The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that she no longer had a loss of earning capacity beyond February 5, 2015 withrespect to her compensable injury of July 19, 2010.  A hearing was held on July 16, 2015 toconsider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits afterFebruary 5, 2015.

Decision

That the worker is not entitled to benefits after February5, 2015.

Decision: Unanimous

Background

On July 19, 2010, the worker injured her head, neck and right knee when an overhead pipe containing compressed air failed, falling and striking her head. The claim for compensation was accepted and benefits and services were paid to the worker. The compensable diagnoses included post concussive syndrome and non-specific neck pain.

On November 27, 2012, the worker's case was the subject of an appeal panel hearing to determine several issues related to the worker's entitlement to wage loss benefits. The appeal panel ultimately determined that the worker was entitled to further wage loss benefits beyond March 26, 2012. Please see Decision No. 13/13 dated January 25, 2013 for further details.

On February 1, 2013, the worker spoke with a WCB case manager stating that she had not recovered from her injury and was still experiencing dizzy spells, vomiting and pain.

Medical reports in 2013 showed that the worker attended her family physician for chronic neck and head pain and was seen by a pain specialist for medial branch block treatments. In a progress report for an examination on September 27, 2013, the specialist reported that the worker was awaiting a neurotomy procedure and that she was currently in severe pain.

On October 17, 2013, a neurologist reported that the worker had a history of chronic post traumatic headaches which were likely migrainous in origin and that the worker was an excellent candidate for Botox.

In a report dated November 18, 2013, the pain clinic specialist reported that the worker presented with bilateral neck pain and headaches that was believed to be post concussion syndrome headaches and a differential diagnosis was outlined of myofascial pain.

On November 27, 2013, the worker was seen at the WCB offices for a call-in examination. The medical advisor stated: "She had a mechanism of injury that caused blunt force trauma to the back of her head so it could cause a head and neck injury, but it was not likely of sufficient force to cause a brain injury...The worker did report being dazed, but that may not be enough to confirm a diagnosis of concussion. The worker later had symptoms of headache, dizziness and tinnitus, but the presence of those symptoms sometime after a blow to the head would not confirm a diagnosis of concussion in the absence of the other criteria." The medical advisor further commented that the medical findings at this examination were more in keeping with a non-physical source to her symptoms.

In January 2014, the treating physician asked the WCB to approve Botox injections for the worker to treat chronic headaches that were likely permanent.

On February 11, 2014, a WCB medical advisor noted that the worker completed a Neck Pain Disability Index form and that she scored 70% which indicated that her pain affected all aspects of her life at home and at work. A trial of Botox injections was recommended which was accepted as a WCB responsibility.

Subsequently, the worker was treated with Botox injections and continued to attending the pain clinic for neck, shoulder pain and headaches. On September 22, 2014, the pain clinic physician reported that the worker did not receive any benefit from the injections of Botox for her chronic headaches. The physician indicated that there was no change to his previous diagnosis of facet arthropathy at C2-3 following the workplace related injury. He said there may be a component of a traumatic concussion syndrome as was previously prescribed.

On November 10, 2014, a WCB medical advisor stated that the worker recently saw a neurologist and he documented a normal neurological exam with the only positive finding being tenderness of the scalp. This presentation would not be expected to be associated with total disability. The medical advisor further stated:

...video surveillance of the worker was performed over multiple days. She was noted to be doing normal activity such as driving and being a passenger in a vehicle, going into a dental clinic, going into stores, walking the dog, doing some light yard work, going to a restaurant/bar, etc. During these times, she was noted to move fluidly and there was no observable limitation in range of motion or function.

It should specifically be noted that she reports intolerance to noise, yet she remained in a restaurant/bar for almost 4 hours. During this time she demonstrated no signs of distress. It was noted that there were approximately 20 other patrons in the establishment, so there would have been a fair level of noise.

In a further memo dated November 26, 2014, the above WCB medical advisor was asked to review the file information and to comment on the worker's medical status in relation to the compensable injury. On December 5, 2014, the medical advisor referred to medical reports on file from July 4, 2012 up to November 13, 2014 and indicated there were no findings to substantiate the worker's ongoing complaints.

In a decision dated January 29, 2015, the worker was advised by the WCB that she was not entitled to wage loss benefits beyond February 5, 2015 as it was felt that she had recovered from the effects of her compensable injury. The decision was based on the incident description, diagnosis, duration of time since the compensable injury, normal medical tests, the lack of medical evidence to support the worker's complaints, surveillance evidence and the WCB medical advisor opinion of December 5, 2014. On February 3, 2015, the worker appealed the decision to Review Office.

