The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") with respect to his compensation claim. A hearing was held on April 4, 2017 to consider the worker's appeal.

Issue

Whether or not the diagnosis of concussion should be accepted as being a consequence of the April 17, 2015 injury; and

Whether or not the worker is entitled to further benefits.

Decision

That the diagnosis of concussion should not be accepted as being a consequence of the April 17, 2015 injury; and

That the worker is entitled to wage loss benefits for April 20, 2015.

Background

The worker filed a claim with the WCB for a head injury that occurred at work on April 17, 2015 when he was thrown backwards off the jitney he was driving and hit the back of his head. The accident description was confirmed in the Employer's Accident Report dated April 21, 2015.

On May 30, 2015, a WCB adjudicator met with the worker to discuss his claim. With respect to the accident that occurred on April 17, 2015, the worker said he was driving a motorized jitney (forklift) at a speed of about 2 to 3 mph when the bottom of the jitney caught a floor drain cover. This caused the jitney to suddenly stop. He recalled being thrown from the jitney to a distance of at least 15 feet, with the back of his head hitting the concrete floor on impact. The worker advised that he did not lose consciousness and was not disoriented. He had immediate headaches and nausea, which he was still feeling. He started getting vision problems a day later. He was having sleep difficulties and would get irritable quite easily.

The worker explained that an optometrist described his visual symptoms to him as floaters. He did not have this condition prior to the incident. He noted that his eyes were increasingly sensitive to light subsequent to the incident. The worker said he had been using reading glasses, but never had problems with his eyesight before the accident. His last eyeglass prescription was in 2011. The worker said he was relating his vision problems to the accident, and was claiming the cost of an eye exam and eyeglasses.

A Doctor First Report dated April 17, 2015 noted that the worker complained of headache and pain at the crown of his head. The diagnosis outlined was a mild head injury.

On May 21, 2015, an eye specialist reported that the worker was seen on April 27 and May 14 for investigation of flashing lights in his vision. The worker reported a history of significant head trauma to the occipital region at work on April 17 following a fall, with subsequent impact on a concrete floor. The eye specialist stated: "Examination demonstrates normal ocular findings each eye; as such I speculate that his symptoms may be secondary to post-concussion syndrome. I am unaware as to the specific studies his family physician has ordered for this. In any event, he does not demonstrate an ocular etiology for his symptoms."

On June 15, 2015, a WCB medical advisor noted that the worker saw an eye doctor who noted no ocular etiology to account for the eye symptoms and speculated they were related to post-concussion syndrome. The eye symptoms were not documented by the treating physician. There were no clinical findings to the eye area.

The medical advisor noted that the picture on file showed a red, abraded area to the back of the head and the physician documented the abrasion. The physician noted tenderness about the abrasion, but no other head/neck tenderness. There was full range of motion and the neurological exam was normal. This presentation was consistent with a head contusion/abrasion.

The medical advisor opined that the medical evidence did not support that the worker sustained a concussion as a result of the workplace accident and the worker did not meet the WCB Healthcare Position Statement criteria to confirm concussion. Therefore, the presence of any post-concussion symptoms could not be medically accounted for in relation to the compensable injury.

In a letter dated June 30, 2015, Compensation Services advised the worker that his claim was being accepted for a head injury only, and the medical evidence on file did not support that he sustained a concussion as a result of the workplace accident. Any post-concussion symptoms could therefore not be medically accounted for in relation to his compensable head injury.

On August 20, 2015, a worker advocate submitted new medical information to support that the worker suffered a concussion as a result of his compensable workplace injury of April 17, 2015. On August 25, 2015, the worker was advised by Review Office that his file was being returned to Compensation Services to consider the medical information and provide a further decision.

On September 11, 2015, Compensation Services advised the worker that no change would be made to its previous decision. Compensation Services stated that they considered the medical reports dated April 17 and July 22, 2015, along with new information from the accident employer which consisted of notes taken by their health unit immediately after the April 17 incident and an accident investigation report. From the evidence on file, Compensation Services noted that the worker had no loss of memory resulting from the incident, was observed to be coherent at the scene of the accident, and did not complain of or self-report any signs of confusion or disorientation immediately after the incident. The information provided to the specialist on July 22, 2015 was not consistent with what was documented on the date of injury and in the acute phase of the injury. Compensation Services concluded that the medical evidence did not support that the worker sustained a concussion injury as a result of the accident on April 17, 2015.

