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 benefits after September 11, 2014 in relation to her compensation claim. A hearing was held on February 23, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after September 11, 2014.

Decision

That the worker is entitled to benefits after September 11, 2014.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a head injury that occurred at work on August 5, 2014. The worker reported that she was sitting outside supervising a basketball game when the ball struck her between the bridge of her nose and forehead. The worker indicated that "it was a shock." She continued supervising and then went inside. She reported the incident to her supervisor and iced her head. The worker said she did not feel 100% and went home early. The Employer's Incident Report confirmed the worker's accident description.

On August 12, 2014, the worker discussed her claim with a WCB adjudicator. The worker stated that she was doing a bit better but still experienced significant pressure behind the bridge of her nose and behind her eyes. She noted that the feeling of pressure "comes and goes" and the degree of pressure "varies significantly." The worker denied any significant feeling of nausea or dizziness. She said she had a follow-up appointment with her physician and agreed to resume her work duties for two shifts. She was instructed to follow up with her physician immediately if she had any issues with the return to work. Subsequent file records showed that the worker elected not to participate in the return to work which was agreed upon by her treating physician.

On September 3, 2014, the worker again spoke with the WCB adjudicator stating that she was experiencing a number of ongoing difficulties including: insomnia, minor short term memory loss, dizziness, light headedness, photo-sensitivity and feeling anxious in larger, more public settings. The worker denied any nausea. The worker explained that she was getting anxious thinking about a potential return to work, especially given her current symptoms and the work setting she would return to. The worker stated that she was seeing her doctor and expected to be referred to a neurologist.

On September 4, 2014, a WCB medical advisor reviewed the file and responded to questions posed by the WCB adjudicator. The medical advisor stated:

1. Based upon the mechanism of injury and the initial medical reporting that made reference to mild tenderness on palpation, a pulsating sensation in the head and nausea, the most likely diagnosis is a relatively minor head injury. Concussion has been mentioned in this file and it should be noted that this diagnosis is improbable...

The mechanism of [the worker's] injury would not likely be associated with sufficient force to result in brain injury. There was not a report of loss of consciousness or immediate confusion or disorientation. There were no reports of acute neurologic deficits after the injury. Subsequent to the injury, the treating physicians have reported normal neurologic examinations. There have been reports of headache, nausea, light sensitivity, short term memory loss and insomnia. These reports have come from the treating physician and would be based on the claimant's self-reporting.

Based on the above, a diagnosis of concussion would be improbable and would not meet the criteria as articulated in the Concussions Position Statement that is utilized by WCB Healthcare Services.

2. It is not probable that any appreciable period of recovery would be required after the described injury.

3. The described symptoms are not accounted for on the basis of the described injury.

4. The treating physicians have described normal physical examinations. Review of the file did not reveal the presence of a probable patho-anatomic or patho-physiologic lesion on which to base the imposition of restrictions on [the worker's] function.

In a decision dated September 10, 2014, the worker was advised that based on a review of the medical information and discussion of the objective medical findings on file with a WCB medical advisor, the WCB's opinion was that she had not sustained a concussion in relation to her minor head injury on August 5, 2014, and that the current medical evidence did not support total disability from work. As a result, WCB wage loss benefits would end on September 5, 2014.

On February 25, 2015, the worker's union representative submitted a report from a consultant neurologist dated October 3, 2014 to support that the worker continued to suffer from the effects of her compensable injury and had a loss of earning capacity beyond September 5, 2014.

The neurologist stated in his report: "In my opinion this woman has a post-concussion syndrome. As of this date she has not been able to return to work because of the symptoms of headache, dizziness and cognitive function with memory problems and difficulty with information processing and multitasking."

On May 20, 2015, the WCB requested clinical notes from the treating physician for the period from October 2014 onwards regarding the worker's head difficulties.

On June 9, 2015, the WCB medical advisor reviewed the file information and commented that:

• The worker did not meet the WCB's criteria concerning concussions. The medical reporting by the neurologist on October 3, 2014 did not change the events and the reporting that occurred immediately after the workplace injury.

• All clinical findings reported on the file were subjective and based on the worker's self report. There had been normal neurologic examination findings reported. The MRI brain was reported as normal. These observations argued against a concussion having occurred.

• There was no medical basis for the assertion that increased TSH was accounted for in relation to the workplace injury. Many of the symptoms (poor concentration, slow talking, lethargy, feeling mentally slow) were likely accounted for on the basis of hypothyroidism. Hypothyroidism itself accounted for a rising TSH. This disorder did not have a probable relationship to the workplace injury.

