The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to wage loss benefits after August 18, 2015 in relation to his compensable injury. A hearing was held on May 17, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after August 18, 2015.

Decision

That the worker is not entitled to wage loss benefits after August 18, 2015.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a head injury that occurred on May 28, 2015. The worker reported that he was working on shop equipment when he struck his head on the hopper door of a street sweeper. The hopper was a little above his eye level and he is 5'10" in height. The worker reported the accident to the company's owner and continued working. On June 1, 2015, he missed time from work and was later diagnosed with a severe concussion.

The Employer's Accident Report confirmed that the worker walked into an object in the shop striking his head. The next morning, the worker experienced blurred vision and dizziness.

When speaking with a WCB adjudicator on June 3, 3015, the worker reported that he felt immediate pain and a headache after the accident. He stumbled to where his boss was in the shop. He did not think it was that bad and hoped that it would go away and he kept on working. He did not think he blacked out after he hit his head. The pain progressed in the evening to the point where his teeth were aching. He went to bed and in the morning his head was sore. He went to work. He noticed that he was cold and the headache was still there while at work. By Sunday he was really worried and was having difficulty speaking and memory loss so he decided to see a doctor. He was struggling to put his thoughts into words.

The WCB obtained medical information from the treating physician and physiotherapist and a hospital emergency report. On August 7, 2015, the file information was reviewed by a WCB medical consultant who stated:

1. This 45 year old male heavy equipment operator reported hitting his head on a hopper door. He continued to work, but did mention the incident to the company's owner. A couple of days later he had reported difficulty with word finding and memory. He went to the doctor who sent him to ER. He reported headache, photophobia, dizziness, trouble talking, fatigue in arms, and pressure behind the left eye. In neither case was loss of consciousness, amnesia for the event, altered mental state, and/or other neurological deficit documented or witnessed. Neuro exam was normal but he was thought to have slow, slurred speech, confusion, and memory loss. He did not meet the Canadian CT Head Rule criteria so CT was not performed.

The worker does not meet the criteria to confirm concussion:

• The force involved would not be of the magnitude that brain injury (concussion) would be expected. This typically involve approx. 80 g's of force which involves considerable speed, fall from a height, external force, blast, etc.

• There were no immediate manifestations of disrupted brain function:

  • He did not report loss of consciousness, amnesia, altered mental state, and/or other neurological deficit immediately.

  • Several days later he reported memory loss, which is not indicative of brain injury.

  • He was able to carry on purposeful activity.

• The onset of symptoms such as headache, memory or concentration issues, dizziness, etc. some time after the accident do not confirm the dx [diagnosis] of concussion if the other criteria are not met.

This MOI [mechanism of injury] would most likely cause a head contusion at the site of impact. There may have been a mild whiplash type injury to the head/neck which could result in a neck strain pattern of injury.

2. The worker presents now with nausea, headaches, light/noise sensitive, blurred vision, difficulty with sleep, foggy feeling and word finding difficulty. These symptoms would not be related to a head contusion or neck strain. They have been presumed to be post-concussion. In the absence of a confirmed concussion in the workplace, they cannot be medically accounted for in relation to the C/I. If they are not related to the C/I, it is not for WCB to determine a dx.

The worker does still have some loss of neck ROM [range of motion] and strength. That could be related to the neck strain.

3. A head contusion will cause localized pain and possibly bruising/swelling at the site of impact. It could cause temporary headaches, dizziness, and nausea. All symptoms will resolve with time, typically over a few days. A neck strain will also cause localized pain and possibly headaches, dizziness, and nausea. All symptoms will resolve with time, but it could take several weeks.

4. Physiotherapy is appropriate treatment for the neck strain. The head contusion will resolve without treatment.

Referral to an eye specialist would not be related to the C/I as there is no evidence of an eye or brain injury in relation to the C/I.

5. Full recovery from the head contusion and neck strain should occur fully within 6 weeks. During that time, graduated return to normal activity is therapeutic, such that by 6 weeks, the worker should be fit for full time regular duties.

By letter dated August 12, 2015, the worker was advised by Compensation Services that responsibility for wage loss benefits would not be paid beyond August 18, 2015 as it was the WCB's position that he had recovered from his compensable injury and there was no relationship between his current condition and the incident of May 28, 2015.

On August 13, 2015, the WCB received a report from the treating physician related to an examination dated June 15, 2015. The treating physician reported that the worker complained of concussion-related symptoms including headache, dizziness, blurred vision, fatigue and drowsiness. The physician reported that the worker's condition met the clinical criteria for an acute concussion.

In a memo dated August 14, 2015, a WCB medical consultant commented that she reviewed the June 15 medical documentation and there was no information to alter her decision of August 7, 2015. The consultant stated:

In the report, the doctor notes that the worker meets the clinical criteria for acute concussion. He is making this dx over 2 weeks after the accident. Symptoms of a concussion are immediate so the most accurate time to determine whether or not there was a concussion is right away. The doctor does not provide the criteria he uses to confirm concussion…The hallmark of a concussion is that it is a brain injury and there must be immediate evidence of disrupted brain function. Based on all the information on file, this worker did not demonstrate immediate evidence of disrupted brain function. The dx is made retrospectively here based on his symptoms of headache, dizziness, etc that were present some time after the accident. The symptoms reported by the worker are very commonly seen in people who have never been concussed. Their presence do not confirm the dx.

On August 18, 2015, the WCB case manager spoke with the worker by telephone to advise that the updated medical information was reviewed and that no change would be made to the position that the medical evidence did not support a concussion diagnosis. On October 28, 2015, the worker appealed the decision to Review Office.

In a decision dated November 19, 2015, Review Office confirmed that there was no entitlement to wage loss benefits beyond August 18, 2015.

Review Office indicated that it reviewed the various medical reports on file and preferred to place more weight on the WCB Healthcare Position Statement and the file information which was in close proximity to the worker's accident. Review Office agreed with the WCB medical opinions on file that the compensable injuries are a head contusion and a neck strain and that recovery, on a balance of probabilities, would be of short duration.

Review Office acknowledged the accident involved a force to the worker's head, however, it agreed with the WCB medical consultant that this would not be expected to produce significant blunt trauma, acceleration or deceleration or blast force to impact the structural integrity of the brain.

Review Office could not relate the diagnosis of concussion and post-concussive syndrome as well as the worker's current symptoms, to the May 28, 2015 workplace accident, diagnosed as a head contusion and neck strain. The compensable injuries would not have limited the worker's ability to work regular duties.

On February 2, 2016, the Worker Advisor Office appealed Review Office's decision to the Appeal Commission and an oral hearing was held on May 17, 2016.

