The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her ongoing difficulties with vertigo were not related to the November 2014 accident and she was therefore not entitled to benefits after February 9, 2015. A hearing was held on July 21, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after February 9, 2015.

Decision

That the worker is not entitled to benefits after February 9, 2015.

Background

On November 12, 2014, the worker filed a claim with the WCB for multiple injuries she sustained on November 10, 2014 while employed as a registered psychiatric nurse. The worker described the accident as follows:

A patient was acting out and as I was trying to get some medication into her she grabbed my arm. Over the next two hours she grabbed both arms and shook me really hard. As the patient tried to bite me I twisted my wrist pulling it away. I never fell to the floor.

Medical reports show that the worker sought medical treatment following the accident and was diagnosed with strains to her neck and shoulders and scratches/bruises to her forearms.

On November 18, 2014, the worker spoke with a WCB adjudicator and confirmed the accident description as noted on the worker's accident report. The worker said she was grabbed and shaken very hard by the patient and had tenderness and bruising. She began to experience more symptoms later that evening. On November 11, her neck was very sore, she was very nauseated, felt like vomiting, and was unable to stand for any length of time. The worker also reported a fuzzy/ringing feeling in her right ear. A treating physician who examined the worker on December 1, 2014 reported in a Doctor First Report that she had neck pain and right side ear vertigo, pain to her shoulders and down both arms. The diagnosis was a cervical spine strain, right shoulder strain, and vestibular symptoms not yet diagnosed. The treating physician referred the worker to a physiotherapist specializing in vestibular therapy.

In a report to the WCB dated January 7, 2015, the physiotherapist stated, in part, "All of [the worker's] findings were consistent with an uncompensated unilateral vestibular loss on the right side which is a common occurrence during a concussion. There is also a cervicogenic component contributing to her discomfort as well as low back pain."

On January 5, 2015, the worker advised her adjudicator that she was at pre-injury status with respect to her injuries, but was still struggling with vertigo.

On January 14, 2015, the worker's file was referred to the WCB's healthcare branch to clarify which diagnoses were related to the November 10, 2014 accident.

On January 21, 2015, the WCB medical consultant opined as follow:

• The estimated initial diagnosis regarding the reported claim incidents of November 10, 2014 would be several small simple contusions of the left forearm, upper arm and some minor forearm abrasions. There was no evidence of any significant physical or patho-anatomic diagnosis for the neck and shoulder pain reported.
• There was no evidence of any immediate neurological symptoms of any kind produced with the claim reported incidents. There was also no evidence of any loss of consciousness, any head injury, concussion (as per the healthcare services position statement on concussion), or inner ear injury experienced by the worker with the incidents.

In a decision dated February 11, 2015, the worker was advised by the WCB that responsibility for her claim would end on February 9, 2015, as it was felt that her ongoing difficulties were not related to the workplace injury of November 10, 2014. The decision by the adjudicator was based on the treating physiotherapist's report of January 7, 2015 and the WCB medical opinion of January 21, 2015.

In a report to the WCB dated April 20, 2015, the treating physiotherapist stated:

There is a definite possibility that the right vestibular system got concussed during the shaking incident which occurred on November 10th, 2014. Her dizziness is definitely more exacerbated when turning her head to the right side. [The worker] did not have any

of these symptoms prior to the trauma. On clinical examination, I saw some catch-up saccade on the right sided head thrust testing which indicates some abnormality of the Vestibulo ocular reflex causing some hypo-function of the vestibular system on the right side.

In a submission dated May 5, 2015, the worker asked that the WCB reconsider its decision. On May 14, 2015, the worker was advised that the WCB had reviewed her May 5, 2015 submission and the correspondence from the treating physiotherapist, and that the additional information did not warrant a change to the decision of February 11, 2015.

In a submission to Review Office dated August 11, 2015, the worker's union representative indicated that the worker did not agree with the February 11, 2015 decision. She noted that the worker was still experiencing the effects of her diagnosed BPPV (benign paroxysmal positional vertigo) and the vestibular symptoms identified on the Doctor First Report. She noted that the worker never experienced these symptoms prior to the workplace incident. The union representative suggested that Review Office arrange a consult for the worker with a specialist to allow him to provide evidence.

In a submission to Review Office dated October 8, 2015, the employer's representative noted that the worker's work injuries were relatively minor in nature, and the medical evidence and opinion of the WCB medical consultant indicated that the worker had fully recovered by January 2015.

On November 12, 2015, Review Office confirmed that there was no entitlement to benefits beyond February 9, 2015. Review Office considered the file evidence, and in accordance with the WCB Healthcare Position Statement, did not find that the worker sustained a concussion at the time of her workplace accident.

With respect to the worker's contention that she sustained a right inner ear injury at the time of the accident, Review Office referred to the August 5, 2015 report of an ENT specialist, who reported that there were no clinical findings associated with an inner ear injury and test results were normal. The specialist noted that "[the worker] has had some intermittent dizziness and tinnitus. Her symptoms are certainly in keeping with either a concussion or possibly cervical vertigo related to a neck injury." Review Office stated that based on the mechanism of injury and the medical evidence in close proximity to the workplace accident, a more sinister diagnosis other than the minor injuries initially reported by the attending physician had not been established.