By letter dated June 22, 2015, the worker was advised that the additional information was reviewed by the WCB medical advisor and did not provide further evidence that she suffered a concussion from the compensable injury she sustained on August 5, 2014. Therefore no change could be made to the previous decision. On June 29, 2015, the worker's union representative appealed the decision to Review Office.

On July 29, 2015, Review Office determined that there was entitlement to benefits to September 11, 2014 based on Board policy 44.30.60 Notice of Change in Benefits or Services. Review Office stated that considering the mechanism of injury, the worker's initial reported symptoms, the objective medical evidence on file and the criteria listed in the WCB Healthcare Position Statement on Concussions, the diagnosis of concussion/post-concussion syndrome and the symptoms reported by the worker, were not causally related to the August 5, 2014 workplace accident. Review Office found that the evidence supported that the compensable diagnosis was a minor head injury and that recovery from such an injury would be of a short duration. On August 17, 2015, the union representative appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Following the oral hearing, the appeal panel met to discuss the case and requested additional information from the employer's representative and the neurologist. On April 14, 2016, the interested parties were provided with a copy of the information received by the panel, for their comments. Final submissions were received from the worker's union representative and the employer's representative and are on file. On June 6, 2016, the panel met further to discuss the case and render a decision.

Reasons

Applicable Legislation

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. 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 27(1) of the Act provides that the WCB "...may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, or the worker attains the age of 65 years.

Worker's Position

The worker was represented at the hearing by a union representative. The worker answered questions from her representative and the panel.

The worker's position was that the evidence established, on a balance of probabilities, that the worker sustained a concussion and a subsequent post-concussion syndrome as a result of the August 5, 2014 workplace accident.

The worker's representative submitted that there was a documented alteration in the worker's mental state consistent with the WCB Healthcare Position Statement. The worker sought medical attention when she continued to experience symptoms. Given the ongoing and persistent nature of her symptoms, she was assessed by a neurologist on October 2, 2014, who provided an opinion that she had post-concussion syndrome. It was submitted that the panel ought to place the most weight on the opinion of the neurologist, who performed two thorough examinations on the worker and is a specialist in neurology.

The representative submitted that WCB appeared to rely heavily on the Healthcare Position Statement in its decision-making process. She noted that the panel is not bound by the Position Statement, as it does not form part of WCB policy nor is it encompassed in the relevant legislation. The representative referred to several passages from literature on the topic of post-concussion syndrome which she had previously provided and was on file, as being more reflective of the current literature on the topic of concussions or post-concussion syndrome.

The representative further submitted that the Position Statement was not applied appropriately to the evidence in this case. The WCB appeared to rely significantly on the fact that the worker did not sustain a loss of consciousness. It did not sufficiently consider the other symptoms or criteria which are listed in the Position Statement and were experienced by the worker. The worker's position was that the remaining three of the four criteria which are listed in the Position Statement all occurred. The worker representative also noted that the most common symptoms of post-concussion syndrome include headaches, dizziness, fatigue, irritability, anxiety, insomnia, loss of concentration and memory, and noise sensitivity, and that the worker experienced many of these symptoms after the accident, which resulted in her having to continue to seek medical attention and be further evaluated by a neurologist.

In the worker's submission, given the facts and what was reported by the worker and documented in the neurologist's report, it was reasonable that the worker sustained a concussion based on the event that occurred, and that she would have suffered from post-concussion syndrome as a result of that concussion.

The panel also questioned the worker in detail as to the events of August 5, 2014 and the period that followed, as well as to her current medical and functional status and ongoing medical treatment. The worker said that she feels a lot better than she did a year ago. She has had to stay home at times because she was feeling dizzy. The dizziness has almost subsided, but she continues to be sensitive to noise and to feel overwhelmed in large, public places. She works fewer hours than before the accident, and is not able to work night shifts.

Employer's Position

The employer was represented by its acting WCB coordinator. The employer's position was that the evidence supported there is no causal relationship between the worker's ongoing symptoms and the workplace accident, and the worker's appeal should be dismissed.

It was submitted that before consideration could be given to there being a post-traumatic or post-concussion syndrome issue, the medical evidence first has to establish that a concussion occurred at the time of the accident. To assist in determining whether a concussion has in fact occurred, the WCB has adopted a Position Statement which identifies the criteria that must be present to substantiate a diagnosis of concussion. A key element is the immediate manifestation of those criteria.

