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 benefits beyond December 16, 2014 as he was not suffering the effects of his workplace injury beyond that date. A hearing was held on August 23, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after December 16, 2014.

Decision

That the worker is entitled to benefits after December 16, 2014.

Background

On September 10, 2014, the worker filed a claim with the WCB for a head injury that occurred at work on September 5, 2014. The worker described the accident as follows:

I was working and the blade got stuck between the press and the blade lifted up and got stuck between the 2 tables. There was no more support and the blade came down on my head. The blade weighs 110 lbs. It was on its side when it hit me.

On September 11, 2014, a WCB adjudicator contacted the worker to discuss his claim where the worker advised that immediately after the accident, he experienced nausea, loss of vision for a moment, headaches and dizziness. When he returned to the hospital on September 10, 2014, he still experienced headaches, pain to the back of his head and neck and difficulty with sleeping. On October 2, 2014, the worker advised that he was still experiencing some dizziness, blurred vision at times and neck difficulties.

On October 23, 2014, the worker's file was referred to the WCB's healthcare branch to answer questions related to the worker's medical condition in relation to the September 5, 2014 accident. A response is on file dated December 3, 2014. In part, the medical advisor opined that based on the mechanism of injury and the hospital emergency room findings, the worker did not meet the WCB's criteria for the initial diagnosis of a concussion. The medical advisor noted that the likely diagnosis in keeping with the described September 5, 2014 mechanism of injury and the September 5, 2014 emergency physician's report was a contusion to the left side of the head, and a cervical strain. He said that contusions to the head typically resolve over the course of 1-6 weeks depending on the severity and that cervical strains typically resolve over the course of 2-8 weeks. The medical advisor referred to the November 20, 2014 physiotherapist's findings that the worker's left neck/shoulder symptoms had resolved.

On December 4, 2014, the worker was advised of the WCB's position that the diagnosis related to the September 2014 accident was a head injury and cervical strain/sprain and that the diagnoses of concussion and post-concussion syndrome were not related. Based on the accepted injury and the November 20, 2014 physiotherapy's findings, it was felt that his neck/shoulder symptoms had resolved. The worker was advised that wage loss benefits would be extended to December 15, 2014 in accordance with Policy 44.30.60, Notice of Change in Benefits or Services.

In a December 16, 2014 report, the family physician submitted that the worker continued to suffer with headaches and ongoing difficulties with memory and that these symptoms were consistent with post-concussion as a result of the head injury sustained on September 5, 2014. It was felt that the worker's symptoms precluded him from returning to work.

On January 14, 2015, a second WCB medical advisor opined to the file that the December 16, 2014 report did not provide any new information to change the previous opinion that the worker's presentation did not meet the WCB's criteria to confirm a concussion.

On September 14, 2015, the Worker Advisor Office submitted reports from a pain management specialist dated June 29, 2015 and a neurologist dated May 6, 2015 to support that the worker had evidence of cervical symptoms related to the September 2014 injury.

In a note to file dated December 22, 2015, the WCB case manager advised the worker by phone that the new information had been reviewed and that no change would be made to the previous WCB decision.

On January 6, 2016, the Worker Advisor Office asked Review Office to reconsider the case manager's decision that the worker had recovered from his compensable injury and was not entitled to further benefits.

On February 8, 2016, Review Office determined that the worker was entitled to benefits to December 16, 2014 inclusive. Review Office accepted the WCB medical consultant's comments dated December 3, 2014 that the post-concussion syndrome diagnosis was not related to the compensable accident. Review Office placed weight on the delay in the manifestation of the worker's concussion type symptoms and also commented that the treating neurologist did not provide any medical evidence to support the diagnosis of a concussion. The neurologist referred the worker to another doctor for injections into his neck to treat left-sided neck pain and left occipital pain. It was felt the worker suffered with post traumatic mechanical neck pain syndrome associated with cervicogenic headaches.

On a balance of probabilities, Review Office concluded that the worker was not suffering the effects of the workplace accident when the decision was made to end benefits on December 10, 2014. Review Office concluded that the worker was entitled to wage loss benefits to December 16, 2014 in accordance with WCB policy 44.30.60, Notice of Change in Benefits or Services. On May 18, 2016, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on August 23, 2016.