Following the hearing, the appeal panel met to discuss the case and requested additional medical information. On June 1, 2016, the interested parties were provided with a copy of the medical information received by the panel and were asked to provide comment. On June 21, 2016, the panel met further to discuss the case and rendered a decision on the issue under appeal.

Reasons

Commissioner Finkel and Commissioner Walker:

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) 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 who provided the panel with an oral and written submission, and asked questions of the worker. Briefly, it was the worker's submission that the Appeal Commission is not bound to apply the WCB's Healthcare Position Statement on Concussions, and that there was ample medical support from the worker's treating medical professionals to establish that the worker had suffered a concussion and/or post-concussion syndrome ("PCS") as a result of his compensable injury. The worker pointed to general information from two websites (the Mayo Clinic and Centers for Disease Control) as supporting their position that signs and symptoms of concussion may be subtle and not immediately apparent, or delayed by hours or days following the injury.

The worker advisor also referenced the reports and findings of the worker's treating nurse practitioner, sports medicine/concussion specialist, physiotherapist and neurologist as support for the worker having a concussion injury in May 2015, for the ongoing relationship between that diagnosis and for the worker's ongoing inability to return to work after August 18, 2015.

In the alternative, the worker advisor submits that the worker had an unresolved compensable neck injury as of August 18, 2015, and that either condition (a neck strain or the concussion/PCS) would entitle the worker to wage loss benefits after August 18, 2015.

In response to questions from the panel, the worker stated that his condition has only started to improve in the last two months, and in particular: "Lessening of the severity of headaches, minimal, but some speech improvement, I still have trouble with speech. Thought processing is slowly getting a little bit better. Visual is slowly getting a little bit better. Still having problems with certain aspects of visual."

The worker advised he has had occipital nerve block injections. When asked about treatment plans set out by his neurologist in November 2015, the worker advised that there is a one year wait for an assessment by a neuropsychologist. He has not had vestibular therapy, and he believed there may have been a referral started for an ear, nose and throat specialist. Visual therapy did start but was stopped in December 2015, as the worker did not have income to pay for the treatment.

The worker advisor and the panel asked detailed questions of the worker as well as the employer representative as to the events of May 28, 2015 and the days following.

The Employer's Position

The employer was represented by the owner. He indicated that the worker was a valued employee and hoped that the worker would get fair treatment. The employer later answered questions from the panel regarding the events of the day of the accident and the days immediately following.

Analysis

This appeal deals with the worker's entitlement to wage loss benefits after August 18, 2015. For the worker to succeed on that issue, the panel would have to find that the worker had not recovered from the effects of his workplace injury as of that date. For the reasons that follow, the majority of the panel was, on a balance of probabilities, unable to make this finding.

The original reports of injury indicate that on May 28, 2015, the worker "banged his head" on the bottom edge of a piece of his equipment that he was walking by. The central question in this appeal really turns on the severity of that blow -- was it sufficient to cause a concussion or a neck injury that remained unresolved three months later, on August 18, 2015, when the WCB had considered the worker to have recovered from his injuries?

Concussion and Post-Concussion Syndrome ("PCS")

The majority will deal first with whether the worker suffered a concussion on May 28, 2015. The worker advisor's submission is that many of the worker's treating healthcare providers have offered opinions that the worker suffered a concussion and then a post-concussion syndrome ("PCS") based on the constellation of complaints and symptoms that were presented by the worker during their examinations.

One of the challenges in this case is that the worker did not seek immediate medical attention, continued to work in his regular duties for the balance of that day and the day following, and first sought treatment three days later. It was at that time that a potential diagnosis of a concussion was first entertained, based on the history and symptoms reported at that time. The worker advisor stated that the delay in seeking medical attention should not be a fatal blow to the worker's claim; indeed, the worker's evidence at the hearing was that he was the kind of person to tough it out.

The majority agrees that the delay in seeking medical treatment is not fatal to a concussion claim. However, a health care professional's description at any time of concussion-like symptoms is not in and of itself determinative of whether an individual has suffered a concussion. There is an important distinction, in the majority's view, between the criteria used to establish that a concussion occurred and the symptoms that arise from a concussion. This distinction is noted in a recent WCB Healthcare Position Statement for Concussions which states "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."

While the worker advisor has advanced the position (supported by online medical sources) that that signs and symptoms of concussion may be subtle and not immediately apparent or delayed by hours or days following the injury, the majority finds that this is essentially a restatement of the WCB Position Statement regarding the onset of symptoms. The articles do not change the criteria used to establish a concussion, for the purpose of our analysis. There still needs to be an event leading to a concussion (which has specific elements or criteria immediately apparent at that time), following which there may be symptoms showing up at varying points in time. Stated differently, there still needs to be concussion first.

As to whether there is a concussion, this requires a careful assessment of what exactly happened.

With that in mind, the majority has carefully assessed what happened on May 28, 2015, 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 majority 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 recently published document and, while not binding on the panel, it is in our view based on the current thinking on concussions and is consistent with the majority's understanding of the current literature on concussions.

It is the majority's general understanding that the two proposed medical diagnoses (concussion and PCS) are linked -- for there to be a compensable diagnosis of PCS, we must first establish that worker suffered a concussion while at work on May 28, 2015.

The worker's position is that the mechanism of injury, being hit on the top of his head, caused him to suffer a concussion. The majority notes the consistent evidence of the worker and his employer is that the worker continued to work on his regular duties for the remainder of his shift and, as well, the next day. He first sought medical treatment three days later when a concussion diagnosis was first proposed. The majority notes that there were inconsistencies on occasion between the worker's evidence at the hearing and the early evidence on the file and has preferred to place greater weight on the contemporaneous evidence as being a more accurate reflection of the events at that time.

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 he did not lose consciousness. The majority 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 majority notes that the Worker's Incident Report describes the incident and then states, "I continued to work and mentioned it to [the employer]." At the hearing, the panel carefully questioned both the worker and employer about what happened. The worker advised that he continued to work. The employer provided similar evidence at the hearing. Variously, he "heard him say ouch," "He didn’t seem injured, in my opinion, at that point" and "I didn't notice anything out of the ordinary. The worker described how he returned to his regular duties, which involved reinstalling a conveyor belt onto a vehicle, "That involves replacing and putting the top and lower rollers in, and then putting the belt in place, lowering it down both sides and bolting it back in, and then adjusting everything." The worker and employer both recalled that the worker performed general mechanical and repair duties the next day, with no performance issues noted. The majority finds that the worker's immediate ability to resume working on challenging mechanical repairs is not consistent with an alteration in mental state at the time of the injury. The majority finds that this criterion is not met.

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

The majority notes that the worker had full memory of the events immediately before and after the injury, and finds that this criterion is not met.