The employer representative reviewed the evidence as to what occurred on August 5, as reported at the time and shortly thereafter, and submitted that the information overwhelmingly supported that the worker's injury did not result in her sustaining a concussion.

Referring at length to the Position Statement, the employer representative submitted that none of the four criteria in that Statement were met immediately following the injury, which is what is required. It was noted that the first mention of any diagnosis regarding a concussion or post-concussion was not evident until September 17, 2014, nearly five weeks after the accident, when it was mentioned by the treating physician.

The employer's position was that the panel should attach greater weight to the opinion of the WCB medical advisor who thoroughly reviewed the accident, the history of the accident, and the clinical testing done. It was submitted that even if the panel were to accept that the worker suffers from post-concussion syndrome, or post-concussion-like symptoms, the evidence does not support that a concussion occurred at the time of the accident.

In the employer's submission, the panel must therefore find there is no causal relationship between the current symptoms and the workplace accident, and the worker is not entitled to any further benefits.

Analysis

The issue before the panel is whether or not the worker is entitled to benefits after September 11, 2014. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's ongoing difficulties after September 11, 2014 were causally related to her workplace accident of August 5, 2014. The panel is able to make that finding.

The worker's position is that she suffered and continued to suffer from a post-concussion syndrome as a result of the August 5, 2014 workplace accident.

It is the panel's general understanding that the proposed medical diagnoses of concussion and post-concussion syndrome are linked. For there to be a compensable diagnosis of post-concussion syndrome, we must first establish that the worker suffered a concussion while at work on August 5, 2014.

The panel therefore carefully assessed the evidence as to what happened on the date of the workplace accident, and in the period that followed, to determine whether the worker did in fact suffer a concussion on that date. In assessing the evidence, the panel chose to use the concussion criteria contained in the WCB's Healthcare Position Statement for Concussions. While the Healthcare Position Statement is 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, as set out below, therefore provide the framework for our analysis which follows. 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, through her representative, confirmed that an observed or self-reported loss of consciousness did not occur.

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 worker relied on the observation that she was confused and unable to carry on a conversation with her co-workers immediately after the injury, as highlighted in the consultant neurologist's October 2014 report. The panel notes, however, that there is no reference to confusion, an inability to carry on a conversation or disorientation immediately following the injury, nor was any such information from co-workers referred to or on file. In her Incident Report dated August 7, 2014, the worker stated that she "was sitting outside supervising…and the ball was thrown and hit [her] in the head/face…It was a shock." She further stated that she "continued supervising and then we went inside and I reported it to my supervisor and iced my head. I didn't feel 100%. Around 5:30 p.m. I went home early." She listed her immediate symptoms as "headache, nausea, dizziness."

In an Accident Report which the worker completed for the employer on August 5, 2014, and at the hearing, the worker identified a particular co-worker as a witness to the accident. In response to an inquiry from the panel following the hearing, the co-worker stated that he believed that it was just he and the worker who were present and supervising at the time, that he "[did] not recall [the worker] exhibiting any signs of being disoriented or confused", and that "she did state that her nose and side of her face [were] sore, and she complained of a headache later in the day." He further stated that he "did talk to [the worker] after the incident, and her responses were logical, and did not show any signs of confusion."

The panel finds that this criterion is not met.

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

The first reference on file to any loss of memory appears in the August 21, 2014 report of the treating physician, who noted that the worker's reported complaints included "memory loss" and "insomnia, can't [concentrate]." This was 16 days after the work incident.

At the hearing, the panel carefully questioned the worker as to what happened on August 5, 2014. The worker noted that it was almost two years since the accident, which was a long time in terms of remembering details. She recalled being hit, the supervisor talking to her, her co-worker getting ice for her, being given a form and completing that form in the presence of the supervisor who signed it. She said the individual who had thrown the ball came over and apologized to her right away. She said that she drove herself home when she left work. In response to certain questions, she said that she could not remember small details, but could not say if that was because of the injury or the passage of time.

Based on the evidence as a whole, the panel finds that this criterion is not met.

• The occurrence of an acute neurologic deficit

The WCB medical advisor noted, on September 4, 2014 that there were no reports of acute neurologic deficits after the injury, and that subsequent to the injury, the treating physicians reported normal neurologic examinations. On October 3, 2014, the consultant neurologist reported an essentially normal neurologic examination, except that the head shaking test produced acute nausea and severe discomfort.

