The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by Review Officeof the Workers Compensation Board("WCB") that she had recovered from the effects of her compensableinjury by July 31, 2014.  Ahearing was held on October 29, 2015 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefitsafter July 31, 2014.

Decision

That the worker is not entitled to wage loss benefits afterJuly 31, 2014.

Decision: Unanimous

Background

The worker filed a claim with the WCB for injury to her head, neck and left upper back when the stool she was sitting on at work collapsed and she fell backwards, striking her head on the cement floor. The date of the accident was June 19, 2014, as confirmed in the Employer Injury Report dated June 26, 2014.

In June, July and August 2014, the worker provided the WCB with additional information regarding the accident details and the nature of her symptoms prior to and following the June 19th accident.

At the request of primary adjudication, a WCB medical advisor reviewed the medical reports on the claim file and answered questions related to the worker's medical condition. She stated:

1. This 68 year old kitchen staff/cook fell back off a stool at work on June 19, 2014. She banged her head back. She was seen at ER right away where it was documented that there was no loss of consciousness. No other neurological complaints were recorded. Exam was normal. The dx [diagnosis] provided was a head injury. She later saw a family doctor who recorded symptoms of headache and dizziness. His exam was normal. The physio documented mainly pain around the head and neck. He documented loss of cervical ROM [range of motion], some weakness, and some tenderness.

The dx that best fits this presentation is a head/neck strain/sprain or non-specific non-radicular head and neck pain.

No evidence has been provided to support a dx of concussion. The worker did have a blow to the head, however there must be some immediate manifestation of disrupted brain function (loss of consciousness, altered mental state, amnesia or other neurological deficit) to support that dx. No such symptoms were documented. So the dx of concussion cannot be confirmed. Any postconcussion type presentation could not be medically accounted for in relation to this injury.

The worker has reported dizziness. This can be seen with a neck strain/sprain. This should fully resolve as the neck strain resolves. The worker did see the doctor a couple of days prior to the accident for a complaint of vertigo. So any vertigo would pre-date the accident and could not be [medically] accounted for in relation to the C/I [compensable injury].

2. A neck sprain/strain will usually be pretty sore for the first few days or week, then gradually get better. Prognosis for full recovery is excellent and should take place within about 6 weeks.

In a decision letter dated August 14, 2014, Compensation Services advised the worker that no responsibility would be accepted for any wage loss benefits beyond July 31, 2014, as it was felt that she had recovered from the June 19, 2014 workplace injury by that date. It was noted that information on file indicated that the worker was diagnosed with vertigo on June 17, 2014, prior to the June 19, 2014 workplace incident. Based on the WCB medical advisor's opinion, progress for full recovery of a head/neck sprain/strain should take place within about 6 weeks. The worker was advised that the WCB would continue to monitor her progress and physiotherapy treatment would be covered as it related to the injury. On April 24, 2015, the worker appealed the decision to Review Office.

Prior to considering the worker's appeal, Review Office requested a copy of the medical report from the treating physician dated July 31, 2014 and the chart notes from the treating physiotherapist up until October 2014, when the worker's treatment ended.

On May 12, 2015, Review Office determined that the worker was not entitled to wage loss benefits beyond July 31, 2014, noting that it had placed significant weight on the following:

• the WCB medical advisor felt that the compensable diagnosis involved strain/sprain injuries, from which recovery occurs within a short duration;
• the treating physician noted a normal neurological examination and full range of motion involving the cervical spine when he saw her on July 31, 2014, and indicated "back to work Aug 1, 2014";
• the physiotherapy chart notes beyond July 31, 2014 did not support the need for further time loss from work.

On June 15, 2015, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

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 WCB's Board of Directors.

The worker has an accepted claim for a workplace injury and is seeking benefits beyond July 31, 2014.

Subsection 4(1) of the Act provides that 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 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens. Subsection 39(2)(a) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, as determined by the board.

Worker's Position

The worker attended the hearing with her daughter, who assisted her in presenting her position and answering questions.