• The occurrence of an acute neurological deficit

Given the worker's ability to undertake a complex mechanical repair immediately following the blow to his head and for the balance of his work shift, the majority finds that the evidence is not supportive of an acute neurological deficit at the time of the incident. This criterion is also not met.

The majority therefore finds, on a balance of probabilities, that the worker does not meet the criteria in the WCB's Healthcare Position Statement for Concussions to establish the occurrence of a concussion at work on May 28, 2015. We further note that the WCB medical advisor undertook a review of the file on August 7, 2015 and came to a similar conclusion based on the medical reports and case manager's notes from discussions with the worker.

As we are unable to establish a work-related concussion, it follows that we are unable to establish a work-related post-concussion syndrome.

Neck Strain

The worker advisor advanced an alternate position that the worker suffered a neck strain that had not resolved by August 18, 2015 and was responsible for the worker's loss of earnings after that date.

The majority notes that a WCB medical advisor provided an opinion on August 7, 2015, that the worker may have suffered a mild whiplash type injury to the head/neck resulting in a neck strain pattern of injury. She further notes, however, that the worker's symptoms of nausea, headaches, light/noise sensitivity, blurred vision, foggy feelings and word finding difficulties were not consistent with a neck strain. The medical advisor confirmed that the worker still had some loss of neck range of motion and strength, and would cause localized pain and possibly headaches, dizziness and nausea, all of which would resolve with time, but it could take several weeks. Physiotherapy was considered to be appropriate for the neck strain.

The majority notes that the worker did commence with physiotherapy on June 19, 2015 and that a progress report dated August 11, 2015 notes that cervical spine active range of motion had increased to 90%, with a changed focus in the progress report to vestibular, light sensitivity and other issues. At this point, the worker was provided a home program for his neck that involved neck stretches. In the majority's view, the worker has demonstrated a significant and expected improvement of his neck strain injury after undergoing the recommended physiotherapy treatment for almost two months. The majority finds, on a balance of probabilities, that the worker's neck strain injury would not have precluded his return to work on August 18, 2015.

The majority therefore finds, on a balance of probabilities, that the worker's ongoing medical issues after August 18, 2015 are not causally related to his work injury of May 28, 2015, and that he is therefore not entitled to wage loss benefits beyond that date.

The worker's appeal is denied.

Panel Members

A. Finkel, Commissioner

P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Finkel, Commissioner - Presiding Officer

Signed at Winnipeg this 11th day of August, 2016

Commissioner's Dissent

Presiding Officer Kells' dissent:

Reasons:

A. 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.

The worker is appealing the WCB decision that wage loss benefits would not be paid beyond August 18, 2015.

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 time as the worker’s loss of earnings capacity ends. Subsection 40(1) of the Act defines loss of earnings capacity as the difference between the worker’s net average earnings before the accident and the net average amount that the board determines the worker is capable of earning after the accident.

B. Worker’s Position

The worker’s position can be summarized as follows:

1. The worker’s injury satisfies the criteria contained within the WCB’s Healthcare Position Statement on Concussions.

2. In examining the medical evidence, greater weight should be placed on the evidence of medical professionals who have actually assessed the worker and have concluded that he was suffering a concussive injury.

3. If the panel concludes that there is no further wage loss payable on the basis of a concussion-related injury, then the panel should grant the worker’s appeal on the alternate basis that the worker sustained a continuing loss of earning capacity due to an unresolved compensable neck injury.

C. Employer’s Position

The employer appeared and provided information to the panel. Rather than make a formal presentation, he stated that he was there to support the worker’s claim. He stated that he was fully familiar with the worker’s condition, and that the worker had not recovered to the point that he could safely function as a heavy duty mechanic/heavy equipment operator. He stated that the employer did not have modified duties that could be performed by the worker in his present condition.

D. Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits after August 18, 2015. For the worker’s appeal to be successful, the panel must find that the worker continued to have a loss of earning capacity after August 18, 2015, as a result of the workplace injury suffered on May 28, 2015.

The majority of the panel have been unable to make that finding. I dissent from their decision and find that the worker continued to have a loss of earning capacity after August 18, 2015, as a result of the workplace injury suffered on May 28, 2015. My reasons are set forth in the following sections:

1. Worker’s Injury of May 28, 2015 and Worker’s Evidence Regarding Delay in Seeking Treatment

2. Initial Medical Care: May 30, 2015 at Walk-In Clinic and Hospital Emergency Room

3. Overview of WCB’s Position Statement on Concussions

4. Medical Evidence Subsequent to Initial Examinations on May 30, 2015

5. Physiotherapy Assessments and Referrals

6. Positions Taken by WCB in Rejecting the Worker’s Claim

7. Consideration of the Review office Decision of November 19, 2015

8. Request by Panel for Additional Information following the Conclusion of the Hearing

9. Discussion and Conclusions

Assessing the Medical Evidence

The Decision Making Process

Disposition

1. Worker’s Injury of May 28, 2015 and Worker’s Evidence Regarding Delay in Seeking Treatment

The worker was employed as a heavy equipment operator and performed work as a non-certified heavy equipment mechanic. His employer had a contract with the City of Winnipeg, and in conjunction with that contract, the worker operated plough trucks, street sweepers, graders and other such equipment. He also performed routine service on that equipment in the employer’s shop.

The worker was injured on Thursday, May 28, 2015. The Worker Incident Report stated that the worker had been working in the employer’s shop and he had gone over to one corner of the shop for something (but at the point of completing the report, he couldn’t remember what it was.) As he was walking back, he hit his head on the hopper door of a street sweeper that had been elevated to enable that equipment to be serviced. The door, (which was open and hanging down) was a little above the worker’s eye level. He mentioned the injury to his employer and then continued to work.

When questioned at the hearing, the worker advised that he didn’t know what he was doing in the corner of the shop where he had hit his head. “I don’t know what I was doing there, whether I was coming from the bathroom, whether I went to go get a couple of tools or a part. That part, I have no clue.”

The Employer Accident Report advises that the worker said “ow” when he walked into the equipment, and that he advised his employer how he had injured himself. The report stated that the next day “he reported to [the Manager] in the morning he had blurry vision and was getting dizzy.”

The employer stated that the employee asked him after the accident how he looked, but the employer advised that he couldn’t see any anything out of the ordinary.

At the hearing, the employer advised that he believed that the accident occurred later in the afternoon, perhaps within the final hour of the worker’s shift. The worker could not recall the time of the accident but accepted the employer’s evidence.

The worker was wearing a ball cap when he was injured. He stated that contact with his head was made on the top of and toward the back of his skull. He advised that he did not know until he sought treatment on May 31, 2015, that the skin on his skull had been split, for it was at that time clinic personnel advised him of “scabbing” at the point of the injury.

