Decision #150/15 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by Review Officeof the Workers Compensation Board("WCB") that his seizures and related condition are not related tothe workplace accident of November 20, 2012. A hearing was held on October 29, 2015 to consider the worker'sappeal.
Issue
Whether or not the worker's seizures and related conditionare a consequence of the November 20, 2012 compensable accident.
Decision
That the worker's seizures and related condition are not aconsequence of the November 20, 2012 compensable accident.
Decision: Unanimous
Background
On November 20, 2012, the worker injured his left ankle when he fell eight feet down to the ground while working on a roof. His claim for compensation was accepted and benefits were paid. The compensable diagnosis was a left lateral dome osteochondral fracture.
In a memo to file dated February 26, 2013, a WCB adjudicator documented information she obtained from the worker. The worker stated that he blacked out on February 15, 2013, and was taken to hospital by ambulance. The worker said the doctors did not know why he blacked out, that it could be related to a seizure or from certain medication. When asked what medication he was taking, the worker said he was not taking any at the moment but was at the time of his injury.
On June 27, 2013, the worker advised the WCB that his ankle surgery scheduled for June 26, 2013 was postponed, as he blacked out the week before and was going for tests in September to find out the cause.
Following receipt of medical information which included a CT scan of the brain taken February 15, 2013, the worker was advised on October 1, 2013 that there was no medical information to support that his seizures were caused by the November 20, 2012 workplace accident. The WCB decision was based on the findings that the worker did not lose consciousness or suffer a head injury at the time of the accident, that he had a history of similar episodes (seizures) dating back two years, and that complications were noted on the CT scan of the brain.
By e-mail correspondence sent February 12, 2014, the worker indicated that the WCB was wrong when it stated that there was no loss of consciousness and no head injury. He stated:
When I fell on my feet I lost consciousness. I don't know for how long. When I lost consciousness and I woke up, I was laying on an icy and rocky ground. I didn't [have] any pain or headache at that time because I had the pain in my left ankle. So I don't know if I hit my head on some thing, when I lost consciousness.
I was talking to my doctor that in the report I got from you, it says that I had similar episodes (seizures) dating 2 years back [from] the day of that accident. It's not true, because I NEVER had a seizure before! What I had at that time (2 year back) was a stomach poisoning, I got from eating medium raw [steak] when I was working up north.
In a report dated February 12, 2014, the treating neurologist commented as follows in relation to the worker's seizures:
I believe that his seizure disorder is unrelated to the fall, which had occurred on November 20, 2012. His seizure disorder is most likely related to remote encephalitis infection during early childhood. He had been non-compliant with his medication since the summer of 2013, however he is now back on…and is taking his medication. He has had no further seizures since December 10.
In a memo to file dated October 1, 2014, a WCB case manager stated that she met with the worker and his wife to discuss the claim. The worker stated that he was never being treated for, nor did he ever have, a seizure prior to the workplace injury. When he fell off the roof of the house, he landed on his feet. He recalled that when he went to walk to his truck, he felt weak in his legs and fainted. When he woke up, he was lying on his back. It was immediately after he went to have an MRI for his left ankle in March 2013 that he had his first seizure. The worker said that he was treated for meningitis as a young child, but never for seizures.
On October 3, 2014, a WCB medical advisor was asked to review the worker's file and provide a medical opinion as to whether the worker's current seizures/headaches were medically accounted for in relation to the workplace injury. In his response dated October 4, 2014, the medical advisor concluded that it appeared unlikely that the noted seizures and headaches were causally related to the effects of the November 20, 2012 fall.
On October 16, 2014, the worker was advised that the medical information did not support a causal relationship between the diagnosis of seizures and headaches and the workplace injury of November 20, 2012. The case manager referred to the following information as having been considered in reaching that decision:
- Injury sustained on November 20, 2012 when the worker fell from a ladder resulting in a fracture to his left foot.
- The worker attended for treatment at [a hospital] which documented the absence of a head injury or loss of consciousness from the fall.
- A CT scan of February 2013 and an EEG of October 2013 indicate focal abnormalities in the left temporal region which are thought to represent an arachnoid cyst. The presence of an arachnoid cyst is known to be associated with the occurrence of seizures.
- A WCB Medical Advisor has advised that an arachnoid cyst is generally congenital and would not be secondary to a fall where no injury to the head has occurred.
- The worker's treating neurologist advised in his February 12, 2014 report that the seizure disorder is unrelated to the fall of November 20, 2012 and that it is most likely related to remote encephalitis infection during early childhood.
On October 17, 2014, the worker appealed the above decision to Review Office.
On January 15, 2015, Review Office determined that the worker's seizures and related condition were not compensable. Review Office accepted the medical opinion of the WCB's medical consultant that the worker's seizures and headaches were not related to the effects of his workplace accident. Review Office referred to the worker's email of February 12, 2014 where he stated that he lost consciousness when he fell off the roof and awoke on icy and rocky ground, and was unsure if he hit his head at that time. Review Office found that the statement was not supported by the evidence on file, noting no mention of this telling of events in the accident report, early discussions with the WCB claim staff, or the initial hospital report. On April 19, 2015, the worker appealed Review Office's decision to the Appeal Commission and an oral 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.
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.
Worker's Position
The worker was self-represented, and was accompanied at the hearing by his brother-in-law, his brother and his mother.
