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 November 4, 2014 or additional medical aid benefits in relation to her compensable injuries. A hearing was held on June 29, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after November 4, 2014; and

Whether or not there is entitlement to medical aid benefits in addition to the worker's dental injuries.

Decision

That the worker is not entitled to wage loss benefits after November 4, 2014; and

That there is no entitlement to medical aid benefits in addition to the worker's dental injuries.

Decision: Unanimous

Background

The worker filed a claim with the WCB for injuries she sustained in a work-related accident on June 20, 2014. The worker described the accident as follows:

This occurred in a program classroom. I was bending down to pick up a bean bag and as I was coming up, this big swing got pushed into my head by a student. The swing is made of plywood and approximately 3 ft. x 3 ft. that fits kids up to approximately 250 lbs. It had padding on it so I didn't get cut but it still impacted me…he must have put force into the push because I looked like a mess after the incident…it hit the left side of my head, my left cheekbone, my left eyetooth crunched really hard together (jaw), eyetooth was sore, my neck got torqued to the right because my neck was super tight on my left side.

On June 26, 2014, the worker spoke with a WCB adjudicator and confirmed the mechanism of injury as described on the worker's injuries report. The worker did not think she was knocked out but was not sure. The adjudicator noted that the worker has had five previous concussions.

A Doctor First Report showed the worker attended for medical treatment on June 20, 2014 with complaints of pain in the left temporal area, pulsing headache, pain over left cheek and jaw, stiffness and pain left side of neck and lightheadedness. The diagnosis was injury to the left side of head.

On June 26, 2014, the worker was seen by a physiotherapist and was diagnosed with concussion symptoms.

On July 7, 2014, the worker was seen at a sports medicine clinic and was assessed with cervical strain and post-concussion symptoms.

On September 10, 2014, the treating physiotherapist submitted an Application for Additional Treatment stating that the worker's "Post-concussion syndrome requires slow pacing program of recovery below threshold of symptoms. Pt. would benefit from O.T. and psychological counselling."

On September 25, 2014, the worker was advised by her case manager that a call-in examination was being arranged to clarify the compensable diagnosis and whether her presentation met the WCB's criteria for a concussion diagnosis.

The worker was assessed by a WCB medical advisor on October 6, 2014. Based on her examination findings, the medical advisor concluded that the initial diagnosis of June 20, 2014 would be non-specific, non-radicular neck pain or the clinical equivalent to a strain. The worker would also have had a head contusion from the direct blow from the swing. The worker's presentation did not meet the criteria to confirm a concussive injury. The neurological examination was not supportive of a specific pathoanatomical diagnosis. The medical advisor stated there was no diagnosis that could be medically accounted for in relation to the workplace injury.

In a decision dated October 29, 2014, the worker was advised that she was not entitled to further benefits beyond October 29, 2014 in relation to her original injury of June 20, 2014. The case manager referred to the October 6, 2014 examination findings and made the determination that the worker had recovered from the effects of her compensable injury of June 20, 2014 diagnosed as a cervical/neck strain and head contusion. The case manager indicated that the worker's presentation did not meet the WCB Healthcare Position Statement criteria for the diagnosis of concussion. It was felt that the medical information did not establish a cause and effect relationship between the accident of June 20, 2014 and her current reported difficulties. On November 5, 2014, the worker appealed the decision to Review Office.

On January 7, 2015, Review Office determined that the worker was entitled to additional wage loss benefits to November 4, 2014 based on WCB policy 44.30.60, Notice of Change in Benefits or Services.

Review Office accepted that the compensable injury was a cervical strain and left sided head injury and agreed with the WCB medical advisor's opinion that the worker's neck injury had resolved.

Regarding the diagnosis of post concussive syndrome, Review Office referred to the criteria outlined in the WCB's Healthcare Position Statement and concluded that the diagnosis was not causally related to the workplace accident. Review Office acknowledged that the accident involved a force to the worker's head, however, it agreed with the WCB medical advisor that this would not be expected to produce significant blunt trauma, acceleration or deceleration, or blast force to the brain. The worker did not have immediate manifestations of disrupted brain function. Though the worker reported symptoms of pain, dizziness and lightheadedness at some point after the accident, this did not confirm the diagnosis of concussion when other criteria are not met in accordance with the WCB Healthcare Position Statement for Concussions.