The worker testified that following the accident, he “pushed through” to the end of his shift, after which he drove himself to his girlfriend’s home. He stated that as far as he knew, he had been able to drive. He testified that as the evening progressed, his pain became increasingly worse. It was all the way from the top of his head into his jaw. He stated that it was so bad that it got to the point where he wanted to take pliers and pull his teeth out. He said that he then laid down around eight that evening. He stated that he didn’t remember much after that. When he was questioned as to whether he had taken any medication for pain, the worker advised that he had not, for he can’t take aspirin, and he knew that a person is not supposed to take Tylenol for head injuries because it causes “rebound headaches.”

At the hearing the worker was asked how he felt when he woke the next morning. The worker stated that he didn’t remember how he felt, “other than probably not the greatest, and just go to work, do what I have to do. That’s literally the way I’ve always done things.”

The employer advised the panel that he asked the worker how he was when he came to work on the day after the accident, and the worker informed him that he had pain in his head and that he had had a rough evening. He was not feeling 100 %.

A member of the panel raised a question in relation to evidence available to support whether the injury fell within one of the parameters of the WCB Concussion Protocol. In response, the worker stated that:

Like I don’t know if there’s a mention of it in my original visit to the clinic, but that was one of my complaints, was, as I told them, my speech is slurred, like I’ve been drinking.

And when I had to fill out a form, print and sign, it wasn’t recognizable as my writing. And that’s the frustrating part, is I pushed through to do my job, to go through life, thinking that this is just a bump to the head.

The worker was injured on a Thursday afternoon. He did not seek medical care until the Sunday afternoon. The worker explained his delay in seeking treatment in the following terms:

The reason for that is, number 1, I am very dedicated to my job, and I will push through as hard as I can. Number 2, I’m sure you’re probably aware [of] the old sports analogy, walk it off, it’ll be better.

That’s how I grew up, and, honestly, had I known that my head got hit as hard as it did, I would have gone to the doctor or hospital sooner. And that’s why there was a delay, was, okay, headache today; it’ll be gone later.

Okay, next day, headache, what the hell? And by Sunday, it was okay, we have a problem here …

The worker also stated:

And let’s be honest, look at wait times in the hospital. Are you going to sit anywhere from three to six hours, plus, just for a bump to the head? Or are you going to take yourself home, try to rest, and hope that it gets better, with the belief that it’s only a bump.

That is the frustrating part, you know. I’ve just been trying to go through and live a normal life, do my job, from the moment that the accident happened. And I was able to push for, basically a day, and that was it. And now I’m like this.

2. Initial Medical Care: May 30, 2015 at Walk-In Clinic and Hospital Emergency Room

On the afternoon of Sunday, May 31, 2015, the worker sought care from a walk-in clinic. He was seen by a nurse practitioner who subsequently referred him to a hospital emergency room for a CT scan.

The WCB Report that was completed by the nurse practitioner on that occasion stated the worker’s subjective complaints were “painful to read, photophobia, severe headache 7/10, dizzy: trouble talking; fatigue in arms; pressure behind left eye.” The objective findings were stated to be “slow speech; sometimes tongue tied; slurring speech; confused at times, memory loss; PERRLA, unable to remember actual event but remembers before and after event.” (PERRLA is an acronym used by medical personnel to indicate that the patient’s pupils were round, equal, reactive to light, and had an ability to accommodate).

The nurse practitioner advised the worker that he should be off work for two weeks. She also referred the worker to an emergency medical doctor to determine if a CT scan was warranted. The Health Sciences Centre physician concluded that the injury, which was described as a “closed head injury”, did not necessitate a CT scan.

A subsequent WCB letter to the worker summarizes that report:

A May 31, 2015 first doctor report indicates you were seen for an injury to the frontal aspect of your head. You reported banging your head on the door of the street sweeper. You complained of pain when reading, photophobia, severe headache, dizziness, trouble talking, fatigue in arms and pressure behind your left eye. The report indicates you reported not remembering hitting your head but you remember before and after the event. You were referred to emergency for a CT scan.

3. Overview of WCB’s Position Statement on Concussions

Much of the medical evidence was considered in the context of whether the worker’s condition met the WCB’s criteria for establishing that the worker had suffered a concussion. For that reason I have chosen to consider the position statement at the outset of these reasons and then again when considering whether the criteria had been met.

The position statement is said to be an attempt to adopt uniform criteria to assist in the diagnosis of concussions arising in the workplace. It states in part:

The following criteria must be met to substantiate a diagnosis of concussion in relation to a workplace accident:

The application of a force to the brain of sufficient intensity, either from blunt trauma to the head, an acceleration or deceleration mechanism or exposure to blast that results in one or more of the following immediate manifestations:

• Observed or self-reported loss of consciousness
  • Observed or self-reported alteration in mental state at the time of injury, such as confusion and/or disorientation
  • Loss of memory for events immediately before or after an injury
  • The occurrence of an acute neurologic deficit.

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 statement notes that the terms concussion and MTBI (minimal traumatic brain injury) are used interchangeably in the statement.

The six literature references set forth at the end of the statement were, with one exception, all published at least six years ago. They were the Journal of Head Trauma Rehabilitation (1993); Centers for Disease Control and Injury (2003); WHO Task Force (2004); a National Academy of Neuropsychology Education Paper (2009); US Department of Veterans Affairs (2009); and the relatively recently published 5th Edition of the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (the DSM 5).

The WCB has consistently determined the criteria for establishing when a concussion has not been met.

4. Medical Evidence Subsequent to Initial Examinations on May 30, 2015

The nurse practitioner subsequently examined the worker on June 5, 2015. Her report stated that the worker’s subjective complaints were “feels intoxicated, confused, unable to concentrate.” Her objective findings were stated to be “slow thought process, appears confused, and staring blankly when questions asked.” She completed a referral for the worker to be seen by the Concussion Program at the Pan Am Clinic.

The nurse practitioner again examined the worker on June 14, 2015. The subjective complaints were stated to be “H/A, states thought process is slow, dizziness, sleep is disturbed.” The objective findings were stated to be “slow thought process, appears confused, neuro exam normal aside from above.” The report noted that the referral to the Pan Am Concussion Clinic was pending. The worker’s recovery was stated to be non-satisfactory.

The next day (June 15, 2015), the worker was seen at the Pan Am Concussion Program “for evaluation of a suspected concussion.” When examined by one of the program’s physicians, the worker complained of “concussion-related symptoms including: headache, dizziness, blurred vision, fatigue and drowsiness.” The worker was stated to be alert and cooperative. The consulting physician’s report stated that the physical examination appeared to be relatively normal, with the exception that

Near point convergence is 4 cm. Further testing of the horizontal and vertical saccades and vestibula-ocular reflex was abnormal … Cervical spine evaluation revealed paraspinal tenderness and decreased range of motion.

