The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was not entitled to wage loss and/or medical aid benefits after April 27, 2015 in relation to her compensable head injury. A hearing was held on July 26, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss and/or medical aid benefits after April 27, 2015.

Decision

That the worker is entitled to wage loss and medical aid benefits to July 13, 2015.

Background

The worker filed a claim with the WCB for a head injury that occurred on April 24, 2015 when she struck her head on a bunk bed while cleaning.

On May 26, 2015, a WCB adjudicator spoke with the worker's employer. The employer confirmed the injury date of April 24 and that the worker continued to work until May 4. The employer noted that the worker was losing her balance quite a bit after she hit her head, then hit her head again on April 27.

On May 27, 2015, the WCB adjudicator spoke with the worker to discuss her claim. The worker stated that she had been employed with the accident employer for 9 years. The worker confirmed that she struck the back of her head on the top bunk bed on April 24. She did not lose consciousness but it shook her up. She felt light-headed but continued to work. On April 27, she hit the front of her head cleaning a sink.

The file records were reviewed by a WCB medical advisor on July 13, 2015 and a WCB chiropractic consultant on September 3, 2015.

On September 21, 2015, the worker was advised that after considering all the file information, the WCB was satisfied that the events on April 24 and 27, 2015 met the definition of an accident. The WCB was therefore accepting her claim for a minor head injury.

The worker was further advised that the WCB was unable to establish the necessary link between the diagnosis of a concussion or post-concussion syndrome and an injury occurring at work, based on the low velocity/low energy head impact, the fact she did not experience a loss of consciousness, and the normal diagnostic testing completed on May 1 and May 12, 2015.

The worker was also advised that the WCB was unable to establish the necessary link between the diagnosis of a cervical sprain/strain and an accident occurring at work, given that the medical information in relation to her cervical spine revealed few clinical findings and was largely limited to a description of symptoms of a non-specific nature.

The worker was therefore advised that she was not entitled to medical aid expenses or wage loss benefits beyond April 27, 2015.

In November 2015, the treating chiropractor wrote the WCB and disagreed with the WCB's finding that the worker's head injury was minor in nature. On November 23, 2015, the WCB adjudicator wrote the worker to advise that the report from the treating chiropractor contained no new evidence to warrant a change in the previous decision. On December 1, 2015, the worker appealed the adjudicator's decision to Review Office.

On January 20, 2016, Review Office concluded that there was no relationship between the compensable head injury and the reported symptoms the worker continued to complain of beyond April 27, and there was no entitlement to wage loss or medical aid benefits beyond that date. Review Office's decision was based on the following findings:

• The worker's delay in seeking medical treatment.
• The worker was able to continue working following the onset of her injury, which would support that a relatively minor head injury occurred.
• Two CT scans of the brain, on May 1 and 12, 2015, demonstrated findings which were considered normal.

Review Office placed weight on the opinion provided by the WCB medical consultant, who stated in part:

From the information currently on file, it appears that [worker] has no significant visual or brain abnormality, beyond the anisocoria, the cause for which is currently unclear, but unlikely to be representative of significant pathology and unlikely to be related to the workplace accidents. The most likely current diagnoses appear to be anxiety plus/minus migraine headache, which are pre-existing and pre-accident in nature. The headache issue, first appearing more than 2 weeks post workplace incidents, does not appear to be medically accounted for in relation to the low velocity low energy head impacts described in the worker incident report.

Review Office also placed weight on the opinion provided by the WCB chiropractic consultant, who reviewed the treating chiropractor's reports and stated, in part:

The information is largely limited to a description of symptoms of a non specific nature with ubiquitous findings that do not define a distinct patho-anatomical entity.

On March 1, 2016, the worker 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 appeared at the hearing on her own behalf, and was accompanied by her husband. The worker filed a written submission in advance of the hearing. The worker made a presentation and responded to questions from the panel.

The worker's position was that she sustained a significant head injury at work, as a result of which her health suffered a great deal and she lost many months of work.

The worker described what transpired on April 24 and 27, 2015, and the period that followed. The worker said that she mostly works alone. On April 24, she was cleaning a room. She remembered making the bottom bunk, then striking the back of her head on the top bunk as she was getting up. She said it was very painful, but clients were waiting at the door and she continued working to complete the job. She finished the rest of her jobs that day, but did not feel like herself. She said she felt "wonky", which she described as not spinning dizzy, but not very balanced, and she had a bad headache.

She continued to work on April 25 and 26. She said that her hours vary greatly depending on what needs to be done, and she worked probably 2 to 3 hours on those days. She explained that she felt very obligated to work, as the employer was often occupied elsewhere and she was the only one there.

On Monday, April 27, the worker hit the front part of her head on a sink she was cleaning. She noted that this had never happened to her before at work. She said she experienced an instant headache and felt quite nauseated after hitting her head, but did not throw up. She finished her shift that day, but did not work for the rest of the week.

The worker said that on Friday, May 1, 2015, she felt quite light-headed and nauseated and went to the emergency department. It was noted that her left eye was dilated more than her right eye, and a CT scan was ordered. She said the emergency doctor told her she probably had a concussion and should be very careful. On May 4, she saw her eye doctor, and that same afternoon she told her employer that she could not return to work for the time being, and stopped working completely.