On September 24, 2015, the worker's advocate wrote Review Office requesting reconsideration of the June 30 and September 11, 2015 decisions. On November 3, 2015, the employer's representative submitted to Review Office that there was no convincing evidence the worker sustained a concussion based on temporal reports. On November 9, 2015, the worker's advocate responded to the employer's submission of November 3, 2015.

On November 19, 2015, Review Office concluded that there was no causal relationship between the diagnosis of a concussion and the accident that occurred on April 17, 2015. Review Office's decision was based on its review of specific file evidence and its agreement with the medical opinion expressed by the WCB medical advisor. Review Office concluded that the medical evidence supported a compensable diagnosis of a head contusion, and that the worker was not entitled to further benefits.

On August 31, 2016, Review Office considered new information submitted by the worker's advocate which included a report from a neurologist dated March 17, 2016 and a letter from the regional health authority's chief medical officer dated April 13, 2016 regarding an emergency room visit on April 17, 2015. Review Office stated that it preferred the information that was available in close proximity to the April 17, 2015 compensable injury, and did not place weight on the statements and reports provided approximately a year later. It found the new information did not substantiate a relationship between the worker's current difficulties and the April 17, 2015 compensable injury. On September 13, 2016, the worker's advocate 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'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.

Under subsection 4(2), 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 assisted by a worker advocate, who made a presentation on his behalf.

The worker's position was that he sustained a concussion at work on April 17, 2015 and continued to suffer from concussion symptoms and related vision problems thereafter. The advocate noted that the worker was catapulted more than 15 feet through the air and landed on his head and shoulders. He did not remember being thrown or landing on the floor and did not recall all of the details. He complained of headaches and nausea and asked to go to the hospital.

The advocate submitted that the April 17, 2015 hospital report was not correct. No neurological examination was done at the hospital and the worker was simply monitored for four hours then sent home. The worker took the next work day off work, as he continued to experience vision problems, headaches, irritability and difficulty sleeping.

The worker saw an optometrist who described what he was experiencing as floaters. New glasses, with clip-on sunglasses, were prescribed, as the worker still had vision problems and headaches, as well as light sensitivity. In August 2015, he was prescribed new lenses as the earlier prescription was now too strong. It was submitted that the change in his eyesight from May to August could be related to his concussion, as he was reverting to his pre-injury state.

The worker was referred to a neurologist/concussion doctor who reported that the worker had all the symptoms of post-concussion syndrome. The neurologist assessed the worker and had no doubt that he was suffering from post-concussion syndrome or head trauma. It was submitted that more weight should be placed on the opinion of the neurologist/concussion doctor than what was reported by the employer's health unit. The advocate noted that the worker did not experience any other head trauma after April 17, 2015. While he has continued to improve, he still has vision issues.

The worker's advocate submitted that the medical literature does not support the general proposition that concussion symptoms are necessarily immediate or that a diagnosis has to be made almost immediately, nor does it support that an individual has to lose consciousness to have a concussion. It was submitted that concussion is very unique to every individual, and everyone experiences different symptoms. The worker reported experiencing nausea, repeated headaches, sensitivity to light, blurred vision, and being very irritable and tired, all of which were symptoms of concussion.

In conclusion, it was submitted that the worker did suffer from the symptoms of concussion and did have related vision problems as a result of his April 17, 2015 workplace accident. He was therefore seeking wage loss benefits (one day) and medical aid benefits, including reimbursement for all prescription eyeglass and other expenses.

Employer's Position

The employer was represented by an advocate. The employer did not dispute that the worker sustained a head injury or contusion at work. It was their position, however, that there was no convincing evidence that the worker suffered a concussion or that any difficulties which developed later were related to the workplace injury, and that the claim does not meet the criteria for the diagnosis of a concussion.

The advocate referred to information on file in close proximity to the incident, where it was reported that the worker did not lose consciousness, that he was not disoriented, did not exhibit any incoherence or complain of any confusion, did not feel dizzy or lightheaded, had no nausea and that his cognition was fine. It was submitted that all the reports documented similar findings, and the worker was diagnosed with a mild head injury. The advocate submitted that greater weight should be placed on the statements and evidence at the time of or in close proximity to the actual incident and injury.