On March 19, 2015, Review Office determined there was no entitlement to benefits beyond February 5, 2015 as the evidence supported that the worker's ongoing loss of earning capacity and need for medical aid was not related to the effects of the July 19, 2010 workplace injuries.

Review Office accepted the WCB medical opinion of November 10, 2010 that the worker sustained an extremely minor head injury and there was no evidence of a significant concussive quality. It accepted the WCB medical opinion of January 2012 that the compensable diagnosis was non-specific neck pain based on the finding of loss of range of motion and tenderness in the neck. Review Office referred to the November 27, 2013 WCB medical opinion and the opinion of the treating neurologist of October 31, 2014 regarding normal neurological examination findings. Review Office referred to video surveillance and the WCB medical opinion of February 6, 2015 that the current diagnosis remained non-specific head and neck pain. Based on the compensable diagnosis, the time that elapsed since the accident and the absence of clinical findings, it found insufficient evidence that restrictions in relation to the compensable injury were required and also there was no longer a need for medical treatment. On March 25, 2015, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

In a report dated April 16, 2015, the pain clinic physician stated that post-concussion syndrome can be disabling for many years, if not a lifetime. The specialist noted that it was clear that the worker had an injury related to her workplace and that she suffered with unremitting pain despite all medical therapy as well as injection therapy.

Reasons

Applicable Legislation

 

The Appeal Commission and itspanels are bound by The Workers Compensation Act (the"Act"), regulations and policies of the Board of Directors.

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 earningcapacity..." Subsection 39(2) of the Act provides that the WCB will paywage loss benefits until such a time as the worker's loss of earning capacityends, or the worker attains the age of 65. Subsection 27(1) provides thatmedical aid will be paid by the WCB for so long as is necessary to cure andprovide relief from the injury.

 

The Worker'sposition:

 

The worker was self-represented at the hearing. Sheindicated that she is still stuck and receiving medical treatment as she is ina lot of pain. She would give anything to be better. She described her currentcondition, with particular focus on the pressure she has in the back of herhead, and on how it affects her daily life.

 

With the assistance from questioning by the panel, theworker provided an update on who is currently treating her. She is seeing herattending physician regularly, and her primary care for her head issues isbeing handled by a pain specialist. She saw a neurologist in October 2014 andMarch 2015 who gave her bilateral occipital nerve injections that provided twoweeks of relief. This treatment is now being continued at the pain clinic byanother specialist. She had a third injection there in June 2015, and willcontinue to see him regularly.

 

On questioning, the worker acknowledged that nothing is reallyhelping. She is getting at most 1-2 weeks of relief from the various treatmentsprovided, and some (like Botox) have provided no relief at all. In her view,there is no clear or obvious diagnosis that she could point to outside ofpost-concussion syndrome.

 

The worker was also asked to describe the accident, and didso. She indicated, however, that she had memory issues because of the years ofpain and the medications that she had been on for some time.

 

The worker also advised the panel about her ongoinginability to work. She was also asked to comment on the surveillance video thathad been undertaken. She indicated that the surveillance video was flawed, asthere was a period where she was actually at a dentist's office while the videowas showing her to be elsewhere. She had sent a letter from the dentist to theAppeal Commission prior to the hearing that confirmed her appointment dates.The worker also advised that she was wearing ear plugs when she was at therestaurant/bar. They were custom made for her 15 years ago when she worked inconstruction.

 

The Employer'sPosition

 

The employer did not participate in the appeal.

 

Analysis:

 

The worker is seeking to have benefits paid beyond February5, 2015 with respect to her July 19, 2010 workplace accident. For the worker tobe successful on her appeal, the panel would have to find, on a balance ofprobabilities, that her ongoing medical issues are causally related to hercompensable injury and that she had not recovered from the effects of heraccident. After reviewing all the evidence on the file and what was presentedat the hearing, the panel was unable to make these findings.

 

A preliminary challenge facing the panel has been theinterpretation by the WCB of the earlier Appeal Commission Decision 13/13,which has essentially kept the worker's claim active for an extended period.The panel has reviewed that decision carefully, as it had the potential tolimit our decision-making capacity in the case at hand. In our review of thatdecision, the panel at that time was asked specifically to look at wage lossrequests for a list of specific days, in a claim that was active with the WCB.The panel at that time was not asked to address, nor did Decision 13/13 speakto, the issues of what specific medical diagnoses were in play, which werecompensable, or whether the worker had recovered from the effects of thoseinjuries.

