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 symptoms were not related to her compensable accident and that she was not entitled to benefits after December 21, 2015. On January 12, 2017 a hearing was held at the Appeal Commission to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after December 21, 2015.

Decision

That the worker is not entitled to benefits after December 21, 2015.

Background

The worker filed a claim with the WCB for injury to her head and neck that occurred at work on September 18, 2015. The worker reported that she was hit from behind on her head with a child's water gun. The worker reported that she experienced headaches and neck pain and that she attended a hospital emergency facility for treatment.

The Employer's Accident Report stated that the worker was struck on the back of her head with a plastic water gun that appeared to be filled with water. The worker was uncertain if the child hit her or threw the gun and the gun hit her head.

Medical reports showed that the worker attended a hospital for treatment on September 18, 2015 and was diagnosed with a soft tissue injury. On September 23, 2015, the worker sought treatment from a physiotherapist and was diagnosed with a cervical and upper thoracic strain, concussion and headache.

On September 24, 2015, the worker advised a WCB adjudicator that a child hit the back of her head with a water gun. She immediately reported the incident to her supervisor and did not finish her shift. She had an immediate headache and neck pain and she went to the hospital for treatment. The worker said she did not vomit when the accident happened, but she saw stars and everything went black for a second. She had no memory loss.

On October 6, 2015, a WCB medical advisor reviewed the claim file at the request of initial adjudication. The medical advisor noted that the worker attended an ER on the date of accident with complaints of headache and neck pain. The only clinical findings provided were normal neck range of motion and minimal tenderness. The worker later had loss of range of motion of the neck and signs of spasm on x-ray. She opined that the initial presentation was most consistent with a head contusion and a possible neck strain. The medical advisor also opined that there was no evidence to confirm a concussion as per the WCB's Healthcare Position Statement on concussion. The worker was also considered fit to return to modified duties with specific work restrictions.

In a doctor's progress report dated October 16, 2015, it was reported that the worker complained of vertigo, headaches, and high blood pressure since the injury. The worker also had Post Traumatic Stress Disorder ("PTSD") from a prior incident.

In a memo to file dated October 20, 2015, the WCB adjudicator recorded that the worker was not at work and that she was experiencing ringing of the ears, light headedness, dizziness and headaches. The worker also had pre-existing clinical depression and hypertension.

On October 22, 2015, a WCB psychological advisor opined that the type of injury experienced by the worker would not meet Criterion A for PTSD.

In a decision dated October 22, 2015, the worker was advised that the WCB was not accepting responsibility for the PTSD diagnosis as it was not related to her compensable injury of September 18, 2015 based on WCB medical opinion.

In a memo to file dated November 17, 2015, the WCB adjudicator recorded that she spoke with the worker, and the worker claimed that her headaches were worse and that she awakes with excruciating pain in the morning at the base of her head.

On December 1, 2015, the worker was seen at the WCB's offices for a call-in medical assessment.

On December 14, 2015, the worker was advised of the WCB's position that her ongoing neck issues were not as a result of the injury she sustained on September 18, 2015, and in the opinion of the adjudicator, she had recovered from the effects of her compensable injury. The decision was based on the medical opinion outlined at the conclusion of the December 1, 2015 call-in assessment that: "Overall, the worker's presentation today is not concordant with what would be expected at two and a half months following a moderate force blow to the head, which did not result in a structural abnormality."

In a report dated February 3, 2016, a neurologist reported as follows:

[Worker's] posterior headache and neck symptoms are related to cervicogenic headaches. I suspect that the minor trauma significantly worsened her post traumatic stress symptoms and I believe that this is a major player in terms of a cause of trouble with her memory and cognitive issues. Hopefully with treatment of her posterior head and neck pain these symptoms will improve as well.

On February 19, 2016, the WCB adjudicator wrote the worker to advise that the new file information did not alter the decision of December 14, 2015.

On May 20, 2016, the WCB received additional medical information which included a report from a second neurologist. On May 27, 2016, the WCB advised the worker that the new information had been reviewed and the recommendations for vestibular therapy would not be related to the compensable diagnosis of head contusion and neck strain. Therefore no change could be made to the decision of December 14, 2015.

On May 31, 2016, the worker was advised that the WCB reviewed additional medical information that was submitted on May 30, 2015 which noted that her ongoing symptoms may be related to a post-concussion syndrome or an underlying vestibular component. It was the WCB's position that these conditions were not related to her original compensable diagnosis of head contusion and neck strain.