The consulting physician stated that the worker met “the clinical criteria for an acute concussion.” He recommended that the worker undergo cervical and vestibular physiotherapy for his difficulty with focusing and neck stiffness, and he noted that a referral to Sport Manitoba had been made. He recommended that consideration for an MRI brain should be given if the patient did not respond to physiotherapy within one month. He advised that a graduated return to work program, as tolerated, should be initiated, and that the worker should not be driving and consuming alcohol until he has recovered.

The initial program assessment form that was completed on that visit requested the worker to check all initial concussion symptoms that applied at the time of the event. The worker checked “headache, disorientation, dizziness, walking imbalance, feeling “foggy” or “dazed”, ringing in ears and neck pain.”

A physician at the walk-in clinic examined the worker on June 25, 2015. In terms of objective findings, she stated that “symptoms remain – seems some improvement.” The Progress Report of that date states the treatment plan as being

Patient seeing sports for life sport medicine treatment – receiving hourly sessions on scheduled days – to see again July 29th – to be off work until July 31. If symptoms improve significantly may be able to RTW sooner.

The nurse practitioner next examined the worker on July 30, 2015. Her documentation states that the worker’s subjective complaints at that time were “confusion, concentration difficulties, word finding difficulties [and] frustration.” Her objective findings were noted as “client having difficulty focussing on conversation, loses train of thought; wanders, has to close eyes to concentrate better.” The report stated that progress was not satisfactory and that worker “may be able to return to work Sept 1, 2015 but not likely as patient has had very slow recovery.” The report noted “pending consult with neuro-ophthalmologist done by Sports Medicine Clinic.” In the section dealing with Treatment Plan, the nurse practitioner advised “no driving, continue physio, practice physio exercises at home.” The worker was assessed as not being capable of alternate or modified work.

At some point, the treating physiotherapist sought to have the worker referred for assessment to a specialist (a Neurologist/Neuro-Ophthalmologist). The worker’s WCB file discloses that a WCB medical advisor had been consulted and on July 24, 2015, stated:

However, the WCB does not have an expedited services agreement with [that specialist] or any neuro-ophthalmologist and as such we are unable to expedite the consultation. The claimant sees a nurse practitioner – she could arrange the referral, if she feels it is appropriate.

The resultant specialist’s report of November 17, 2015, summarized the worker’s history and medical complaints related to his condition following the accident. It noted that an MRI of September 19, 2015, had not identified any significant abnormalities. The neurological exam appeared to be normal, with the exception that there was a mild convergence insufficiency (4 PD ET at near) and the worker had tenderness over his greater occipital nerve.

The specialist stated his “impression” as follows:

1. Ongoing complaints of visual slowing, dizziness, headaches, cognitive slowing, short term memory as well as depressive symptoms that started shortly after a work head injury at the end of May, 2015. He was diagnosed by the Concussion Clinic with an acute concussion on June 17, 2015.

2. We agree with the diagnosis of concussion and he now has post concussive syndrome. He has complaints in vision, headache, vestibular, cognitive and mood symptoms. His symptoms appear to be improving slowly. We see patients with symptoms lasting at least six months at times although they are not the majority. He has not been fully treated at this point.

The specialist’s recommendations included medication for the worker’s headaches, administration of greater occipital nerve blocks (one was administered at that appointment), evaluation of his cognitive and depressive symptoms, assessment by an ENT specialist for a formal vestibular investigation and inclusion in a research study for his vestibular issues, continuation of physiotherapy (with acupuncture) if found to be beneficial, and a follow-up in two months.

By letter dated September 29, 2015, the nurse practitioner referred the worker to a Community Health Centre.

In that referral she stated that the worker

Originally was on WCB [for a diagnosed concussion] but has since been cut off [because] he should have recovered by now. Currently awaiting EI. This stresses client greatly.

Client does not currently have a GP and is identified as a vulnerable person. Recovery from concussion has been minimal.

… Client experiences continual speech and thought difficulties. Experiences constant headaches. Cannot work. [Complaining of] decreased quality of life since the accident. [History] of depression which has worsened since the accident.

… Sees physiotherapy regularly since the accident. Has been followed through the Pan Am Concussion Program. Currently awaiting referral to HSC Psychology. Was also referred to Neuropsychiatry but has not heard anything yet.

… On exam client demonstrates significant slow speech. Speech is slurred on occasion. Appears confused and bewildered. PERRLA. The remainder of the neuro exam has always been normal.

The nurse practitioner concluded her referral letter by requesting that the Community Health Centre accept the worker into their care for “continued management of his post-concussion syndrome.”

On October 2, 2015, the WCB denied a request by the Sport for Life Sport Medicine Centre for further physiotherapy.

5. Physiotherapy Assessments and Referrals

There are five physiotherapy reports on file:

June 26, 2015 – Initial Assessment - The report reveals that the worker was initially assessed by physiotherapy on June 19, 2015. The report noted that the worker could not remember if he walked into or stood up into the hopper door of the then suspended street sweeper. The physiotherapist stated that the current subjective symptoms were “nausea with reading and movement, migraine like head pain, light and noise sensitivity. Feels he can’t … and hasn’t since the accident, blurred vision with reading. Having trouble falling and staying asleep. Top of head is continuously painful. Foggy all the time, trouble with word finding." The physiotherapist's diagnosis was stated to be post-concussion syndrome - primarily ocular involvement, WAD II. The form noted that a referral had been made to a neuro-ophthalmologist for a visual consult.

August 11, 2015 - The report states that the worker’s subjective complaints were light sensitivity, headache – top of head is still intense, dizziness ongoing and increased with faster movements, mentally foggy, difficulty remembering, blurred vision with trying to focus, [headache] H/A and dizzy while trying to read. The report stated that the worker had a post-concussion symptom scale of 67 and a dizziness handicap inventory of 90/100. It noted that the worker had been referred to an optometrist for a visual assessment.

September 10, 2015 – The physiotherapist stated that the worker’s current subjective symptoms were severe headaches – sharp pain, dizziness – positional and movement related, concentration difficulties, head pain with reading.

A home therapy program was provided. The worker was considered to be unable to perform alternate or modified work

September 30, 2015 – The physiotherapist stated that the worker’s current subjective complaints were “sharp temporal headache, goes behind R eye; memory – short term poor; unable to focus [on] near objects – causes dizziness – sharp eye pain, neck tightness into sub occipital headaches; word finding issues …” The physiotherapist’s diagnosis was stated to be a concussion with a strong visual component. The report suggested that the worker attend physiotherapy on a weekly basis. It stated that he was not able to perform alternate or modified work.