The advocate noted that in his May 21, 2015 letter, the optometrist could only "speculate" that the worker's symptoms "may" be secondary to post-concussion syndrome. It was submitted that this was only conjecture, and was not based on any objective findings. The advocate noted that no eye symptoms or difficulties were reported by the doctor who examined the worker immediately following the incident.

It was further noted that the examination by the neurologist was over three months after the incident, and the worker provided a markedly different account of the injury at that point than had been provided initially. In spite of the fact that the worker's current neurological examination was normal and based solely on the account provided by the worker, the neurologist indicated that the worker met the criteria for and suffered from post-concussion syndrome.

The advocate noted that the WCB relies on the Healthcare Position Statement which, as indicated by the WCB medical advisor, is a standard approach that is used not just by the WCB but by others as well, and is based on extensive review of the literature on concussion. It was submitted that significant weight should be placed on the opinion of the WCB medical advisor that the claim does not meet the criteria in the Healthcare Position Statement. The advocate asked that the panel accept the medical advisor's assessment that the worker's presentation was consistent with a head injury, not a concussion, and that the presence of post-concussion symptoms therefore cannot be medically accounted for in relation to the compensable injury.

Analysis

Issue 1. Whether or not the diagnosis of concussion should be accepted as being a consequence of the April 17, 2015 injury.

For the appeal on this issue to be accepted, the panel must find that the worker sustained a concussion as a result of his April 17, 2015 workplace incident. The panel is unable to make that finding, for the reasons that follow.

In considering the evidence which is before us, the panel has chosen to use the concussion criteria contained in the WCB's Healthcare Position Statement for Concussions (the "Position Statement"). While the Position Statement is not binding on the panel, we are of the view that it is based on current thinking on concussions, and note that it is consistent with our understanding of the current literature on concussions.

Paragraph 4 of the Position Statement reads 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 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 Position Statement indicates, and the panel accepts, that there does not have to be a loss of consciousness for there to be a concussion. The Position Statement refers to four criteria or manifestations of a concussion, one or more of which must be established. Based on our review of the evidence, the panel is unable to find, on a balance of probabilities, that any of these criteria have been met in this case.

The panel carefully questioned the worker at the hearing with respect to the mechanism of injury and events at or around the time of the injury. The worker's responses to our questions showed that he was able to recall a significant amount of detail from that time. With respect to the accident itself, the worker said he remembered, among other things, being shot backwards and landing flat on his back, and the sound of his head hitting the floor.

Information on file includes health unit notes from immediately after the incident, where it was stated that the worker did not have any issues with speech or double vision, did not feel dizzy or light headed and had no nausea, that his pupils were equal and reactive to light, his cognitivity was fine and there were no concerns. The worker then went to the hospital, where he spent approximately four hours in observation and it was noted, among other things, that he did not have any neurological deficits. The hospital report further indicated that the worker was to return to emergency if any vomiting, confusion, vision changes, etc. occurred or if his headache worsened. There is no indication that the worker returned for follow up or any treatment in the days that followed. The worker returned to the workplace towards the end of his shift on April 17, where he was again assessed in the health unit and it was noted that he had a headache but no dizziness or other symptoms. While the worker has challenged the accuracy of various notations which were made in the April 17 reports, the panel notes that the reports contain similar findings by three different individuals and are consistent with other contemporary information on file.

At the hearing, the worker stated that when he left the workplace that night, he drove himself home, and fell asleep on the couch. When he woke up the next morning, his neck and shoulders were sore and he spent most of the weekend lying on the couch. His next shift was Monday, April 20, but he took an unpaid day off work as he was not feeling well; his neck and shoulders were still sore, he still had a headache, and his vision was foggy.

The worker said that he returned to work the next day. With respect to his work that day, he said that he "didn't feel comfortable driving the jitney…I was afraid of hitting my head again." He agreed that this was more due to fear. He drove the jitney for the entire shift. When asked about any problems in terms of job performance, he said he was a lot slower and was watching himself very carefully. While the worker said that he did his work cautiously, the panel is of the view that the nature of the work which the worker was performing nevertheless required that he be highly alert and well able to maintain his balance.

In reaching our conclusion on this issue, the panel places more weight on information provided at or around the time of the accident. In the panel's view, that information showed that the worker not only did not lose consciousness, but also did not suffer an alteration in his mental state, a loss of memory for events immediately before or after the incident or an acute neurologic deficit. The panel notes that the worker's evidence at the hearing further confirmed that he was able to remember details of the incident and of events immediately before and after that incident.