The worker pointed out that she made 16 trips to the emergency room between May 1, and August 29, 2015, and countless trips to her family doctor, her chiropractor and her eye specialist to seek help for her injuries. She noted that CT brain scans were ordered on two occasions, on May 1 and May 12, 2015. She submitted that these tests are very expensive and are not done unless there is great cause for concern. She added that even though the CT scans showed nothing, her symptoms continued to worsen.

The worker described her symptoms during this period of time. She said she had severe headaches, light-headedness and no appetite. She felt nauseated and unable to sleep. When standing for any period of time, she would have to hold onto things. She had ringing in her ears, her teeth would chatter, and she was no longer driving or doing normal things. If she tried to do simple things she had always done, like preparing a meal, she would get an instant headache.

Noting that some reports referred to her having symptoms of anxiety, the worker said that she agreed with this to a point, but submitted that it was understandable in the circumstances.

The worker submitted that with medication and good care, she started to feel some improvement toward the end of September or the beginning of October, 2015. By mid-October, she decided to challenge herself and returned to work and her regular duties, even though some things such as moving her head quickly or getting up too fast still bothered her.

Employer's Position

The employer did not participate in the appeal.

Analysis

The worker is appealing the decision that she is not entitled to wage loss or medical aid benefits after April 27, 2015. For the worker's appeal to be successful, the panel must find that the worker sustained a loss of earning capacity and/or required medical aid beyond April 27, 2015 as a result of her workplace injury. For the reasons that follow, the panel is able to find, on a balance of probabilities, that the worker is entitled to wage loss benefits and medical aid benefits up to and including July 13, 2015 based on a cervical sprain/strain injury.

The panel considered whether the worker sustained a concussion or major head injury as a result of these workplace incidents and whether the worker suffered from post-concussion syndrome. In considering the evidence before us, the panel used the criteria contained in the WCB's Healthcare Position Statement for Concussions. This is a recent document, and while it is not binding on the panel, it is consistent with our understanding of the current literature on the subject.

The criteria in the Healthcare Position Statement, as set out below, 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

There was no suggestion in any of the evidence that the worker suffered any loss of consciousness. The panel notes that in her initial conversation with the WCB adjudicator, the worker reported that she did not lose consciousness. The panel finds that this criterion has not been met.

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

There is no indication in the evidence that the worker was confused or disoriented on either occasion after hitting her head. Rather, she completed what she was doing and finished her shifts on both days. While she reported being light-headed and said she was dizzy, in the sense of being off-balance, there was nothing to indicate that there was any alteration in her mental state. The panel finds that this criterion has not been met.

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

There was also no suggestion or indication that the worker suffered any immediate loss of memory. The panel notes that in her evidence at the hearing, the worker was able to recall and describe in some detail what she was doing both before and after the two incidents. The panel finds that this criterion has not been met.

• The occurrence of an acute neurologic deficit.

The panel was not able to find medical evidence of an acute neurological deficit. The panel finds that this criterion has also not been met.

As none of the criteria for a concussion have been met, the panel is unable to find that the worker suffered a concussion as a result of the workplace incidents. It therefore follows that the panel is unable to establish that the worker suffered from post-concussion syndrome. The panel is further satisfied, on a balance of probabilities, that the evidence does not support a diagnosis of a significant head injury, as opposed to a minor head injury, as a result of the April 24 and 27, 2015 incidents. Based on the evidence, the panel is unable to find, on a balance of probabilities, that the worker continued to suffer a loss of earning capacity or required medical aid benefits after April 27, 2015 as a result of a minor head injury.

The panel notes that much of the treatment which the worker received following the April 2015 workplace incidents was related to issues she was having with her eyes. The evidence showed that the worker had been having problems with her left eye dating back to February 2015. Based on our review of all of the evidence, the panel is unable to find, on a balance of probabilities, that the worker's eye issues following the April 2015 workplace incidents were causally related to her workplace injury.

The panel does find, however, that the worker suffered a cervical sprain/strain injury as a result of the April 24 and 27 workplace incidents. In making this finding, the panel placed considerable weight on the September 3, 2015 assessment and opinion of the WCB chiropractic consultant who reviewed the file and opined that a cervical sprain strain was the likely diagnosis resulting from the mechanism of injury. The consultant noted, among other things, that the treating chiropractor's initial report offered a diagnosis of WAD II (whiplash associated disorder), the clinical equivalent of a cervical sprain and strain. The panel accepts the diagnosis of a cervical sprain/strain in relation to the worker's compensable injury.

The panel notes that file information shows that the worker underwent acupuncture treatment directed towards her sprain/strain injury following the April 2015 incident. The panel places weight on the notation in the July 13, 2015 treating chiropractor's chart notes that the worker had been able to perform some physical work outside in the yard over the weekend, which indicates that the worker's condition had significantly improved by that date, some eleven weeks after the April 27 incident. It is the panel's understanding that a ten or eleven week period for recovery would be consistent with a resolving cervical spine sprain/strain injury. The panel further notes that a July 6, 2015 CT scan of the cervical spine shows some degenerative changes but is otherwise essentially clear. Based on the evidence, the panel finds, on a balance of probabilities, that the worker's cervical spine sprain/strain injury had sufficiently resolved by July 13, 2015.

As a result, the panel finds that the worker is entitled to wage loss benefits and medical aid benefits up to and including July 13, 2015 based on a compensable cervical sprain/strain injury.

The worker's appeal is allowed, in part.

Panel Members

M. L. Harrison, Presiding Officer
C. Devlin, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer

Signed at Winnipeg this 21st day of September, 2016