In advance of the hearing, the worker's representative provided the panel with a second report from the consultant neurologist, who saw the worker on October 13, 2015 and again reported an essentially normal neurologic examination, stating:

Neurologic examination was completely normal except for the Hallpike maneuver which produced nausea and dizziness when she was placed in the supine position with her head to the left. Additional head shaking test made the symptoms worse. It took several minutes before she returned to normal.

The panel finds that the medical evidence does not establish that the worker suffered an acute neurologic deficit on August 5, 2014.

This criterion is also not met.

The panel notes that the worker also relied on a variety of symptoms which were reported at the time or later, as themselves establishing that she had a concussion and post-concussion syndrome. In this regard, we note that the Position Statement states that post-accident symptoms such as headache, dizziness, irritability, fatigue and/or poor concentration, including when identified soon after an injury, can be used to support the diagnosis of concussion but cannot be used to make the diagnosis of concussion in the absence of the criteria listed above.

The panel therefore finds, on a balance of probabilities, that the worker does not meet the criteria in the WCB's Healthcare Services Position Statement for Concussions. The panel notes that the WCB medical advisor came to the same conclusion after reviewing the file on September 4, 2014, and again on June 9, 2015, based on the information available to him at those times.

As the panel is unable to establish a work-related concussion, it follows that we are unable to establish a work-related post-concussion syndrome. The panel therefore finds that the proposed post-concussion syndrome diagnosis is not a compensable injury.

Notwithstanding our findings regarding concussion and post-concussion syndrome, the panel does find that the worker suffered another injury, benign paroxysmal positional vertigo (BPPV) on August 5, 2014, and that the worker had not recovered from that injury as of September 11, 2014. This entitles the worker to benefits beyond that date.

As indicated above, the October 2015 report from the consultant neurologist stated that the neurologic examination was normal except for the Hallpike maneuver which produced nausea and dizziness and that the additional head shaking test made the symptoms worse. It is the panel's understanding that the Hallpike maneuver is a test for BPPV and that BPPV is often associated with a minor blow to the head.

The panel noted that in his earlier October 3, 2014 report (only 2 months after the workplace incident), the consultant neurologist had recorded that on examination, the "hallpike manouver (sic) was negative but the head shaking test produced acute nausea and severe discomfort." Following the hearing, the panel wrote to the consultant neurologist to inquire as to the difference in these results and what the tests established.

In his response dated March 18, 2016, the consultant neurologist confirmed that the Hallpike maneuver is used to identify BPPV and that "one of the causes of BPPV is a blow to the head." The neurologist stated that the different examinations on the two visits were simply a result of a change in the condition of the worker with regard to the exact testing maneuvers, and that:

The Hallpike maneuver is a test to examine specifically for [BPPV]…If the patient is not demonstrating any dizziness then I would perform the head shaking test, which is another way to test dysfunction of the vestibular system…In other words, both tests are done to assess vestibular dysfunction. On the October 3, 2014 examination, I mentioned that the Hallpike maneuver was negative but the head shaking test did produce severe nausea and discomfort. This is not inconsistent with the situation…On October 15, 2015 the Hallpike maneuver produced nausea and dizziness but I could not detect nystagmus. However, additional head shaking test did make the symptoms worse and this is again consistent …with vestibular dysfunction…there was no significant inconsistency or "different results" in the two examinations.

It is the panel's understanding that BPPV can occur even in the absence of a concussion. The panel notes that a diagnosis of BPPV in this case was based on the clinical testing which was performed by the consultant neurologist on two separate occasions, and is consistent with symptoms of nausea and dizziness which were reported by the worker immediately following the incident and on a number of occasions afterwards. As a result of those findings, the consultant neurologist referred the worker to vestibular physiotherapy.

The worker stated in her evidence that she had not followed up on the neurologist's referral to vestibular therapy. She said that there is a vestibular exercise that her treating physician recommended she do, which involves moving her head back and forth, but it makes her so dizzy and nauseous that she cannot bring herself to do it.

Based on our analysis of the evidence on file and the evidence provided at the hearing and in response to the inquiries from the panel, the panel accepts that the diagnosis of BPPV is consistent with the mechanism of injury in this case. The panel therefore finds, on a balance of probabilities, that the worker is entitled to benefits after September 11, 2014.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer

Signed at Winnipeg this 21st day of July, 2016