Decision #119/16 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his ongoing symptoms and disabilities were not directly related to the compensable accident of April 21, 2015 and therefore he was not entitled to benefits after June 11, 2015. An oral hearing was held on May 3, 2016 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to benefits after June 11, 2015.
Decision
That the worker is entitled to medical aid benefits for physiotherapy treatment for aggravation of a pre-existing cervical spine condition.
Decision: Unanimous
Background
On April 21, 2015, the worker injured his head, neck and bridge of his nose when a cut-off section of a pole struck him on the top of his head, knocking him to the ground. The pole weighed between 40 and 60 pounds and fell from a height of approximately 7 or 8 feet. The worker was wearing a hard hat at the time of the accident.
Medical information showed that the worker attended a hospital facility for treatment on the day of the accident. The hospital physician noted that the worker had an abrasion on his nose and pain to his shoulders and neck with no midline neck pain. X-rays of the cervical spine revealed degenerative changes.
A Doctor's First Report dated April 22, 2015 diagnosed the worker with headaches and a facial laceration.
On April 24, 2015, the worker was seen by a physiotherapist for an initial assessment. The worker complained of constant pain in his neck, occasional numbness in his hands, poor sleep,
tinnitus and light headedness. The physiotherapist's diagnosis was a C/S sprain/strain and a possible concussion.
On Thursday, May 7, 2015, the physiotherapist spoke with a WCB adjudicator by telephone indicating that she saw the worker on Tuesday and he reported being more light-headed, nauseous and having a lump in his throat. Today, his symptoms were the same, if not worse.
In a progress report dated May 15, 2015, the treating physician reported that there was no recent improvement in the worker's condition and that he still had issues with neck pain, headaches and dizziness.
On May 21, 2015, a CT scan of the brain was read as showing "No significant intra or extra-axial abnormality…No hemorrhage is recognized."
On May 28, 2015, a WCB medical advisor responded to questions posed by WCB case management regarding the worker's medical status. The medical advisor commented that the treating physician reported headache on April 22, 2015. This symptom was not reported acutely and this symptom did not in itself define concussion. The medical advisor noted that in the weeks after the workplace injury, there had been reports of headache and dizziness. He said these symptoms occurring in the weeks following the workplace injury does not fulfil the criteria for concussion as per the Concussions Position Statement utilized by WCB Healthcare Services. Based on the medical information on file, the diagnoses were laceration of the nose and a neck strain. The medical advisor indicated that the worker was not totally disabled and was capable of work with certain workplace restrictions.
The worker spoke with his adjudicator on June 3, 2015 to advise that he continued to experience headaches, dizziness and neck pain.
In a decision dated June 4, 2015, the worker was advised that based on review of his file by a WCB medical advisor, the medical evidence did not support the diagnosis of post-concussion syndrome and that the accepted diagnoses were laceration of the nose and neck strain. It was noted that the typical recovery for a sprain/strain injury was healing within 6 to 8 weeks and that workplace restrictions were not expected to be required beyond June 9, 2015. Wage loss and medical aid benefits were to be paid to June 11, 2015 inclusive and final based on WCB policy 44.30.60, Notice of Change in Benefits or Services. This decision was confirmed to the worker again on June 5, 2015.
A physiotherapy progress report dated June 12, 2015 indicated that the worker's neck pain and mobility was improving. The worker had light-headedness, nausea and a lump in the throat with no improvement.
On July 9, 2015, a Doctor's First Report indicated that the worker currently complained of dizziness, the sensation of vomiting and ringing in the ears. An MRI of June 12, 2014 noted a pinched nerve in his neck. The physician diagnosed the worker with possible facet joint irritation and vestibular/ocular issues.
On July 21, 2015, the first treating physician noted that the worker had a sore neck and headaches.
On October 9, 2015, the Worker Advisor Office wrote Review Office requesting reconsideration of the June 5, 2015 decision. The worker advisor submitted that the medical evidence supported that the worker continued to suffer with neck difficulties and with post-concussive syndrome symptoms, which are a direct result of his workplace accident. The worker advisor also provided an e-mail from the worker dated October 6, 2015 which "confirms that there was a period of disorientation or a gap in memory between the time that he was looking up and the next thing he remembered was being helped off the ground by the co-worker who was previously up in the bucket. We submit that this period of disorientation or gap in memory fulfills the main criteria for a concussion."
The employer's representative wrote Review Office on November 18, 2015 in relation to the worker's appeal. The representative referred to the medical evidence on file and asked Review Office to place weight on the WCB medical advisor's opinion of May 28, 2015 that the worker's injury did not meet the criteria for a concussion. The representative noted that there was no corroborating evidence to support the information provided by the worker in his e-mail of October 6, 2015. The representative concluded her submission by stating: "Concussion was not accepted as a diagnosis given that diagnostic criteria were not met. The accepted diagnosis of a nose laceration and neck strain …, would have resolved by June 9, 2015."