It was the worker's position that his seizures are clearly related to his workplace accident. He submitted that such a condition does not simply appear on its own. There must be something that triggers it.
The worker provided details of the accident on November 20, 2012. He said that he slid off the roof and fell about eight feet, landing on his feet on the ground. He tried to walk, but noticed that his foot was painful. He became dizzy from the pain and tried to sit down, but lost consciousness before he was all the way down. When he woke up, he was lying on his back on the ground, which was icy and rocky. It took him awhile, but he managed to hop to the car, which was probably about 100 metres away, and drive to the employer's shop. Someone then drove him to the hospital, about 20 to 30 kilometres away. He remembered most of the pain having been in his foot at that time. He said that he told them at the hospital that he lost consciousness at the accident site, and did not know why that is not mentioned in the hospital report.
The worker submitted that the accident was at least one of the triggers for the seizures. He said that it was possible that the encephalitis which he had as a child could also be involved, but that he "knew for a fact" that the accident affected his seizures because the condition does not suddenly happen by itself and he had never had seizures before.
In response to questions from the panel as to whether he had any medical support for an opinion which was different from that of the treating neurologist, the worker said that at one point, the treating neurologist had agreed with him that it made sense that the seizures were triggered or more easily triggered because of his having had encephalitis, and had said that he would look into this, but then he wrote the letter of February 12, 2014.
Employer's Position
The employer was represented at the hearing by the president of the company, who advised that he was there to support and assist the worker.
The employer's position was similar to that of the worker. The employer representative submitted that the worker's seizures and other complications, which started right after the accident, were directly caused by the accident. He stated that the worker reported the accident directly to him right away. He said that the worker was making sense at the time, but appeared to be confused; that his thoughts were elsewhere, and he was in a lot of pain. The worker did mention that he had fallen down and blacked out, but was unable to say how long he was unconscious. The employer representative suggested that if something was not recorded by the doctor or hospital, such as the fact that the worker lost consciousness, it may have been because the worker was confused or because his English is not perfect and he was unable to communicate perfectly.
The employer representative suggested that it was possible that the accident may have triggered the worker's encephalitis. Whether it did or not, given the timeline of events, it appeared clear that the accident was related to the condition that the worker is in today with his seizures.
The representative noted that the worker was probably the best worker they had ever had. He added that in his view, this was a legitimate accident where insurance should "kick in", even if it meant that they might have to pay increased premiums.
Analysis
The issue which is before the panel is whether the worker's seizures and related condition are a consequence of the November 20, 2012 compensable accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's seizures are causally related to the November 20, 2012 accident. Based on the evidence which is before us, the panel is unable to make this finding.
The panel notes that there is no real evidence of significant or acute trauma to the worker's brain or head at the time of the accident. The worker landed on his feet when he fell. The evidence indicates that he blacked out as he was trying to sit down, and woke up lying on the ground. There is no evidence, however, that he struck his head at that time.
The evidence also indicates that the worker was aware of minute details of what occurred after he fell. Those details include that the worker was able to get himself to the car and drive to the shop after the accident.
At the same time, there was no observation of a head issue by the employer. The worker reported the accident to the employer. The employer representative's evidence was that he did not notice any blood or damage to the worker's head. The worker similarly could not remember there being any bruising, or any blood or cuts to his head, although he stated that he had a "bit of a headache" later.
There was also no indication that there was any concern at the hospital that the worker had suffered a head injury. Rather, it is specifically noted on the hospital report that there was no loss of consciousness and no head injury.
The panel also notes that there is a delay of approximately three months between the accident and the manifestation of symptoms or seizures. No explanation has been provided which would account for such a delay.
The panel is further satisfied that the medical evidence does not support a finding that the worker's seizures were caused by or related to the November 20 accident.
In particular, the panel notes that the treating neurologist specifically stated, in his report of February 12, 2014, that he believes that the worker's seizure disorder is unrelated to the accident, and is most likely related to a remote encephalitis infection during early childhood.
In response to a request for a healthcare opinion as to whether seizures can be related to the compensable injury, the WCB medical adviser also stated as follows:
1) It appears unlikely that the noted seizures and headaches are causally related to the effects of the November 20, 2012 fall. That this is the case is substantiated by:
a) The initial ED [emergency department] report from [hospital] documents the absence of head injury or loss of consciousness reported associated with the fall (that resulted in the left ankle injury).
b) The CT scan of February 2013 and the EEG of October 2013 demonstrate focal abnormalities in the left temporal region thought to represent an arachnoid cyst. That anatomic abnormality is known to be associated with the occurrence of seizures; the EEG appears to suggest that the seizure occurring in February 2013 relates to the presence of the arachnoid cyst.
c) An arachnoid cyst is generally congenital and would not be secondary to a fall where no injury to the head has occurred (such as was reported in November 2012).
d) The consulting neurologist suggests that the seizures are likely secondary to a brain infection (encephalitis) that occurred when the claimant was 2 [sic] years old.
In light of the foregoing, and based on the evidence which is before us, the panel is unable to find, on a balance of probabilities, that the worker's seizures and related condition are a consequence of the November 20, 2012 compensable accident.
The worker's appeal is therefore denied.
Panel Members
L. Harrison, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Harrison - Presiding Officer
Signed at Winnipeg this 17th day of December, 2015