On August 28, 2015, a worker advisor wrote the WCB case manager requesting that she adjudicate the worker's claim based on the following diagnoses: occipital neuralgia, convergence insufficiency and temporomandibular disorder.

On September 8, 2015, the WCB case manager asked a WCB medical advisor to review the new information and provide an opinion as to whether the new diagnoses outlined by the worker advisor were related to the workplace injury and to comment on whether the worker's current presentation was medically accounted for in relation to the work injury. A response from the medical consultant is dated September 15, 2015.

On September 29, 2015, the worker was advised that her file had been reviewed in consultation with a WCB medical advisor who provided the opinion that the new information and diagnoses did not change the previous opinions that her ongoing presentation was not medically accounted for in relation to the compensable injury. The case manager noted that the "new diagnoses" were essentially different labels to describe the symptoms the worker previously reported. She noted that Review Office had already reviewed the claim and provided the decision that the diagnoses related to the compensable injury were cervical strain and left sided head injury, with symptom duration expected to be short. The ongoing symptoms over a year after the accident would not be expected with this natural history. A concussion was not accepted by Review Office as being related to the compensable injury. On October 26, 2015, the worker advisor appealed the case manager's decision to Review Office.

After a preliminary review of the file information, Review Office identified a second issue for review: whether there was entitlement to benefits in relation to the worker's dental issues. Review Office then requested chart notes and imaging studies related to the dental treatment the worker received between August 2014 and October 2015. The information was reviewed by a WCB dental consultant on January 8, 2016 and his medical opinion to Review Office was shared with the worker advisor and worker for comment.

In a decision dated February 4, 2016, Review Office accepted the opinion of the WCB dental consultant that teeth numbers 23 and 32 were injured as a result of the workplace accident and that the worker was entitled to medical aid benefits for these dental injuries.

Review Office noted that the worker advisor requested that it reconsider its previous position that the diagnoses of concussion and post-concussive syndrome were not related to the workplace accident. Review Office indicated that it considered the statements made by the various medical disciplines in relation to the worker's symptomology but preferred to place greater weight on the opinion expressed by the WCB medical consultant who examined and interviewed the worker and the WCB Healthcare Position Statement for Concussions. Following a review of the new evidence, Review Office said it remained of the position that the worker did not sustain a concussion at the time of the injury and therefore the diagnosis of post-concussive syndrome was not related to the June 20, 2014 accident.

Review Office further indicated that it accepted the WCB medical opinions that the new diagnoses of occipital neuralgia, convergence insufficiency and TM syndrome were not related to the compensable injury. Review Office determined that the compensable neck strain and left sided head contusion resolved and therefore the worker was not entitled to benefits for these injuries. On February 9, 2016, the worker advisor 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 Board of Directors.

Subsection 27(1) of the Act provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.

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.

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury, states in part that a further injury occurring subsequent to a compensable injury is compensable when the cause of the further injury is predominantly attributable to the compensable injury.

The Worker's Position

The worker was represented at the hearing by a worker advisor and had a family member present for support. The worker advisor provided and read a detailed written submission setting out the worker's position regarding her entitlement to wage loss benefits after November 4, 2014, and to further medical aid benefits for medical conditions beyond the worker's dental injuries beyond that date.

Briefly, the worker's position is that her injuries on June 20, 2014 went well beyond the cervical strain, contusions to her head and the dental injuries that the WCB had accepted as being the compensable injuries. She also suffered a concussion on that date which developed into post-concussion syndrome (PCS), occipital neuralgia, convergence insufficiency and a TMJ disorder. She has been treated by a number of health care professionals and specialists in different fields, and they have provided medical opinions supporting these diagnoses and their causal connection to her workplace injury.