December 16, 2015 – The therapist stated that the worker’s subjective complaints at this point were headaches, dizziness, eye pain, slow processing, reduced ability to do shovelling and strenuous activity, vision therapy referral and ongoing prescriptions needed. The worker was stated to be capable of light office work. The report was a Discharge Assessment that gave, as the reason for discharge, that “WCB [had] not approved concussion treatment.”

In addition, a note to the worker’s file stated that on July 29, 2015, the case manager received a telephone call from the worker’s physiotherapist. She advised that she had been treating the worker for vestibular issues but that he had significant visual problems (more than she has ever seen) and that he would need to see a specialist. He has trouble with walking and gait and it's because of his visual issues. The physiotherapist suggested that the WCB use an optometrist with specialized visual assessment training in order to secure a timely appointment. She noted that there would be a cost to the WCB for such assessment.

6. Positions Taken by the WCB in Rejecting the Worker’s Claim.

On August 7, 2015, a WCB medical advisor provided an opinion in response to a request from WCB Healthcare. The documents that were relied on were the initial report of the nurse practitioner and the HSC physician, both arising out of their initial examination of May 31, the initial physiotherapy assessment of July 19, 2015, the July 24, 2015 consultation regarding lack of an expedited services agreement with neuro-ophthalmologist, and a memo of July 29, 2015 regarding the treatment recommended by the physiotherapist. The points made in the August 7, 2015 opinion were as follows:

1. A CT scan was not performed because the worker did not meet the Canadian CT Head Rule criteria.

The worker did not meet the WCB criteria to confirm concussion, in that

• The force involved would not be of the magnitude that brain injury (concussion) would be expected. This typically involves approx. 80 g’s of force…
• There were no immediate manifestations of disrupted brain function …The onset of symptoms such as headache, memory or concentration issues, dizziness, etc. some time after the accident do not confirm the dx of concussion if the other criteria are not met.
• The MOI [mechanism of injury] would most likely cause a head contusion at the site of impact. There may have been a mild whiplash injury to the head/neck which could result in a neck strain pattern of injury.

2. The worker presents now with nausea, headaches, light/noise sensitive, blurred vision, difficulty with sleep, foggy feeling, and word finding difficulty. These symptoms would not be related to a head contusion or neck strain. They have been presumed to be post-concussion. In the absence of a confirmed concussion in the workplace, they cannot be medically accounted for in relation to the C/I …

The worker still does have some loss of neck ROM and strength. That could be related to the neck strain.

3. A head contusion will cause localized pain and possibly bruising/swelling at the site of impact. It could cause temporary headaches, dizziness and nausea. All symptoms will resolve with time, typically over a few days. A neck strain will also cause localized pain and possibly headaches, dizziness and nausea. All symptoms will resolve with time, but it could take several weeks.

4. Physiotherapy is appropriate treatment for the neck strain. The head contusion will resolve without treatment.

Referral to an eye specialist would not be related to the C/I as there is no evidence of an eye or brain injury in relation to the C/I.

5. Full recovery from the head contusion and neck strain should occur fully within 6 weeks. During that time, gradual return to normal activity is therapeutic, such that by 6 weeks, the worker should be fit for full time regular duties.

On August 14, 2015, the same medical advisor reviewed a recently received Concussion Clinic report to determine if that report contained information that would change the foregoing opinion. It was the medical advisor’s view that it did not:

In the report, the doctor notes that the worker meets the clinical criteria for acute concussion. He is making this dx over 2 weeks after the accident. Symptoms of a concussion are immediate so the most accurate time to determine whether there was a concussion is right away. The doctor does not confirm the criteria he uses to confirm concussion. The WCB Healthcare criteria are provided in the HSR and the worker did not meet them. It should be noted that the criteria WCB uses are not made up by WCB but are based on review of current literature and are the same criteria used by such organizations as the CDC, Veterans Affairs and Rehabilitation Medicine. The hallmark of a concussion is that it is a brain injury and there must be immediate evidence of disrupted brain function. Based on all the information on file, this worker did not demonstrate immediate evidence of disrupted brain function. This dx is made retrospectively here based on his symptoms of headache, dizziness, etc. that were present some-time after the accident

The symptoms reported by the worker are very commonly seen in people who have never been concussed. Their presence do not confirm the dx.

Even if he were concussed, concussion recovery appears over a period of minutes to weeks. The ongoing symptoms months later would not be related to concussion recovery.

7. Consideration of the Review Office Decision of November 19, 2015

The Review Office decision concluded that that there was no entitlement to wage loss benefits beyond August 18, 2015. The reasons for that conclusion were as follows:

1. The Review Office preferred to place more weight on the WCB Healthcare Statement and the following medical information that was obtained in close proximity to the worker’s accident:

• Opinion of medical advisor dated August 7, 2015, wherein se opined that the worker did not meet the criteria to confirm a concussion, and her subsequent opinion dated August 14, 2015, wherein she advised that symptoms of a concussion are immediate, and that even if the worker were concussed, concussion recovery occurs over a period of minutes to weeks.
• Statement of medical advisor that the force to the worker’s head was not sufficient to cause brain trauma
• Conclusion that the worker did not have immediate manifestations of disrupted brain functions because he worked after the injury and on the day following the accident
• The September 19, 2015 MRI of the worker’s brain was normal.
• The worker’s compensable injuries would not have limited the worker’s ability to work regular duties beyond August 18, 2015.

8. Request by Panel for Additional Information following the Conclusion of the Hearing

It appeared from the worker’s testimony that the panel had not been provided with all of the medical documentation that was available. For instance, the worker testified that the neuro-ophthalmologist referred him to Riverview Health Centre for ongoing treatments (either magnetic or electrode-like) over a period of two to three months. The neuro-ophthalmologist also administered pain injections when he saw the worker every four to six weeks.

The worker also testified that he underwent visual therapy at his own expense, and that he had to discontinue that therapy in November or December of 2015 when he could no longer afford to pay for the treatments.

The worker advised that he didn’t have a doctor and that his care was being managed by the nurse practitioner and the neuro-ophthalmologist. His memory regarding these treatments was admittedly hazy. The panel therefore determined that a letter should be sent to the neuro-ophthalmologist to obtain any additional information that might be available. The letter that was sent on May 19, 2016 requested that the doctor provide a complete copy of the worker’s medical chart from November 17, 2015 onward, including handwritten notes, consultation reports, referral letters and diagnostic test results. He was asked to provide details of the worker’s entrance complaints and his examination findings on each visit. He was also asked to provide his medical opinion regarding the diagnosis and prognosis of the worker’s medical condition, along with the nature of the treatment that was provided to the worker and details of any future treatments.

