The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB")that the worker was entitled to compensation benefits after March 19,2015.  A hearing was held on December7, 2015 to consider the employer's appeal.

Issue

Whether or not the worker is entitled to wageloss and medical aid benefits after March 19, 2015.

Decision

That the worker is entitled to wage loss andmedical aid benefits after March 19, 2015.

Decision: Unanimous

Background

On February 7, 2015, the worker was using a pipe to release a conveyor belt that was tied up in a chain when the pipe let go and he was struck on the left side of his face and head.

On February 9, 2015, the worker reported that he did not lose consciousness and was wearing a hard hat. The pipe was 2 inches wide and it happened very fast. He had a small cut to his forehead and a black eye. He experienced blurred vision, headache, dizziness spells and his eye was leaking.

The claim for compensation was initially accepted based on the diagnosis of a minor head injury and a possible concussion.

In February and March 2015, the employer advised the WCB that the worker was seen "driving around" and "living a normal life" while receiving wage loss benefits. The employer wondered why the worker is unable to work as his injury was minor.

On March 3, 2015, a WCB medical advisor responded to questions posed by the case manager regarding the worker's medical status in relation to the compensable injury. The medical advisor commented that the initial diagnosis was a probable head/facial contusion. Although there were various medical reports on file regarding a diagnosis of concussion, the criteria for a concussion were not met as there was no evidence of a disruption in brain function immediately following the injury. The natural history of a contusion was for resolution over a period of several days up to a couple of weeks. Given the normal CT findings of February 7, 2015 and the normal physical/neurological findings on February 24, 2015, the worker's current presentation was not related to the workplace injury and there were no further workplace restrictions.

In a decision dated March 3, 2015, the employer was advised that based on the recent WCB healthcare opinion, the worker was capable of returning to work and there was no medical reason for ongoing restrictions. The employer responded that they were ready to place the worker back onto their payroll.

On March 4, 2015, the WCB case manager advised the worker that he was considered capable of returning to work. The worker expressed disagreement with the decision as he claimed that he was still experiencing ongoing headaches and was unable to go out into the sunlight and had to stay in a dark bedroom. The worker indicated that he was going to follow his doctor's advice to stay off work until at least March 10, 2015.

On March 4, 2015, the WCB case manager advised the treating physician that based on WCB medical opinion, the criteria for a concussion diagnosis had not been met as there was no loss of consciousness. The physician agreed that the worker was not totally disabled and that the worker would be called in for a reassessment.

By letter dated March 11, 2015, the worker was advised that compensation benefits would not be paid after March 19, 2015 as the WCB was of the opinion that he had recovered from the effects of his workplace injury. The decision was based on the findings that a concussion diagnosis could not be substantiated and that he was well past the recovery norms for a head/facial contusion.

On March 12, 2015, the treating physician opined that a loss of consciousness was not required for the diagnosis of a concussion. The physician noted that on February 24, 2015, the worker complained of symptoms consistent with post concussion syndrome. He complained of left sided headache, left sided blurriness in his vision and persistent lightheadedness with problems with balance. The worker's reaction time was also impaired. When seen on March 6, the

worker's symptoms were persistent. The physician stated "at this time he is too unsteady to return to any position at his current job. I have sent him for an MRI..." On April 7, 2015, the worker appealed the WCB decision that he had recovered from the effects of his workplace injury.

In a decision dated June 1, 2015, Review Office determined that the worker was entitled to wage loss and medical aid benefits after March 19, 2015. Based on the medical opinions outlined on March 6, 2015 by the treating physician and the optometrist's findings dated March 11, 2015, Review Office found that the worker continued to experience the effects of his compensable injury beyond March 19, 2015 and was not able to return to his pre-accident duties. On June 2, 2015, the accident employer appealed Review Office's decision to the Appeal Commission and an oral 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.

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) empowers the WCB to provide such medical aid as the WCB considers.

The employer appealed the WCB decision that the worker was entitled to wage loss and medical aid benefits after March 19, 2015.