Following the hearing, the appeal panel requested a narrative report from the treating neurologist who saw the worker at a clinic in May 2015. A report from the specialist was later received and was forwarded to the worker for comment. On October 5, 2016, the panel met further to discuss the case and rendered its decision on the issue under appeal.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations, and policies of the 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's position is that he suffered and continued to experience head and neck symptoms related to the September 5, 2014 workplace incident.

Employer’s Position

The employer did not participate in the hearing.

Analysis

The issue before the panel is whether or not the worker is entitled to benefits after December 16, 2014. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's ongoing difficulties after December 16, 2014 were causally related to his workplace incident of September 5, 2014. The panel is able to make that finding.

Concussion / Post-Concussion Syndrome

With respect to the issue of whether the worker suffered from a concussion and is continuing to suffer from post-concussion syndrome, the panel must first establish that the worker indeed suffered a concussion while at work on September 5, 2014. The panel must therefore carefully assess the evidence as to what happened on the date of the workplace accident, and in the period that followed, to determine whether the worker did in fact suffer a concussion on that date.

The panel is assisted in this exercise by the criteria contained in the WCB's Healthcare Position Statement for Concussions (“Healthcare Position Statement”). While the Healthcare Position Statement is not binding on the panel, it is based on current thinking on concussions and provides sound guidance with respect to making this assessment. In sum, the relevant criterion in the Healthcare Position Statement require a mechanism of injury of sufficient force to the brain, either from blunt trauma to the head, or acceleration or deceleration mechanism, which results in one or more of the following immediate manifestations, namely:

• 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 panel finds that on a balance of probabilities that the worker does not meet the criteria of the Healthcare Position Statement. In that regard, the following passage from the WCB medical advisor's opinion dated December 3, 2014 is persuasive:

On September 5, 2014 [the worker] was struck on the left side of the head by a heavy steel blade. The force applied to the brain is an important criteria in determining the initial diagnosis of concussion, and must be of sufficient magnitude that it would lead to an immediate brain injury. Force applied by one object to another object is a function of mass x acceleration. While the amount of force imparted by the September 5, 2014 workplace incident could have been significant (as the mass of the blade was estimated at 150 lbs), the speed at which [the worker] was struck is unknown. Based on information currently on file the force applied to [the worker’s] brain on September 5, 2014 cannot be known with certainty.

Notwithstanding the above, the emergency room report provides clues to the severity of [the worker’s] initial head injury. Based on symptoms and signs including: i) no loss of consciousness, ii) no amnesia, iii) the clinical findings of a small hematoma of the left ear and iv) skin broken in “a few spots” (requiring no treatment), the Emergency Physician did not feel that [the worker’s] head injury was of sufficient gravity to warrant ordering a CT scan of [the worker’s] brain. This was the case with knowledge of [the worker’s] report of vision change for a few seconds, which in and of itself would not be sufficient for the diagnosis of concussion. The initial ER diagnosis was minor head injury and soft tissue bruising.

The panel equally notes that while some of the medical information on the file did seem to indicate that the worker had suffered a concussion. None of the information provided any medical evidence to support this diagnosis.

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

Compensable Injury

Notwithstanding the panel’s findings regarding concussion and post-concussion syndrome, the panel does find that the worker suffered another compensable workplace injury associated with September 5, 2014 workplace accident, namely a chronic post-traumatic mechanical neck pain syndrome with associated cervicogenic headaches.

These findings are described in the treating neurologist’s narrative report dated September 8, 2016, where he notes that he first assessed the worker on May 6, 2015 and on an ongoing basis, he states: “Based on the findings and history, his headaches were most consistent with cervicogenic heachaches related to the injury which had occurred on September 5, 2014”. The panel finds that same or similar findings were also noted by a pain management specialist on June 29, 2015, with continuity of symptoms reported by various healthcare providers from the time of the workplace accident and forward.

The panel therefore finds, on a balance of probabilities, that the worker is entitled to benefits after December 16, 2014.

The worker's appeal is allowed.

Panel Members

C. Monnin, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

C. Monnin - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 24th day of November, 2016