The neuro-ophthalmologist provided reports that were, for the most part, simply a restatement of the reports that he had prepared on the occasions of his prior visits with the worker.  They were dated November 17, 2015, and January 14, January 29, February 12, May 9, and May 20, 2016.  Of interest is that the neuro-ophthalmologist's report of May 20, 2016 contained the statement that “the prognosis of patients with TBI is unclear. Although [a] majority of the patients improve over a few months some patients stay symptomatic for many years.”

9. Discussion and Conclusions

The issue of head injuries, and in particular, concussions, is one that has received a considerable amount of focus in the past ten years. While much has been learned, it is obvious that much remains to be discovered.

In my view, it is not the role of a panel such as ours to substitute our “medical diagnoses” for that of one or more of the medical practitioners who have assessed the worker. We are however charged with weighing the available medical evidence. Where appropriate, that may involve having to prefer the evidence of one practitioner over another. It may involve assessing whether the practitioner’s opinion is supported by the available evidence. And it may also involve assessing whether the practitioner or the WCB have relied on irrelevant considerations in making their determinations.

In my view, the WCB and the Review Office did not properly consider the available medical evidence. My reasons are as follows:

1. Both erred when they concluded that that the worker did not have a concussion because he did not meet the WCB criteria to establish a concussion arising from a workplace accident.

The WCB Position Statement on Concussions provides in part as follows:

The following criteria must be met to substantiate a diagnosis of concussion in relation to a workplace accident:

The application of a force to the brain of sufficient intensity, either from blunt trauma to the head, an acceleration mechanism or exposure to blast that results in one or more of the following immediate manifestations:

·        Observed or self-reported loss of consciousness

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

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

·         The occurrence of an acute neurologic deficit.

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 in the absence of the criteria listed above.

The statement notes that the terms concussion and MTBI (minimal traumatic brain injury) are used interchangeably in the statement.

The Position Statement on Concussions may be useful as a diagnostic screen, but it cannot define the parameters of a medical condition that would otherwise be compensable. The fact that a worker’s condition does not fall entirely within the WCB criteria cannot be the basis for conclusively dismissing a diagnosis of concussion. The position statement confirms that a worker’s post-accident symptoms, such as headache, dizziness, fatigue and/or poor concentration, including when identified soon after an injury, can be used to support the diagnosis of concussion in the absence of the foregoing criteria. The criteria are not therefore immutable.

Having said that, a careful review of the criteria and the evidence establishes that the worker suffered from blunt trauma to his head and that he reported an “alteration in his mental state at the time of injury, such as confusion or disorientation.” Further, he reported some loss of memory for events immediately before or after the injury. He testified that he advised the clinic on his initial visit that his speech was slurred, like he had been drinking. He also testified that when he had to fill out a form, print and sign, it wasn’t recognizable as his own writing. He couldn’t recall where he had been coming from immediately prior to the accident.

Based on the foregoing, it is my view that the criteria for establishing a concussion in the workplace have been met. The medical advisor was simply wrong when she concluded that there were no immediate manifestations of disrupted brain functions.

In arriving at that conclusion, I have also considered the following comments of the medical advisor or the Review Office that do little but cloud the determination:

(i) The statement that a CT scan was not performed because the worker did not meet the Canadian CT Head Rule criteria is not relevant when considering whether the worker was suffering from a concussion, and it suggests a lack of understanding of the role that diagnostic imaging plays in diagnosing concussions. CT head scans are not generally used to diagnose concussions but rather are used, where appropriate, to rule out other significant head injuries that might otherwise go undiagnosed.

Current medical literature suggests the use of CT scans should be limited to the emergency room setting to evaluate acutely injured patients in whom clinical signs or symptoms suggest the possibility of skull fracture or inter-cranial haemorrhage.

The Review Office subsequently made the same type of error when it concluded that weight should be placed on the fact that the September 19, 2015 MRI of the worker’s brain was normal. Once again, as with a CT scan, there is no medical research to support an assertion that a normal MRI is sufficient to rule out a concussion.

(ii) The statement that the worker did not meet the [WCB] criteria to confirm concussion, in that the force that was applied to his head would not be of the magnitude that brain injury (concussion) would be expected. This typically involves approx. 80 g’s of force …

No authority is cited for that proposition, and a statement of “what would be expected” is not sufficient to support a medical assessment. Had there been medical research to support that a particular level of G force would normally have had to be present to support a concussion diagnosis, then, for it to be considered, it should have been cited along with research statistics that revealed the extent to which the G force criteria had or had not been met in diagnosed cases of concussion. Of importance would be the number of diagnosed concussion cases where the G force did not meet the established diagnostic threshold. Further, even if there was evidence to support a G force criteria, this could only form one consideration in the diagnostic process, for to do otherwise would fail to recognize that there are almost always exceptions to any such broad criteria. 

Moreover, in the absence of accepted and replicable studies, how can one possibly opine on the amount of force involved in a collision with a suspended metal street sweeper and the top of a person’s head. It seems only logical to conclude that one blow is not the same as another, and that there would be a host of variables that would need to be considered.

Finally,  the criteria merely references the application of force to the brain that is sufficient to result in one or more of the referenced manifestations; which manifestations include observed or self-reported alteration in mental state at the time of the injury, including confusion and/or disorientation and loss of memory for events immediately before or after an injury. Those symptoms were clearly present in this case.

(iii) The statement that the worker did not meet the WCB criteria to confirm concussion in that there was no immediate manifestation of disrupted brain functions.

This statement is not supportable, for the worker did report alterations in his mental state at the time of the injury (confusion and disorientation).  He also reported a loss of memory for events immediately before or after the injury. See section 2 of this dissent. See also a note to file by a WCB adjudicator completed in connection with an interview of June 3, 2015, where the adjudicator stated that “the worker was getting really dizzy during our conversation. I advised him I had enough information to get his claim started.” 

The worker also reported that his speech was slurred and that his handwriting was unrecognizable as his.

The Review Office concluded that the worker did not have immediate manifestations of disrupted brain functions because he worked after the accident (i.e. until the conclusion of his shift approximately one hour later) and then on the day following the injury. That may be a testament to the injured worker’s work ethic, but it does not negate the symptoms experienced by the worker. There is no requirement that the disruption of brain functions continue for a specific period of time. Further, there was insufficient evidence to suggest that the disruption of brain functions didn’t continue during the day following the accident.