The panel recognizes that the worker reported symptoms of headaches, dizziness, fatigue and blurry vision. We are unable to find, however, that this was sufficient to establish a diagnosis of concussion, given the lack of evidence of any of the four manifestations or criteria which are outlined in the Position Statement.

The panel places significant weight on the June 15, 2015 opinion of the WCB medical advisor, who opined that the evidence did not support that the worker sustained a concussion as a result of the workplace accident, and that in the absence of a confirmed concussion in the workplace, the presence of any post-concussion symptoms could not be medically accounted for in relation to the compensable injury. The panel notes that the medical advisor reviewed the reported symptoms and their onset, and that her assessment and conclusion are consistent with our review and assessment of the information on file and at the hearing.

The panel is unable to attach weight to the July 22, 2015 and March 17, 2016 reports of the neurologist. The panel notes that the neurologist did not see the worker until more than three months after the accident. While the neurologist opined that the worker suffered from "a post-concussion syndrome (head trauma)" and that he did "fulfill criteria", his opinion is based on what the worker told him at that time regarding the history of the accident and his symptoms, and on the assumption that the worker had exhibited symptoms of a concussion immediately following the accident. The panel notes that the worker's description of those symptoms and events differs from what was reported at the time of the accident and shortly thereafter by the worker, the treating physician and several others, and there are no clinical findings in the neurologist's report to support the finding of a concussion and post-concussion syndrome. Again, the panel notes that given our earlier findings regarding the absence of a concussion, this removes any support for a subsequent diagnosis of a post-concussion syndrome.

The panel is also unable to place weight on the May 21, 2015 report of the optometrist. We note that the optometrist's report is based on the worker's report of "significant head trauma," and the optometrist's speculation, given normal ocular findings and in the absence of any other clinical findings, that the worker's symptoms might be secondary to post-concussion syndrome.

Based on our careful assessment of the mechanism of injury and of all the information before us, the panel finds that the mechanism of injury and the worker's symptoms are consistent with an abrasion and a mild head injury of short duration. The panel further finds, on a balance of probabilities, that the worker did not sustain a concussion on April 17, 2015. The diagnosis of a concussion should therefore not be accepted as being a consequence of the April 17, 2015 injury.

The worker's appeal on this issue is dismissed.

Issue 2. Whether or not the worker is entitled to further benefits.

For the appeal on this issue to be accepted, the panel must find that the worker suffered a loss of earning capacity and/or required additional medical aid as a result of his April 17, 2015 workplace incident. For the reasons that follow, the panel finds that the worker suffered one day's loss of wages, but is unable to find that the worker required additional medical aid as a result of the April 17, 2015 incident.

As previously indicated, the worker's evidence at the hearing was that he took an unpaid day off work on April 20, 2015, as his headache and the pain in his neck and shoulders had not resolved. The panel accepts the worker's evidence in this regard, and is satisfied that it is logical and reasonable that the worker would have suffered these symptoms from a minor head injury and that his absence from work on April 20 was related to his compensable head injury. The worker further stated that outside of that one day, he did not have any other time loss due to his April 17, 2015 injury.

The panel therefore finds that the worker suffered a loss of earning capacity as a result of his April 17, 2015 workplace accident, and is entitled to wage loss benefits with respect to his absence from work on April 20, 2015.

The worker is also seeking medical aid benefits, and in particular, reimbursement for prescription eyeglasses and related expenses. Given our previous finding that the diagnosis of concussion should not be accepted as a consequence of the April 17, 2015 incident, it follows that the worker is not entitled to such benefits as a result of that diagnosis. The panel is further unable to find, on a balance of probabilities, that the worker's problems with his vision were related to the workplace injury or that he required new eyeglasses or other medical aid benefits as a result of what was diagnosed and accepted as a mild head injury. The panel finds that the worker did not require additional medical aid as a result of the April 17, 2015 workplace accident.

The panel therefore finds that the worker did not require, and is not entitled to, additional medical aid benefits as a result of the April 17, 2015 workplace accident.

In summary, the worker is entitled to wage loss benefits for April 20, 2015, but is not entitled to further medical aid benefits.

The worker's appeal is allowed, in part.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 2nd day of June, 2017