On July 20, 2016, a worker advisor wrote Review Office requesting reconsideration of the WCB's decision dated December 14, 2016. The worker advisor stated in part:

It is our opinion medical information supports [worker's] occipital nerve was aggravated by the September 18, 2015 injury and she continues to experience related symptoms. It is also our opinion medical information shows [worker] has developed vestibular symptoms in relation to the September 18, 2015 injury. The included articles discuss how head trauma can affect blood pressure causing symptoms of dizziness. It is our position the information as a whole, on a balance of probability, supports a relationship between [worker's] ongoing symptoms and the September 18, 2015 compensable injury. Therefore she should be entitled to additional coverage of benefits and services.

On August 22, 2016, the employer's representative submitted to Review Office that there was no evidence to support that the worker sustained a concussion or that the occipital nerve was aggravated at the time of the incident. It was felt that the likely diagnosis related to the mechanism of injury was a strain.

On September 12, 2016, Review Office confirmed that there was no entitlement to benefits beyond December 21, 2015. Review Office referred to the specialist who diagnosed occipital neuralgia but stated the specialist did not offer this as an independent diagnosis. The language in the specialist's report suggest he was unaware that the initial findings on the date of accident were described as minor in nature, and it was actually four days later that a possible concussion was first discussed by an emergency room physician.

Review Office noted that the specialist's conclusions were not given much weight, as his report included an incomplete prior medical history.

Based on the file evidence, Review Office concluded that the blow to the worker's head involved only minimal forces that would not result in a concussion or post concussive symptoms. Given the lack of clinical findings and period of time passed since the accident, Review Office determined that there was no further medical treatment required beyond that time. The symptoms described by the worker as being disabling could not be related to the contusion and strain injuries she sustained two and a half months earlier.

On September 22, 2016, the worker appealed Review Office's decision to the Appeal Commission and a 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 Board of Directors.

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

Subsection 27(1) provides that the WCB may provide the worker with such medical aid as the board considers necessary to cure and provide relief from a work 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 years.

Worker's Position

The worker was self-represented. The worker explained her reasons for appealing and answered questions from the panel.

The worker advised that she is a direct service provider and has worked on a contract basis since 2012. At the time of the injury, she was working 2 part-time days per week, looking after 3 children.

She advised that she and the children were outside and were heading back into the house when the incident occurred. She said the two older children went ahead and she was still outside with one of the children. She said:

So that was roughly 7:30. Roughly 7:30. And then I'm still chatting with her. And then suddenly I just feel there's something hitting my back. And I held my forehead and I closed my eyes, and I just see, like, fireflies, like, stars a few seconds. And when I opened my eyes and I look, and then I saw that water gun with a little, slightly dripping.

The worker advised that she was hit in the head and pointed to the area on the right side just behind the ear and above the hairline. She called the parent who arrived home near 9:00 P.M. She then drove herself to the emergency department at a hospital in a nearby community. Regarding her current medical condition, the worker advised that:

• she has high blood pressure but had this before the incident.

• she had 4 steroid injections by the neurologist, to treat headaches.

• she had acupuncture which relieved some pain.

• she has vertigo.

• she is currently receiving vestibular treatment which she stared in November 2016.

• she has cognitive issues with issues of forgetfulness.

• an x-ray shows a slight reversal of her cervical spine.

• her pain score is 3 to 4 out of 10 and she has lightheadedness.

• an ENT physician found she had reduced hearing

In response to a questions about a diagnosis of PTSD, the worker explained she had a past history of PTSD but that her current symptoms are related to the workplace accident. She stated:

The issue was that somebody hitting my head, that I was wide awake and just sweating, and somebody, like, hitting me, and I've reminded myself that … you are okay.

Regarding headaches, the worker advised that they are excruciating, 9 to 10 on the pain scale. She also said that her blood pressure is very high when she gets pain. She worried that she could have an aneurism because of the pain. She advised that currently her pain is 3 to 4. She advised that she also has issues with balance.

In answer to questions, the worker explained that it is her understanding that the right ear problem is caused by the impact to a nerve in her head. She advised that she has had vestibular treatments in November and December.

The worker was asked about the ringing sound that she reported hearing. She said that the ringing occurs very seldom.

The worker explained that she did not have a bleeding wound but had tenderness. She could not recall how long the bump or tenderness lasted. She advised that it is her understanding that she has a nerve irritation on her occipital nerve. She is receiving treatment from a neurologist for the occipital nerve problem in the form of steroid injections.