Review Office noted that the worker reported on January 5, 2015 that she was at pre-injury status with regards to her neck, shoulder and arm injuries, but was struggling with vertigo. In the absence of workplace causation, Review Office was unable to relate the worker's reported difficulties to the workplace accident.

On November 18, 2015, the union representative appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Subsection 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

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

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

Worker's Position

The worker was represented at the hearing by a union representative, who made a presentation on her behalf. The worker responded to questions from her representative and the panel.

The worker's position was that her vestibular problems and BPPV diagnosis were caused by her November 10, 2014 workplace accident and are compensable, and that she is entitled to benefits past February 9, 2015.

It was submitted that the force the patient used on November 10, when she shook the worker and when the worker was holding the patient's leg and trying to change her shoes, caused the worker's BPPV. The BPPV diagnosis was confirmed with specific testing, and was highlighted by the fact that treatment for the BPPV was effective. The symptoms of BPPV subsided once the correct diagnosis was made and the proper treatment applied.

The representative submitted that more weight should be placed on the opinions of the ENT specialist and treating physiotherapist, than on that of the WCB medical consultant. It was submitted that the WCB medical consultant did not have all the information. The representative noted that the employer erroneously indicated that the patient in question was smaller, and that this was not clarified. It was submitted that the WCB medical consultant was influenced by this erroneous information.

The worker, through her representative, acknowledged that she had not been diagnosed with a concussion. It was submitted, nevertheless, that her injury and definition met the definition of a concussion. She experienced nausea and dizziness the following day, and these symptoms were reported to the employer and noted by the physiotherapist. With reference to the criteria set out in the WCB Healthcare Position Statement, the representative acknowledged that the first 3 criteria were not met. It was submitted, however, that the 4th criterion, being the occurrence of an acute neurologic deficit was satisfied, in that the worker had vision changes, could not look at anything without feeling nauseous, and had dizziness and loss of balance.

The representative noted that the worker had sustained a significant work-related compensable injury resulting in a loss of earning capacity and a need for medical treatment which she did not receive because her injury did not meet the WCB's diagnostic criteria. It was submitted that the diagnosed vestibular injury which the worker sustained on November 10, 2014 should be included as part of the claim. It was further submitted that she continued to experience intermittent dizziness due to her compensable injury and should be entitled to benefits after February 9, 2015.

Employer's Position

The employer was represented by an advocate. The employer's position was that the evidence did not support that the worker's reported symptoms and disability after February 9, 2015 were due to her workplace accident and injury, and the worker was not entitled to any further benefits on this claim after that date.

The advocate noted that the employer acknowledged the worker was injured as a result of interacting with an aggressive patient on November 10, 2014. It was their submission, however, that the injuries as reported and diagnosed, including contusions and scratches, were diverse and fairly minor in nature, amounting at most to a strain/sprain. Any claim-related issues would have been expected to resolve quickly, and there were no clinical findings to support any disability related to the workplace injury beyond February 9, 2015.

It was submitted that there was no basis to accept a diagnosis of concussion. A concussion was never really diagnosed, and the incidents were not sufficient enough to cause a concussion. The advocate submitted that there was essentially no evidence to relate the worker's reported concussive-like symptoms to the November 10 workplace incident. The actual interaction between the worker and the patient was not traumatic enough to cause a concussion or concussive-like symptoms. The worker did not experience a loss of consciousness, head injury or impairment of neurological function immediately following her injury. The advocate acknowledged that the worker reported experiencing symptoms of nausea, but noted that in keeping with the WCB position statement, such symptoms can be used to support a diagnosis, but not to make a diagnosis of concussion.

It was noted there was no indication of any blow to the worker's head, and it seemed that the diagnosis of BPPV was being linked primarily to the worker having been shaken. In the employer's view, the incident of shaking was not traumatic enough to cause a head injury. Shaking may have resulted in strain/sprain types of injuries to the worker's shoulders and her neck, but was not enough to cause concussive-like symptoms.

In conclusion, it was submitted that there is no cause and effect between the worker's workplace injury and her symptoms, and the worker's ongoing disabling symptoms were not related to that incident at all.

Analysis

The issue before the panel is whether or not the worker is entitled to benefits after February 9, 2015. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's ongoing difficulties after February 9, 2015 were related to her November 10, 2014 workplace accident. The panel is unable to make that finding.

At the hearing, the worker provided additional evidence with respect to what transpired on November 10, 2014 and in the days that followed. The worker said that she had a long history of dealing with this patient. She described the patient as being approximately 10 to 20 pounds lighter, 3 inches shorter and 10 years older than she is. She noted that the patient had a one-to-one aide assigned to her while she was awake and her needs had to be assessed by visual cues. The one-to-one had to be someone who knew her well so that he or she could intervene and would know what to do to calm the patient. There were certain things they could try doing to calm the patient down when she was agitated and to de-escalate the situation, but these did not always work.