The worker advisor referenced the various reports and asked the panel to place greater weight on those reports given the many disciplines who have treated the worker and have come to similar conclusions, namely that the worker suffered a significant head trauma leading directly to multiple medical conditions that can only be attributed to the June 20, 2014 workplace injury.

The panel also questioned the worker in detail as to the events of that day and the period following, as well as to her current medical and functional status and ongoing medical treatment. The worker advised that she has returned to work doing half of her pre-accident hours. She is no longer working with late teens, but rather with very young children. She currently has good and bad days where the pressure behind her eye sockets will return. She has had to leave work early a couple of times as a result.

The worker continues to get injections for her headaches which she described as occipital nerve blocks. She has not really had relief from those injections and she is now looking at botox injections as a treatment option, noting she had an initial injection recently.

The Employer's Position

The employer was represented by two staff members. They did not advance a formal position on the issues, but were available to answer questions if needed.

Analysis:

The worker has advanced two issues on appeal.

The first issue deals with entitlement to wage loss benefits after November 4, 2014. For the worker to succeed on that issue, the panel would have to find that the worker had not recovered from the effects of her workplace injury as of that date, and that she was medically unable to perform her job duties after that date because of her compensable injuries.

The second issue deals with entitlement to ongoing medical aid benefits (in addition to the worker's dental injuries). For the worker to succeed on this issue and based on the facts of this case, the panel would have to find that the worker has additional compensable medical conditions that should be covered by the WCB and/or that she had not recovered from the medical conditions that had been accepted by the WCB.

For the reasons that follow, the panel was, on a balance of probabilities, unable to make these findings.

As noted earlier, the worker was hit by a swing on June 20, 2014, and the WCB originally accepted that the worker's compensable injuries were a cervical strain and head contusions which had resolved by November 4, 2014, at which time the worker was considered by the WCB to have recovered from those injuries. The panel notes that this was based on a WCB medical advisor's file review and call-in examination which took place on October 6, 2014. At that time and subsequently, the WCB has considered and declined to include a number of other medical diagnoses as being compensable and part of the worker's claim. These include assertions that the worker also suffered a concussion which developed into post-concussion syndrome, a TMJ disorder, occipital neuralgia and convergence insufficiency. Later, the WCB did accept responsibility for damage to two teeth.

Based on the submissions made to the panel, this appeal and decision deals with the worker's position that these medical diagnoses are a consequence of her workplace accident. We will consider each medical condition.

Concussion and Post-Concussion Syndrome ("PCS")

It is the panel's general understanding that these two proposed medical diagnoses are linked -- for there to be a compensable diagnosis of PCS, we must first establish that worker suffered a concussion while at work on June 20, 2014.

The worker's position is that the mechanism of injury, being hit hard on the side of her head by a padded wooden swing, caused her to suffer a concussion. A co-worker commented that she looked like a mess and at home later, the worker advised that she looked stunned with her eyes glazed over. She was also dizzy or lightheaded at one point on her drive to her doctor's office after the workplace incident. The worker advisor also asks the panel to place considerable weight on the number of treating health care providers who have made a diagnosis of PCS, based on the histories that were provided by the worker and other referring health care providers, as well as the symptoms observed or reported by the worker to them.

With this in mind, the panel has carefully assessed what happened on June 20, 2014, the date of the workplace accident, and in the period following, to determine whether the worker did in fact suffer a concussion on that date. In doing so, the panel has chosen to use the concussion criteria contained in WCB's Healthcare Position Statement for Concussions in our consideration of the evidence before us. This is a recent document and, while not binding on the panel, in our view it is based on current thinking on concussions and is consistent with our understanding of the current literature on concussions.

The criteria in the Healthcare Position Statement are set out below, and provide the framework for our analysis. The relevant criteria require a mechanism of injury of sufficient force to the brain either from blunt trauma to the head or an acceleration or deceleration mechanism that results in one or more of the following immediate manifestations:

• Observed or self-reported loss of consciousness

The worker confirmed at the hearing that she did not lose consciousness. She did not fall to the floor. The panel finds that this criterion is not met.