 

In particular, that decision made no findings as to whetherthe worker had a concussion or post-concussion syndrome or a significant headinjury. Those conditions were not under appeal and were simply a backdropagainst which specific wage loss entitlements (to attend medical treatments andthe like) were considered. It appears, however, that the WCB subsequentlyinterpreted what we find to be a narrow Appeal Commission decision more broadlyto presume that the Appeal Commission had formally accepted the diagnosis ofpost-concussion syndrome or at the very least an ongoing compensable injuryinto 2012 (the period in which various days of wage loss benefits were beingsought). This interpretation has had positive consequences (allowing forextended investigations of the worker's medical conditions and the payment ofbenefits) and negative consequences (for example, adjudicators and medical advisorsfeeling their hands were tied). We find that we are not constrained in any wayby Appeal Commission Decision 13/13 from considering the nature and extent ofthe worker's original injury in July 2010 and consequently what benefits flowfrom it after February 5, 2015.

 

In dealing with the issue at hand, the panel notes that theworker is now five years beyond the date of her workplace accident, and hasbeen getting a significant number of different treatments  from an array of medical specialists. Multiplediagnoses have been proposed and ultimately dismissed as being the cause of theworker's pain complaints, because specific treatments for those diagnoses havebeen tried and failed to provide sustained relief.

 

All these complaints are presented against the history ofbeing struck on her head by a falling pipe in July 2010 and the worker'scurrent position that her problems are ongoing and related to that incident.The panel notes that because of her ongoing complaints, a diagnosis ofpost-concussion syndrome was proposed and eventually accepted by the WCB withbenefits paid out on the basis of that diagnosis while the worker wasinvestigated by a variety of specialists to deal with her complaints. Thiscontinued until the WCB reviewed the matter again in 2015 and made decisionsthat the diagnosis of post-concussion syndrome was not supported and that herother medical conditions were either not related or had resolved. So, the panelis faced with the question: What was the original compensable diagnosis, howlong did it last, and are any of the worker's current or ongoing medical issuesrelated to her July 19, 2010 workplace accident?

 

Dealing firstly with the compensable injury itself, thepanel notes that the diagnosis of concussion (and the later diagnosis ofpost-concussion syndrome) was accepted by the WCB based on the worker's historyto the WCB of her blacking out, vomiting, and confusion at the time of theincident. Since the diagnosis of post-concussion syndrome and especially acondition so severe that is causing problems five years post-injury is assertedto be the continuing cause of the worker's problems, the panel has firstexamined whether the worker in fact had a concussion or a significanthead/brain injury when she was injured on July 19, 2010.

 

At the hearing, the worker was questioned about whathappened on the date of her injury. She provided some information regarding heraccident, but indicated that her memory was poor because of the number of yearsthat passed, her ongoing pain over those years and the medications that she hadbeen on. The panel also noted that the worker's descriptions at the hearingwere vague and contained discrepancies and gaps from what was originallyreported at the time of the accident, which is consistent with the worker'sconcerns over the accuracy of her recollections. The panel therefore focusedon, and placed greater weight on, the contemporaneous information that wasplaced on the file closer to the time of the worker's accident.

To assess the nature and severity of the worker's injuries,the panel has examined the early reports and histories that were provided bythe worker to the WCB and to other health care professionals (including hertreating physicians, specialists, the ambulance crew), as well as the evidenceof her co-workers regarding their knowledge of the incident and what they sawafterwards. We note that this evidence was also reviewed by two WCB medicaladvisors within the first months of the claim. In our review of the evidence onfile, it is apparent that different histories were provided by the worker, evenat the outset of the claim, and that varying medical opinions on the file havebeen strongly influenced by the histories provided by the worker (or repeatedby her treating physicians) and her reported complaints, even if the clinicaland diagnostic tests did not correlate to those complaints.

 

The worker's attending physician, the day following theaccident, for example, provided a diagnosis of contusion/head/neck/loss ofconsciousness, with subjective complaints of headaches and neck ache. A similarhistory "that she screamed and passed out for a few seconds" wasprovided to a neurologist a week later on July 26, 2010. However,notwithstanding her stated history of passing out three times in the week priorto his examination, the neurologist notes that CT scans were normal and hiscomplete neurological examination was normal, as well as other tests includingfunduscopy, optic disc, external ocular movements and visual fields all being intact.

 

A WCB medical advisor reviewed the file on August 16, 2010and indicated that "it would seem that the worker had a concussion. Shewas struck in the back of the head and likely had a loss of consciousness. CTwas normal so there was no evidence of any more severe brain injury... medicalfindings to support the dx of post-concussion syndrome are the worker's ongoingcomplaints of disorientation, difficulty with word finding, etc." Thepanel notes, however, in a call-in examination on August 26, 2010, the medicaladvisor indicated that the worker's neurological examination was actuallynormal, yet she accepted a diagnosis of post-concussion syndrome based only onthe worker's reports of headache, dizziness, neck pain, vision and hearingchanges and loss of balance following a concussion type injury.