On November 23, 2015, the Worker Advisor Office wrote Review Office in response to the employer's submission dated November 18, 2015.
Prior to considering the worker's appeal, Review Office obtained clarification from the WCB medical advisor who previously reviewed the file on May 28, 2015. The medical advisor's response dated December 2, 2015 was provided to the worker advisor and the employer's representative for comment.
On December 7, 2015, Review Office found that there was no entitlement to benefits beyond June 11, 2015. Based on its review of the file evidence, Review Office stated it was unable to establish a causal relationship between the diagnosis of a concussion and the accident occurring on April 21, 2015. It found the medical evidence supported a compensable diagnosis of a cervical spine strain/sprain and a nasal laceration and that recovery from these injuries can occur within a short duration of time.
On December 7, 2015, the worker advisor appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged. On April 5, 2016, the worker advisor submitted additional medical information and witness statements for the panel's consideration.
On May 3, 2016, a hearing was held at the Appeal Commission to consider the worker's appeal. Following the hearing, the appeal panel requested additional information from the employer's representative as well as a report from the neurosurgeon who saw the worker on May 17, 2016. The requested information was later received and was forwarded to the interested parties for comment. On June 30, 2016, the panel met further to discuss the case and rendered its decision on the issue under appeal.
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.
The worker has an accepted claim for an injury arising from a 2015 accident. He is seeking wage loss benefits after June 11, 2015.
Worker's Position
The worker was represented by a worker advisor who made a submission on the worker's behalf. The worker answered questions from his representative and the panel. The worker advisor advised that:
The WCB accepted [worker's] claim on the diagnosis of a laceration of the nose and a neck strain. It is our position that being hit by a top of a [type] pole with enough force to have left evidence of an impact on his hardhat, and knocked [worker] to the ground, was sufficient enough of an impact to the head, and hitting the ground, to have caused his ongoing symptoms. In our opinion the incident was not minor, as opined by the WCB medical advisor and on which benefits have been discontinued…
The Review Office provides a position that they agree with the compensable diagnosis of a cervical spine sprain/strain and laceration, and a nasal laceration. However, they disallowed benefits beyond June 11, 2015 due to their medical advisor's opinion that the normal recovery rate for these types of injuries is four weeks.
It is our position that each injured worker's injury should be assessed on a case by case basis, and should not be based on a global assumption connected to the general population with regard to other incidents or accidents.
It is also our position that as long as there is medical information that confirms an injured worker continues to suffer ongoing symptoms due to a workplace accident, there is a WCB responsibility.
The worker advisor submitted that the medical information confirms that the worker continues to suffer from the effects of the compensable accident beyond June 11, 2015 and that benefits are payable as provided by subsections 39(2), 4(1) and 4(2) of Act.
The worker advisor noted that after June 11, 2015 the board authorized an additional 20 physiotherapy visits on July 8, 2015. She submitted that this shows that there was no recovery by June 11, 2015.
The worker advisor noted that although the WCB did not accept a concussion type injury because the evidence did not support the main criteria of a concussion, being that of observed or self-reported altered mental state at the time of the injury, there is evidence to support a period of observed altered mental state at the time of the accident on which to accept the diagnosis of a concussion and the diagnosis of ongoing cervical sprain/strain.
The worker advisor referred to following in support of the worker's appeal:
witness statements which provided their observations regarding the worker's disorientation;
the initial physiotherapist's report on April 24, 2015, which queried a concussion based on the symptoms of tinnitus and light-headedness;
a sport's medicine physician's report dated July 9, 2015, which confirms that there were associated symptoms of tinnitus, light-headedness, sensitivity to sound, sensitivity to loud noises;
family physician's report dated July 21, 2015 which continued to document and report ongoing neck pain and headaches;
a neurologist's report dated November 23, 2015 which confirms the worker was seen for post-traumatic headaches. The neurologist provided an impression based on examination that the worker's symptoms were consistent with cervicogenic headaches and muscular skeletal neck pain related to the trauma he sustained in April 2015 and provides a further opinion that he suspects the accident had caused, or at the very least, is contributing to his tinnitus, and he also suspects a concussion from the workplace accident;
an E.N.T. specialist's report dated November 27, 2015 that noted secondary tinnitus being related to the blow to the head or the neck; and,
a physiatrist report that provides his impression that the worker is suffering predominantly with post-traumatic mechanical neck syndrome and associates cervicogenic occipital headaches. He supports that the mechanism of injury and the symptoms are consistent with post-concussive syndrome.
The worker advisor submitted that:
It is our position that the medical information fully supports this relationship between [worker's] ongoing disabling symptoms to the workplace accident; therefore, there is a further WCB responsibility for benefits…
Employer's Position
The employer was represented by an advocate and its Disability Management Case Officer.
The employer's representative advised that the employer supports the worker's appeal. She submitted that the significant force involved in the mechanism of injury, could be sufficient to cause a concussion or brain injury.