• Observed or self-reported alteration in mental state at the time of injury, such as confusion and/or disorientation

The panel notes that worker relies on a co-worker noting that she was stunned, and her own observations at home later that day. At the hearing, the panel carefully questioned the worker about what happened. The worker was able to describe in detail: her immediate reactions; her first words and conversations with the teacher in the room; initiate a phone call from the classroom to her doctor's office; book the appointment; take her assigned student down the hall to a lunch room; complete her lunch room duties; go to her car 1 hour 15 minutes later and drive to her doctor's office. The panel finds that this criterion is not met.

• Loss of memory for events immediately before or after the injury

As noted above, the worker had full memory of the events immediately after the injury. As to her memory before the injury, at the hearing, the worker described how another student had been throwing bean bags around the room which she bending over to pick up when she was hit. In the panel's view, the worker demonstrated full memory of the events immediately leading up to her being hit by the swing. The panel finds that this criterion is not met.

• The occurrence of an acute neurological deficit

The worker's evidence at the hearing is that the incident took place at 12:30 pm and she left for her scheduled doctor's appointment at 1:45 pm. The panel has reviewed the attending physician's report from that visit. We note that the report provides a consistent history of the worker being hit in the head. The physician also notes the worker's history of four prior concussions, indicating to the panel that the physician was fully aware of the worker's potential for significant head injury.

The actual findings at the first visit on June 20 relate to what might be expected from being hit in the face: The worker complained of pain in the left temporal area (the point of contact), pulsing headache, pain over her left cheek and jaw, and stiffness and pain on the left side of neck, as well as feeling lightheaded. The physician's clinical findings confirmed that the worker was tender to palpation in the left temporal and maxillary area of her face, with a slight reduction of range of motion of the neck in all directions.

Four days later, on June 24, the physician notes that the worker's complaints were of aching in her left lower neck and shoulder, and that her neck was still slightly stiff. She also fatigued easily. The physician's clinical findings noted full range of motion of the neck with aching at extremes of motion, tender/tight over the left trapezius, and slightly tender over the left scalp. The panel further notes that the physician indicated that recovery was satisfactory on the report.

In assessing the early medical evidence, the panel places considerable weight on our observation that the physician was fully aware of a reported blow to the head and of the worker's prior history of head trauma, yet her first report on June 20, within a couple of hours of the incident is completely silent as to any tests, concerns or observations as to any neurological or cognitive difficulties, presumably based on the worker not having complained of same and raising a "yellow flag" with the physician. The panel further notes that the worker saw that same physician four days later, on June 24, and again, there were no neurological tests or findings or complaints suggestive of a neurological deficit. The panel finds that the medical evidence does not support that the worker suffered an acute neurological deficit on June 20, and this criterion is also not met.

The panel therefore finds, on a balance of probabilities, that the worker does not meet the criteria in the WCB's Healthcare Position Statement for Concussions. The panel notes that the WCB medical advisor who examined the worker on October 6, 2014 came to a similar conclusion after her review of the information available to her at that time.

Given our finding that the worker did not suffer a concussion on June 20, 2014, the panel finds that the proposed post-concussion syndrome diagnosis is not a compensable injury. While the worker advisor suggests that later reports identify other symptoms consistent with PCS, the panel notes that the Position Statement provides that "The presence of symptoms even soon after the injury cannot be used to support the diagnosis of concussion in the absence of meeting the other criteria." As we are unable to establish a work-related concussion, it follows that we are unable to establish a work-related post-concussion syndrome.

Temporomandibular Disorder ("TMD")

The panel notes that the worker was first diagnosed with TMD by a specialist on March 17, 2015, who asserted that it was consistent with the mechanism of injury and therefore a compensable medical condition. He based his opinion on the worker's history that her neck got torqued to the right when she was hit by a swing. He indicated that it is well-known that TMJ pain and dysfunction is induced by whiplash trauma, regardless of whether impact is from the front, rear or other side. When concerns were raised by the WCB that the worker's TMJ symptoms were delayed and bilateral, he provided literature indicating that 1 of 3 people exposed to whiplash trauma are at risk of developing delayed TMJ symptoms. The worker advisor also relied on an October 15, 2015 report from the worker's dentist that no clenching or grinding resulting in TMJ pain was ever noted until the accident, and that this type of injury could result in injury to both TM joints.