(iv) The statement that the worker’ symptoms could be explained by a neck strain pattern of injury effectively foreclosed the need to explore symptoms that were clearly consistent with a post-concussive diagnosis. The medical advisor’s opinion of August 7, 2015 acknowledged that the worker’s symptoms of nausea, headaches, light/noise sensitivity, blurred vision, difficulty with sleep, foggy feeling and word finding difficulty were consistent with a post-concussion condition rather than with a neck strain or whiplash injury. Nevertheless, the medical advisor dismissed that conclusion because of her view that the concussion criteria had not been met. In fact they had been, and the existence of these post-concussive symptoms, (which were not indicative of a neck strain pattern of injury) further validated the view that the worker had suffered a concussion.

(v) The medical advisor’s opinion of August 14, 2015 advised that the symptoms of a concussion are immediate, and that even if the worker were concussed, concussion recovery occurs over a period of minutes to weeks. She dismissed a subsequent evaluation from the Concussion Clinic which stated that the worker met the clinical criteria for an acute concussion. She did so on the basis that the diagnosis was made over two weeks after the accident.

The medical advisor stated that

Symptoms of a concussion are immediate so the most accurate time to determine whether there was a concussion is right away … The hallmark of a concussion is that it is a brain injury and there must be immediate evidence of disrupted brain function. Based on all the information on file, this worker did not demonstrate immediate evidence of disrupted brain function. This [diagnosis] is made retrospectively here based on his symptoms of headache, dizziness, etc that were present some time after the accident.

The medical literature does not support the general proposition that concussion symptoms are necessarily immediate or that a diagnosis need be made almost immediately after an accident. For instance, the material from the Mayo Clinic that was submitted by the Worker Advisor Office advises that some symptoms of concussion may be immediate or delayed by hours or days after the injury.

Moreover, there is no basis to unequivocally state that recovery occurs over a period of minutes to weeks. While the majority of concussions may resolve over a period of weeks, the literature suggests that some patients may experience concussion symptoms that last 12 months or longer. The fact that this worker’s symptoms have lasted longer than some is not a valid basis for concluding that he did not suffer a concussion or post-concussive syndrome.

The medical advisor had opined that even if the worker were concussed, “concussion recovery appears over a period of minutes to weeks. The ongoing symptoms months later would not be related to concussion recovery.” No authority was given for that statement and it cannot be said with any degree of authority that ongoing symptoms would not be related to concussion recovery.

Included with the worker's submission to Review Office was an excerpt from the 2008 Technical Report of the Research Directorate of Veteran Affairs Canada entitled Persistent Symptoms Following Mild Traumatic Brain Injury (MTBI) – A Resource for Clinicians and Staff.  It states that based on civilian experience, most people recover from a concussion within 7-10 days, and the majority by 3 months. At one year, a minority (of patients) report variable persistent symptoms causing various degrees of disability. In those with persistent symptoms, healing continues long after.

See also the medical opinion provided by the neurologist/neuro-ophthalmologist and date-stamped May 24, 2016, which noted that the worker was continuing to suffer post-concussive symptoms. This specialist noted that “we see patients with symptoms lasting at least six months at times although they are not the majority.”  He also noted that the worker had not been treated fully at that point.

The suggestion is that a “post-event diagnosis” lacks a degree of validity. There is no basis to support that proposition. Moreover it is curious to see that this was advanced in support of the WCB findings given that the worker has never been examined by medical personnel from the WCB, and that any diagnosis that they have made must necessarily be retrospective in nature.

It is clear that the worker’s symptoms were directly attributable to the accident. In that regard, the worker testified that there were no other intervening events that might explain his condition:

Q. Up until you injured your head on the day of the accident, were you suffering any symptoms that are similar to the ones that you suffered after the accident?

A. None whatsoever.

Q. And between the time that you injured your head on the day of the accident, and the time you sought out medical treatment, was there any other accident that occurred in the intervening time?

A. None.

The worker’s inability to work continued well beyond August 18, 2015. His condition precluded him from resuming his duties as an equipment operator, and his employer had no other work that could have accommodated his disability. He could not have worked beyond August 18, 2015.

Assessing the Medical Evidence

The worker has been diagnosed as having suffered a concussion by those who have been directly involved in his treatment. The initial diagnosis was that of a concussion, and that was confirmed by a specialist at the Pan Am Concussion Clinic on June 15, 2015 who diagnosed the worker as having an acute concussion. The treating physiotherapist was of the same view and sought to have the worker referred to a Neurologist/Ophthalmologist. The WCB advised that it could not assist in expediting such an examination and it suggested that the nurse practitioner who first examined the worker could arrange the referral if she thought appropriate.

When the worker was seen by a Neurologist/Neuro-Ophthalmologist in November of 2015, that specialist reported that he agreed with the original diagnosis of concussion and opined that the worker was at that point suffering from post-concussive syndrome. He noted that treatment had not been fully completed. His recommendations included medication for the worker’s headaches, administration of greater occipital nerve blocks (one was administered at the November 17, 2015 appointment), evaluation of his cognitive and depressive symptoms, assessment by an ENT specialist for a formal vestibular investigation and inclusion in a research study for his vestibular issues, continuation of physiotherapy (with acupuncture) if found to be beneficial, and a follow-up in two months.

The worker’s medical personnel had previously recommended that he undergo treatment for visual therapy. He did so until he was unable to pay for the treatment and it was discontinued in November or December of 2015.

It is noteworthy that there is not a single suggestion from any of these medical personnel that the worker had not suffered a concussion, that he was not suffering from post-concussive syndrome, or that he failed, in any way, to make a committed effort to achieve an early recovery. 

Where there are differing medical opinions, preference should generally be given to the opinion of specialized medical personnel who have been involved in the worker’s continuing treatment rather than to opinions expressed by a medical advisor who has never examined the worker and who does not appear to have any specific medical background or knowledge of the condition being treated. I adopt that approach. It is my view that the worker was at all relevant times suffering from a concussion or post-concussive syndrome and that he should have continued to receive wage loss replacement benefits beyond August 18, 2015.

The Decision Making Process

The Review Office decision of November 19, 2015 stated that “the decision making process starts with considering all the relevant evidence and assigning a weight (relative importance) to each piece. The weight of evidence must support the Review Office’s final decision as opposed to an alternative position. This standard of proof is known as the balance of probabilities.”

The Review Office stated that it had “reviewed the various medical evidence” and that it preferred” to place more weight on the WCB Healthcare Position Statement and the information obtained in close proximity to the worker’s accident. The Position Statement is essentially a screening mechanism and is not the type of evidence that would need to be weighed in assessing whether an onus had been met. Further, there is in my view no basis for preferring information obtained in close proximity to the accident over the medical opinions of treating specialists who are well versed in the field of concussions.

Disposition

It is my conclusion that the worker continued to have a loss of earnings capacity after August 18, 2015 that was attributable to the workplace injury that he suffered on May 28, 2015.

I would therefore have granted his appeal.

D. Kells

Presiding Officer