The worker's position was that she continues to suffer from the injuries which she sustained, and is still not fit to return to work. While her claim was accepted by the WCB for head injuries only, she also sustained neck and upper back (shoulder) injuries as a result of the accident. These injuries were mentioned in her report to the WCB, and in reports from her doctor and physiotherapist. The WCB failed, however, to acknowledge these other injuries, which have caused chronic pain and resulted in her being unable to return to work.

It was submitted that the worker's claim was approved up until July 31, 2014 based on her head injury only, and on an assumption by the WCB's medical advisor that she should be healed by that date. The fact that she had other injuries and that those injuries might hinder her going back to work was not considered, nor was the fact that she is an elder, and that injuries sustained by elders can be more serious and take longer to heal.

It was pointed out that the worker felt that she had no choice but to go back to work in August 2014, even though she was still not feeling well. She had informed her case manager at that time that she was still not feeling well enough. Two months later, the worker went on sick leave, and has not been able to return to work since then based on her injuries.

It was noted that the doctor who saw the worker around the time of her accident and in the month or so thereafter was a temporary doctor, as her regular doctor was away. It was submitted that her regular doctor, who has been treating her since then, is the one who can and should speak to her injuries and pain, and who can confirm that her condition is a result of her injuries.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether the worker is entitled to wage loss benefits after July 31, 2014. For the worker's appeal to be successful, the panel must find that the worker continued to suffer a loss of earning capacity beyond this date due to her workplace injury. After a careful review of all the evidence on file and as presented at the hearing, the panel was not able to make this finding.

The panel finds, on a balance of probabilities, that the worker had recovered from her head injury by July 31, 2014. In making this finding, the panel attaches weight to the following:

• the treating physician's chart notes from the appointment on July 31, 2014 record that the worker "fell down on June 19, 2014 with head injury … no more concerns … generally looks well", and concludes "improved head injury" and "Back to work Aug 01, 2014";
• the medical opinion from the WCB medical advisor provided August 12, 2014 concludes that the most likely diagnosis is a "head/neck strain/sprain or non-specific non-radicular head and neck pain". In response to the question as to what a reasonable recovery timeline would be, based on the most likely diagnosis, the medical advisor stated that "A neck sprain/strain will usually be pretty sore for the first few days or week, then gradually get better. Prognosis for full recovery is excellent and should take place within about 6 weeks";
• it is clear that the medical advisor was aware of the worker's age when she provided her opinion with respect to a reasonable recovery timeline, as she expressly referred to the worker's age in her opinion;
• there is no suggestion or argument that the head injury was or is still in play. Instead, the worker's appeal is focused on other injuries, specifically her difficulties with her left shoulder and arm.

The panel further finds, on a balance of probabilities, that the worker's difficulties with respect to her left shoulder and arm cannot be related back to the accident on June 19, 2014. In making this finding, the panel places significant weight on the following:

• while the areas of injury that are referred to in the Worker Incident Report are "Head, Neck, L Upper Back", the worker's early complaints are focused on her head and neck;
• there is no diagnosis of a left shoulder injury at the beginning of the claim. The compensable diagnosis is a head injury which, as indicated above, resolved by July 31, 2014;
• the Hospital Emergency Report form from the day of the accident records that the entrance complaint was "fell off stool and banged head on cement" and the diagnosis was "head injury". There is no reference in that report to the worker's shoulder or any shoulder injury;
• the worker saw the treating doctor on June 23 and July 3, 17 and 31, 2014. There is no reference to the worker's left shoulder or a shoulder injury in the treating doctor's chart notes with respect to any of those visits.

In light of the foregoing, the panel finds, on a balance of probabilities that the worker's loss of earning capacity beyond July 31, 2014 was not due to her compensable injury.

The panel appreciates that the worker has been and continues to be experiencing considerable difficulties with her left shoulder. The panel is unable to find, however, that the worker's ongoing difficulties can be related to her compensable injury.

The worker's appeal is therefore dismissed.

Panel Members

L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Harrison - Presiding Officer

Signed at Winnipeg this 16th day of December, 2015