically related to the compensable injury.

The WCB medical advisor observed that the worker did have some on-going complaints of non-radicular neck pain and that such complaints were consistent with the mechanism of injury. Active based treatment, including a return to work, was recommended. Although the natural history of this diagnosis was variable, improvement was normally expected within days or weeks of the accident, and a full recovery was anticipated.

The WCB’s psychological advisor concluded similarly and found that there was no evidence that the worker sustained a brain injury as a result of the accident. Specifically, he noted that there was no reported immediate disruption of mental functions following the accident. Although the worker complained of dizziness, she was not rendered unconscious, did not have peri-injury amnesia, and given her accident report, undertook purposeful behavior following the accident, including filling out accident related documentation.

The panel notes that x-rays and a CT scan completed shortly after the workplace accident showed no significant intracranial abnormality. Subsequent neuropsych testing has confirmed an absence of cognitive impairment and a CT scan taken as recently as April 2015 again showed no intracranial abnormality. Although the neuropsychologist observed the worker to be experiencing dizziness, which is a neurological impairment, the neuropsychologist noted that dizziness may be caused not only by a concussion but also by a neck injury.

The panel has considered the reports of the treating physician, the vestibular therapist’s reports and the report of the neurologist, but attaches greater weight to the opinion of the WCB medical advisor, who thoroughly reviewed the accident and history of onset of symptoms, as well as the opinion of the WCB’s psychological advisor. Those opinions conclude that the worker did not sustain a concussion in the workplace accident, but a sprain/strain injury to her neck. Although the panel accepts that the worker currently suffers from post-concussion-like symptoms, the panel does not accept that a causal relationship has been established between her current symptoms and the workplace accident of June 9, 2013.

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

Panel Members

K. Wittman, Presiding Officer
M. Bencharski, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

K. Wittman - Presiding Officer

Signed at Winnipeg this 6th day of August, 2015