Employer Position

The employer was represented by its owner and its safety coordinator and participated by teleconference.

The safety coordinator noted that the WCB decided that the worker was not entitled to further benefits and the WCB Review Office found he was entitled. He said this was confusing.

The owner said that:

"...the big discrepancy that we had all the way along with this was there was multiple, multiple different doctors' notes for [the worker] there, and there was an opinion of, every doctor had a different opinion, and that's why we're having a slight issue with this is because according to the Comp doctor says he was fit to work way back when, and then his doctor kept saying a different thing."

He added that this is the only clarification they would like to get.

He also advised that they received reports about the worker participating in other activities outside work which caused some concern.

The owner said that the employer does not deny that he was injured at work or that he is entitled to benefits. The owner said that the employer tries to get people back to work as quickly as possible. He advised that he did not think the worker was totally disabled and that the employer could have accommodated the worker earlier. He noted that the worker was able to return to other duties and seems to be doing well.

On reply to a question about the appeal of medical aid benefits, the safety coordinator advised that the employer has no concern about the medical treatments.

Worker Position

The worker advised that he followed the advice of his physicians and did not return to work until authorized. The worker confirmed that he returned to work on September 21, 2015.

Regarding concerns about the worker driving while he was off work, the worker said that he drove a "few times" for medical appointments, to pick up medications and for related matters. He also drove occasionally to attend to personal matters.

The worker outlined various symptoms that he had subsequent to the injury. He advised that his left eye is still sensitive. He said that fluorescent lights, and vehicles driving at night bother his eyesight. He said that, basically, he wears his glasses all the time. Within the last month his left eye has, on occasion, become "lazy" or half closed.

The worker advised that he is still receiving treatments for headaches including injections. His next injection is January 2016. He also advised that he recently noticed balance and coordination problems, and that he gets dizzy or light headed occasionally. He also said that he occasionally has concentration problems.

When asked whether he could have returned before September the worker responded that he could not have worked in the shop due to the noise which affected his headaches.

Analysis

The employer is appealing the Review Office decision that the worker was entitled to wage loss and medical aid benefits after March 19, 2015. For the employer's appeal to be approved, the panel must find that the worker had recovered from his workplace injury and was able to return to work as of March 20, 2015. The panel was not able to make this finding.

Upon review of all the evidence, including the evidence provided at the hearing, the panel finds that the worker was entitled to wage loss and medical aid benefits after March 19, 2015. The panel notes the worker's treating health care providers found that the worker was not able to work as of March 19, 2015 and beyond, as the worker continued to have symptoms, was undergoing investigations/tests and was receiving treatments.

The panel notes that the worker had a pending appointment with a neurologist at the date the benefits were terminated. He subsequently saw the neurologist on May 13, 2015. The neurologist noted that "Certainly this is a chronic daily headache (in my opinion, post traumatic in origin). There is indeed evidence of concussion (mild)." He recommended medications and medicinal injection treatments. He commented that the "worker needs compensation." The neurologist provided injections.

The panel also notes that the worker underwent an MRI scan on June 7, 2015, which provided an impression of suspected lipoma adjacent to the pituitary stalk. A follow-up CT was also received.

The worker received his first injection from the neurologist on July 9, 2015. On September 2, 2015, the neurologist advised the WCB that the worker could return to work. Arrangements were made for the worker to return to work as of September 21, 2015. The panel finds that a return to work on this date was appropriate.

At the hearing, the employer representatives expressed concern regarding the confusing medical information, noting that the worker's physicians disagreed with a WCB medical advisor on the diagnosis and whether the worker could return to work. As well, they noted the disagreement between the Review Office and with the case manager. The employer representative advised they appealed the Review Office decision because of the differing positions to "get some answers."

The panel notes that, as of the date of this decision, the worker continues to receive treatment for his injury and the WCB continues to accept responsibility for such treatments.

The worker's employer'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 12th day of January, 2016