She noted the co-workers' statements, which for the most part are in agreement that the worker was disorientated after the blow to the head. She also noted that the information also identifies post-accident symptoms such as headache, dizziness, irritability, fatigue and/or poor concentration.
She advised that the employer has information from the worker's supervisor which indicates that there have been changes noted in the worker's personality since the accident. Apparently before the accident, he was a very active person, played hockey, was pleasant, hardworking, and very positive.
The supervisor advised that the worker's supervisor has reported that the worker is like a different person; he has had difficulty with complex tasks, like assembling materials for jobs, or planning out material lifts, where he didn't have trouble before.
She noted that the worker's headaches could be from the concussion, but they could also be due to the strain to the neck which creates cervical ocular headaches reported by the doctors.
She submitted that the WCB erred in discontinuing his benefits on June 11th, even just on the basis of the physical injury alone.
Analysis
The worker has an accepted claim arising from a 2015 accident. He is seeking benefits after June 11, 2015. At the hearing the worker and employer submitted that the worker sustained a concussion in the workplace injury and is entitled to further wage loss and medical aid benefits.
The issue before the panel is whether the worker is entitled to benefits after June 11, 2015. For the worker's appeal to be approved, the panel must find on a balance of probabilities, that the worker sustained a loss of earning capacity and required medical aid after June 11, 2015, in relation to the accepted injury.
For the reasons that follow, on a balance of probabilities, the panel is unable find that the worker sustained a loss of earning capacity after June 11, 2015 in relation to the accepted injury, but finds that the worker is entitled to further medical aid benefits.
The panel considered whether the worker sustained a concussion in the accident and whether the worker suffers from post-concussion syndrome. The panel accepts that the mechanism of injury included physical trauma of sufficient force that would be reasonably expected to lead to an immediate brain injury. The object which was dropped and landed on the worker's head weighed approximately 65 lbs. and was dropped on the worker from a height of 25 inches above the worker. This was confirmed by the accident investigation materials provided to the panel after the hearing, which was circulated to the parties for comment.
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 was assessed at a hospital shortly after the incident. The hospital triage notes recorded on April 21, 2015 at 13:23 PM indicate that "pt. stated no LOC (loss of consciousness) with same". The panel also notes that the worker's and co-workers' statements provided to the employer as part of the accident investigation do not indicate that the worker lost consciousness.
The panel gives greater weight to this evidence than to the later evidence gathered for the purpose of adjudication of the claim. 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
In considering this criteria the panel reviewed the statements provided by the co-workers to the employer for the purpose of the accident investigation. These statements do not indicate that the worker was confused or disoriented. The panel specifically notes the following statements:
I went to [worker] who was talking with [co-worker]. [worker] was alert but bleeding from the cut on his nose and forehead. He had a piece of paper towel that he was dabbing his nose and forehead with. After getting a good look at his injury, [worker] was hesitant but I insisted I drive him to the hospital.
I heard a crash, I turned and looked down to see [worker] on his hands and knees struggling to get back on his feet. I immediately got down off the bucket and assisted [worker] to a safe place at the worksite where he could be looked over and given first aid. I brought him over to the pickup truck…at this point [worker] was insisting that he would be OK.
The worker relies on his co-worker's statements, provided months later for the purpose of adjudication of the claim, which indicate that he was disoriented after the incident. The panel gives greater weight to the statements provided nearer the incident. The panel finds that this criterion is not met.
Loss of memory for events immediately before or after the injury
The panel notes that the worker was able to provide a description of events before and after the incident in his statement dated April 22, 2015.
In the panel's view, the worker demonstrated full memory of the events immediately leading up to his being his being hit by the pole. He could explain what he was doing before and after the incident and he had no loss of memory for events before or after the injury. The panel finds that this criterion is not met
The occurrence of an acute neurological deficit
The panel was not able to find evidence of an acute neurological event. The panel finds this criterion is not met.
As none of the criteria have been met, the panel is unable to find that the worker suffered a concussion in the workplace injury and therefore does not suffer from post-concussion syndrome.
However, the panel finds that the worker sustained an aggravation of his pre-existing cervical spine condition and is entitled to medical treatment in relation to this condition. In making this finding, the panel relies upon the May 24, 2016 opinion of the neurosurgeon who examined the worker on May 17, 2016. The neurosurgeon opined that:
The clinical presentation suggest some mechanical cervical pain. The intermittent numbness and paresthesia of the fifth finger left hand may be radiological related to the mild foraminal stenosis seen on the MRI. Given the clinical evolution, I recommended that the patient pursue some physiotherapy with the goal being stabilization and reconditioning of the cervical segment. An infiltration of the zygapophyseal joint was discussed in case the cervical pain persisted or progressed. The prognosis of the cervical mechanical pain is generally favorable whereas the course may be protracted. Therefore,
I would recommend that the patient still avoid more strenuous physical activity involving heavy lifting, pushing or puling.
The worker's appeal is approved, in part.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 27th day of July, 2016