 

The worker had a psychological call-in examination onNovember 10, 2010, by a WCB psychologist advisor who has a known expertise inthe area of concussions/post-concussion syndrome. He performed a neuropsychologicalreview and also sought additional documentation from around the date of injury,including the ambulance report and triage documentation from the hospital towhich she was taken.  He undertook acareful analysis of the evidence against the known criteria for concussion andpost-concussion syndrome, and interviewed the worker at length.

 

The panel places considerable weight on the opinionsprovided by the WCB psychological advisor, given his expertise, thethoroughness of his testing and the additional information that was availableto him at the time of his examination and report. He noted the following:

 

The ambulance documentationindicates... an air pressure hose, which came off its place in the ceiling…struck her in the head, knocking her down to the floor where she was reportedlydazed. There was no report of loss of consciousness. She ambulated to an officewhere she became nauseated and complained of a headache, and when she wasexamined by EMS staff there was no blurred vision, no paresthesias, no centralneck pain or tenderness, she was moving her head without pain, she presentedwith CWCM to all extremities, there was mild nausea at the triage, there wastearing, she stated nothing has changed and on inspection of her head there wasno hematoma, abrasion, no point tenderness, no soft areas, no contusions nor(sic), bleeding detected. She described having a dull non-radiating headache...Her Glasgow Coma Scale score was 15.  Herpupils were reactive to light. She was alert and there was no neurologicaldeterioration over the course of time...

 

...When she reached hospitaltriage, a similar description of the accident prevailed; equipment fell, hither in the back of her head, there was no loss of consciousness, she feltdazed, there was nausea, with no vomiting, there was no visual changes, she wastearful at triage, and there was no obvious swelling or injury. Vital signswere intact...and her Glasgow Coma Score 15.

 

As a result of these reports, the WCB psychological advisorconcluded that "there is no evidence that the claimant sustained a braininjury, she may have been scared and frightened, but there was no report of aneurologic injury..." Following his testing and history taking, heconcludes that "my diagnosis is that this woman sustained a extremelyminor head injury, there was no evidence that there was a significantconcussive quality to this, her symptoms seem psychologically based thereafter,particularly her description of the amnestic period..." He placedparticular weight on the consistencies of the worker's vital signs, the simplepresence of nausea, and the repeated scores on the Glasgow Coma Scale - 15 asbeing clear indications that the worker did not lose consciousness although shefelt she had done so. The panel concurs with and adopts the conclusions of theWCB psychology consultant, and finds that the worker did not suffer aconcussion or a post-concussion syndrome or a significant head injury from herwork accident of July 19, 2010.

 

The panel finds that the conclusions of the WCB psychologyconsultant are further buttressed by the ongoing negative neurological testingafter his examination and report of November 10, 2010.  In particular, the worker has had extensive investigations after that datewith neurological testing consistently showing negative findings. This includestwo later call-in examinations testing by two different WCB medical advisors in2012 and 2013, and testing performed by another neurologist on October 31,2014, at which time the worker was still presenting with a history andcomplaints of reporting headaches and dizziness since a head trauma in 2010. Aswell, the investigations and treatments provided by a number of painspecialists in the years following have also failed to identify a condition thatcan be reasonably related to post-concussion syndrome.

 

The worker was, however, injured on July 19, 2010. The paneltherefore had to consider what the worker's compensable injury was. In thisregard, the panel notes that the worker was examined by a WCB chiropracticadvisor on March 26, 2012. The worker described the primary location of pain asbeing at the base of her skull bilaterally, headaches that led her to becomedisoriented and dizzy, and pressure in her head that could become so severethat she feels nauseated. These symptoms are similar to how the workerdescribed her current symptoms at the hearing. After his examination, the WCBchiropractic advisor concluded that "the probable diagnosis isnon-specific non-radicular spine (sprain/strain). It is difficult to accountfor the claimant's high level of pain in consideration of the diagnosis and thetime since the injury. There may be an element of psychological overlay, asnoted by [the WCB psychology advisor] in his call-in notes." The panelconcurs with this assessment, and finds that the worker's compensable injurywas a non-specific non-radicular spine sprain/strain.