The panel has considered whether the mechanism of injury resulted in a TMJ injury and finds that the evidence does not support this finding:

• The early medical reports from the worker's attending physicians, physiotherapist, and sports medicine doctor do not indicate any TMJ-type problems, outside of tenderness on the left side of the face noted at the outset of the claim.

• When examined by the WCB medical advisor on October 6, 2014, the worker indicated that her neck was okay, and did not reference any issues with her jaw or mouth during the interview. The medical advisor's examination findings indicated, however, that "She had grinding in both of the TMJ's (sic) with the left being worst. She did not describe any pain with opening. She did not have any pain or weakness with clenching." The panel notes that the medical examination was 3 months after the workplace accident, and finds that the noted grinding would be unlikely to have developed within such a short time frame but rather would have been a parallel condition not related to the workplace accident.

• The panel also considered the TMJ specialist's position that TMJ symptomology can show up on a delayed basis and be bilateral in nature where there has been a whiplash trauma. We find that the medical evidence does not support that the worker suffered a whiplash trauma. The early medical reports refer to stiffness and a slight reduction in neck range of motion on the day of the accident which had improved to essentially full range of motion four days later. These examination findings are not consistent with the type of whiplash trauma envisioned by the TMJ specialist as being causative of TMJ symptoms first identified 9 months later.

Occipital Neuralgia

The panel notes that the worker's neuro-ophthalmologist first diagnosed this condition on April 14, 2015, with the TMJ specialist providing the same diagnosis on March 17, 2015. The TMJ specialist later provides an opinion that the occipital neuralgia arose because of the known avoidant head-forward posture (which was observed in the worker) that TMD sufferers adopt in order to cope with the TMD condition. The worker advisor's position is that the occipital injury is a "further injury" caused by the TMJ condition and therefore it becomes a compensable condition as well.

Given the panel's earlier finding that the TMJ condition is not a compensable condition, the panel finds that the occipital neuralgia is not a "further injury" to a compensable condition as defined in the Policy, and is therefore not a compensable condition on that basis. The panel further finds that the worker did not suffer a direct blow to the occipital nerve which is another potential cause of occipital neuralgia, and accepts and adopts the WCB medical advisor's September 15, 2015 opinion in that regard.

Convergence Insufficiency

The worker's neuro-ophthalmologist first diagnosed this condition on April 14, 2015, noting that the worker had presented with a history of multiple head traumas and concussions. His opinion was that it was likely caused by the head trauma and bilateral dyschromatopsia (colour blindness) which was likely congenital.

Again, given the panel's early finding that the worker did not have a compensable concussion injury or post-concussion syndrome, the panel cannot relate the convergence insufficiency to the workplace accident of June 20, 2014.

Cervical Strain and Left Head Contusions

As noted in our earlier analysis, the panel finds that the medical evidence supports that the worker had slight stiffness and reduced range of motion of her neck on the day of her injury on June 20, 2014 which actually improved when seen by her doctor four days later. The worker also had tenderness in areas of the left side of her face at that time. The panel further notes that these conditions had all resolved by the time the WCB medical examiner had assessed the worker on October 6, 2014. The panel finds that the worker suffered a cervical strain and left head contusions as a result of her workplace accident.

Conclusion

Based on this analysis, the panel finds, on a balance of probabilities that the worker had recovered from the effects of her June 20, 2014 workplace injury by the date of her call-in examination on October 6, 2014, and there is no entitlement to wage loss benefits after November 4, 2014 or to additional medical aid benefits in addition to her dental injuries.

The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

A. Finkel - Commissioner

Signed at Winnipeg this 6th day of June, 2016