The worker described two incidents that occurred on November 10. The first involved an initial attempt to calm the patient down with medication. The second involved efforts to change the patient's footwear.

In describing the first incident, the worker noted that at the start of the morning shift, during morning report, even though the worker's room was a fair distance away:

You could hear that she was already yelling. So we left the office and went straight to see whether the one-to-one needed assistance or not. I tried calming her. I know I would have, knowing this resident as well as I did, I would have tried to calm her…

I do recall her grabbing me by both arms at the same time, and, pushing and pulling me back and forth, and trying to knock me off balance. I was, I mean, you would take a stance and she was able to push me from side to side and back and forth.

But she wasn't able to knock me off my feet at that point. The other nurse that was on that day was actually the one who came in with the medications and got her to take some medication.

The worker further stated that:

…she had taken hold of my arms. And I kind of went with it a little bit, and then she was trying to kick and then grab and bite, and do various things.

It was more of, and at that point, I think I was trying to draw her into me to hold her and hug her, because…she had calmed down prior to that when I would do that sometimes. Sometimes that works. Sometimes it doesn't. It all depends on what's going on in her head at that time….

I ended up with scratches…I had scratches on my arms from that part of the altercation…

The one-on-one would have constantly been there…

The second incident occurred later in the morning. The worker said that the patient had not responded well to anything they had tried during the morning, and she had noticed that the patient was holding her foot. She said that the patient had a history of foot pain which flared up when her shoes were too tight. Thinking that this might be the issue, the worker decided that they would try to change her footwear. The worker stated:

I was holding her leg and the healthcare aide was changing out the shoe. And she pumped her leg back and forth, and shook me with some force with that…

…the previous times where changing her footwear did help to calm her down, but this time it, nothing was working. But I did have a hold of her leg as she was sitting on her chair, and she was pumping her leg back and forth…while the other person was trying to change that shoe.

The worker described the footwear that they were trying to put on as a slip-on type which was closed on top and which the patient would slip her heel into. She noted that it had to be something that was familiar to the patient. Asked how this incident would have affected her neck, shoulders or head, the worker responded:

Immediately, I really didn't feel a whole lot…[T]here's a lot of adrenalin pumping…And I was distressed because she was distressed. I just wanted her to feel better.

The worker did not recall any other incidents where she was shaken back and forth or side to side that day.

In the course of the hearing, the worker confirmed that all of the other conditions related to her shoulders, arms and neck had resolved and were not an issue after February 9, 2015. The worker's position was that she suffered and continued to suffer after February 9 from BPPV or an "inner ear concussion" as a result of the November 10, 2014 workplace accident.

It was acknowledged that the worker had not been diagnosed with a concussion. It was submitted, however, that her injury and symptoms met the definition of a concussion.

The panel carefully reviewed the evidence as to what occurred on November 10, 2014, and in the period that followed, to assess whether the worker's injuries and symptoms met the definition of a concussion. In assessing the evidence, the panel applied the concussion criteria contained in the WCB's Healthcare Position Statement on Concussion. While that Position Statement is not binding on the panel, it is our understanding that it is consistent with the current literature on concussions.

The criteria to substantiate a diagnosis of concussion in relation to a workplace accident, as set out in the Position Statement are:

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.

The worker's representative had acknowledged that the first 3 criteria in the Position Statement were not met. It was submitted, however, that the 4th criterion, being the occurrence of an acute neurologic deficit was satisfied, in that the worker had vision changes, could not look at anything without feeling nauseous, and had dizziness and loss of balance.

Based on the contemporaneous evidence, the panel finds that the worker's injury and symptoms do not meet the definition of a concussion. In reaching that conclusion, the panel notes that the November 10 incidents did not involve the application of force or blunt trauma to the head, and the evidence does not establish that there was any immediate or acute neurologic deficit.

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

The worker relies on the diagnosis of BPPV or vertigo. The panel accepts that the worker has suffered from vertigo, nausea and dizziness. The panel is unable to find, however, on a balance of probabilities, that the mechanism of injury on November 10, 2014 would have resulted in BPPV or vertigo.

In this regard, the panel notes that the worker was very familiar with this patient, and her history of violence or acting out. The worker was very specific in her description at the hearing of the incident of shaking. While the patient grabbed her with both arms and tried to knock her off balance, the evidence indicates that the worker had braced herself and taken a stance so she could not be knocked off balance. The worker was in control of the situation and had faced it before. With respect to the footwear incident, the evidence indicates that the worker was hanging onto the patient's leg to stop her from kicking so that another person could change the patient's footwear. The worker was again braced and restraining the patient. In the panel's view, neither incident would have resulted in significant shaking. No other incidents were identified in which the worker was said to have been shaken or injured. The panel is unable to find that there is a sufficiently significant mechanism of injury which would account for the worker's vertigo.

In conclusion, based on our analysis of all of the evidence, on file and as provided at the hearing, the panel finds, on a balance of probabilities, that the worker's ongoing difficulties after February 9, 2015 were not related to her November 10, 2014 workplace incidents. The panel finds that the worker is not entitled to benefits after February 9, 2015.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer

Signed at Winnipeg this 15th day of September, 2016