 

It is clear, however, from the worker's submission and fromthe evidence on the file that the worker and/or her treating physicians haveasserted that an array of ongoing medical conditions or symptoms are related tothe worker's original workplace injury. The panel has considered these medicalissues and has found that they are not, on a balance of probabilities, relatedto the compensable injury:

 

• Subsequent to the March 26, 2012 call-in examination, the worker continued to complain of headaches, pressure to the back of her head and was sent to a number of medical specialists for further investigations and treatment. This included pain clinic specialists who provided medial branch neurotomies which were unsuccessful, Botox injections for possible post-concussive migrainous headaches which were unsuccessful, and treatment aimed at a right C2-C3 facet arthropathy and/or an identified anterolisthesis, again unsuccessfully treated. As well, the worker was seen on October 31, 2014 by a neurologist who provided a complete neurological testing, with full knowledge of the worker's reported history to him of "headaches & dizziness since head trauma in 2010." His clinical findings were "Neurological Exam = Normal except tender scalp at greater occipital nerve." 

 

• The panel notes that many of the specialists, including the worker's treating physician, have formed their opinions based on the assumption of a significant head injury including loss of consciousness, concussion and post-concussion syndrome, which are at variance to our findings. To that extent, the panel places less weight on those reports, and in particular the proposed linkages of some of the new diagnoses to the 2010 work injury. Specifically, in the absence of a significant head injury, the panel cannot find a causal connection between the work injury and the proposed diagnoses of medial branch or occipital nerve injuries, post-concussive migrainous headaches, myofascial pain syndrome, facet arthropathy or anterolisthesis.

 

• With respect to the facet arthropathy and anterolisthesis conditions in particular, the panel finds that the mechanism of injury does not support the presence of a high impact trauma to have caused such an injury nor is there diagnostic or other medical evidence to support the presence in 2010 of such a structural injury to the worker's cervical spine.

 

• The worker has also identified a number of other conditions that she relates to her work place. These include chest tightness and problems into her arms, extreme noise sensitivity, and swelling to her face and head. The panel finds again that the medical evidence does not establish either clear diagnoses for these conditions or causal links to what we have found to be a cervical sprain/strain injury and not a significant head injury.

 

• The panel notes that many of these proposed diagnoses have been ruled out by the specialists themselves given that the worker did not respond to specific treatments aimed at those diagnoses. The panel notes and adopts the conclusions reached by a WCB medical advisor who re-examined the worker in a call-in examination on November 27, 2013. She retracted her earlier August 26, 2010 findings of a post-concussion syndrome given the information later placed on the file. She then states that:

 

The medical findings duringtoday's examination are not supportive of a specific structural diagnosis. Shehad pain and loss of range of motion in all planes about the neck. She couldnot offer counter resistance to resisted cervical movements. She had pressurewhen doing Spurling's. She had widespread tenderness. She had impaired balance.She could not squat. Neurological tenderness was otherwise normal with normalmotor, sensation and cranial nerves.

 

The worker's presentation seemsmore in keeping with a non-physical source to her symptoms. This would likelybe considered a psychological pain disorder. This is often associated withdepressed mood and her affect did seem quite flat today...

 

As for the duration or severity of the cervical spinestrain/sprain which the panel has accepted as the compensable injury, the panelnotes that the worker was sent by the WCB chiropractic advisor forphysiotherapy treatment to improve her spinal mobility and strength, and todeal with chronic pain and the principles of hurt vs harm. Some improvementswere noted by the physiotherapist by the time her treatments ended in 2012.

 

As to the worker's entitlement to benefits as of February 5,2015, the same WCB medical advisor who re-examined the worker on November 27,2013 undertook a detailed documented review on December 5, 2014 of all themedical evidence on the file from 2012 and forward, as well as surveillance videoof the worker that was placed on the file in late 2014. She concludes herassessment as follows:

 

To summarize these medicalreports.....through seeing two neurologists, a family doctor, multiple PainClinic physicians and the WCB Medical Advisor, the only consistent findingdocumented  has been tenderness. Therehas been a normal neurological exam on multiple assessments. So there are noobjective findings to substantiate her ongoing complaints.

 

The only findings that wouldcontradict the worker's complaints would be the surveillance video. Shepresents to doctors with pain limited ROM, yet she is observed to move her neckfully and fluidly on video.

 

The panel has reviewed the surveillance video and themedical information on the file and agrees with and adopts this assessment.

 

The panel finds, on a balance of probabilities, that theworker suffered a cervical strain/sprain as a result of her compensableaccident on July 19, 2010, and that it had resolved prior to thediscontinuation of her benefits in February 2015. On the basis of thesefindings, we find that the worker's ongoing medical issues after February 5,2015 are not related to the July 19, 2010 workplace accident and thereforethere is no entitlement to further benefits after that date. The worker'sappeal is denied.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 19th day of August, 2015