Employer's Position

The employer was represented by its compensation coordinator. The employer representative advised that the employer is of the view that the worker should not be entitled to any further WCB benefits beyond December 21, 2015.

In support of their position the employer representative noted that:

• a CT scan that was done of the brain on September 22nd revealed no evidence of any injury to the brain.

• emergency report at a hospital at the time indicated there was no loss of consciousness when she was hit, but noted she was complaining of headache and some mild neck pain.

• description at the emergency hospital was of some mild tenderness and the diagnosis was a minor head injury.

• on September 23, a physiotherapist's initial report diagnosed her condition as a cervical and upper thoracic strain and concussion.

• on October 6, a WCB medical advisor reviewed the file, evaluated the mechanism of injury against the concussion criteria, and provided an opinion that it typically takes about 80 Gs of force to produce a brain injury.

The employer representative submitted that:

Evaluating this situation against the four criteria, there was no loss of consciousness ever reported, there didn't appear to be any disorientation or confusion immediately following the incident because she did have the mental capacity to go through this process very methodically, there was no loss of memory, as her account of the events was detailed even days after it occurred, and there was no evidence of any neurological deficit.

The employer representative noted that by October 16 the worker's treating physician was reporting another diagnosis, which was post-traumatic stress disorder. He also noted that the WCB psychological advisor provided an opinion that there are no symptoms listed to support this diagnosis.

He noted the worker attended a call-in examination where she was found to have a normal neurological exam although there was evidence of pain behaviour. He also noted that she attended a neurologist who conducted a neurological exam where most of the testing was normal. He noted various other tests were conducted which were considered normal.

The employer representative submitted that:

We suggest to the panel that on a balance of probabilities a work-related concussion was not established, and as such it should follow that if a concussion hadn't been established, then the proposed post-concussion syndrome diagnosis is not an acceptable injury.

Analysis

The worker has an accepted claim and was paid wage loss benefits to December 21, 2015. The worker is appealing the WCB Review Office decision that she is not entitled to wage loss benefits after December 21, 2015.

For the worker's appeal to be approved, the panel must find, on a balance of probabilities, that the worker sustained a loss of earning capacity arising out of and in the course of her employment after December 21, 2015. The panel is not able to make this finding. The panel finds that the worker did not sustain a loss of earning capacity due to the accident after December 21, 2015.

The panel notes that the worker attended a hospital after the injury and complained of headaches and mild neck pain. The diagnosis provided at the time was soft tissue injury to the worker's neck and a minor head injury. After consideration of all the evidence on file, the panel finds that the initial diagnosis was appropriate. The panel finds, on a balance of probabilities, that the worker sustained a minor head injury and possible neck strain when hit in the back of the head with the toy gun.

The panel reviewed the medical information in the file and considered whether the information supports a finding that the worker sustained a concussion and resulting post-concussion syndrome. The panel concludes that the evidence does not establish that the worker sustained a concussion as a result of this injury and accordingly did not suffer post-concussion syndrome as a result of the injury. The panel finds that the WCB's concussion criteria have not been satisfied. The panel finds, from the description of the accident provided by the worker, that the force from the toy gun hitting her head was not significant. The panel notes from the medical and other information on the file that the worker did not sustain a loss of consciousness, has a full memory of the event and the activities after the event, and has no neurological deficit. A CT scan conducted shortly after the injury was reported as normal.

The panel accepts and places considerable weight on the opinion of the WCB medical advisor who examined the worker on December 1, 2015. The panel notes the medical advisor did not find evidence of a neurological injury and concluded that in these circumstances the worker should return to normal activity.

At the hearing, the worker spoke about the recurring significant headaches she experiences. The panel notes that the worker has also provided a history of headaches caused by a hereditary high blood pressure condition. The panel is not able to attribute the headaches to the workplace injury.

The panel notes that the worker has seen several physicians regarding her condition. The worker has seen and been treated by a neuro-ophthalmologist. The panel notes, with interest, that the neuro-ophthalmologist conducted various tests which were primarily normal. Regarding the injections provided by the neurologist, the panel finds that these are related to a nerve issue unrelated to the injury.

The panel also notes that the worker has complained of symptoms of vertigo. These symptoms were first referenced on October 16, 2015, one month after the work incident. The panel is not able to relate these late onset symptoms and treatment to the workplace accident.

After considering the totality of the evidence, the panel finds, on a balance of probabilities, that the worker is not entitled to benefits after December 21, 2016.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 14th day of February, 2017