Decision #106/17 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his difficulties were not a consequence of the August 29, 2006 injury. A hearing was held on April 10, 2017 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for the worker's difficulties as being a consequence of the August 29, 2006 injury.

Decision

That responsibility should not be accepted for the worker's difficulties as being a consequence of the August 29, 2006 injury.

Background

The worker filed a claim with the WCB for a head injury that occurred at work on August 29, 2006. The worker reported that he was operating a grader and that he struck his head on the windshield when the grader came to a sudden stop. The windshield cracked and he suffered a concussion. The employer's accident report described the accident as follows:

Employee was operating grader, blade came down faster than expected which caused employee to bump his forehead on the windshield.

A Doctor's First Report dated August 30, 2006, noted that the worker complained of headache and vomiting. The diagnosis outlined was a concussion. When seen at a hospital facility on August 30, 2006, the diagnosis was also listed as a concussion. A CT scan of the brain dated August 30, 2006 identified no evidence of any intracranial hemorrhage.

On September 18, 2006, Rehabilitation and Compensation Services wrote the worker to advise that if he wanted to pursue his claim with the WCB, he was required to sign and date an MVA (motor vehicle accident) right of election form.

On September 18, 2007, the worker contacted the WCB to advise that he attended a physician on September 11, 2007 as he was having headaches. The doctor advised him that it may be due to his concussion and that he had a bone spur in his neck.

On October 17, 2007, the worker provided the WCB with details regarding the progression of his symptoms. The worker stated that his first migraine occurred the day after the concussion on August 30, 2006. He had a light headache when he woke up. The headache continued and intensified turning into a migraine. He tried to sleep but woke up every hour and vomited. Other symptoms included heavy nausea, lethargy, tiredness, and intense and constant pain in the right side of his forehead. On the second day, the pain turned dull and his entire upper neck was sore. It felt like his head was putting pressure on his neck. The migraine lasted two days.

Medical information was obtained from the treating physician dated November 12, 2007. The physician noted that the worker was seen in the ER on three occasions starting April 29, 2007 and he was seen at her office on April 23, 2007. The physician stated: "He has severe headache and neck stiffness and photophobia but no neurological abnormalities. My opinion is that this is post-concussion headache and weplash (sic), it happened after the accident during work. His headache is happening more often and is getting worse."

A CT scan of the brain dated April 20, 2007 showed no evidence of intracranial hemorrhage or infarction. There were no masses and no evidence of increased intracranial pressure.

On January 3, 2008, a WCB medical advisor noted that the worker experienced a headache with nausea and vomiting the day after his head injury on August 29, 2006 and that these symptoms can be consistent with a concussion. However, there was no documentation of the worker experiencing any further symptoms until April 20, 2007, when he presented to the ER with a headache. This was diagnosed as a migraine, based on normal bloodwork and a normal repeat CT of his head. The consultant stated "At this time, the diagnosis of post-concussion syndrome is uncertain. Recurrent headache can be due to many causes other than post-concussion syndrome, including migraine."

On February 20, 2008, the WCB medical advisor reviewed new medical information placed on the worker's claim file and stated:

The x-rays of the C-spine, done on September 4, 2007, shows minor degenerative spurring, but nothing of significance. [Worker] saw neurologist [name] on January 9, 2008. [Neurologist] opinion is that these are migraine headaches which may be triggered by the right-sided neck pains that [worker] describes.

Again, the temporal relationship of his symptoms is problematic. [Worker] initially had symptoms consistent with a concussion the day after his August 29 head injury, but then did not report any further, ongoing symptoms. The medical file gives no indication of any significant headaches or neck pain until April, 2007. [Neurologist's] consultation note specifically stated that [worker] has had mild right-sided neck pains since the second headache in April 2007, eight months after the initial injury. The fact that [worker's] neck pain and headaches only appeared eight months after his August 2006 injury suggests that these symptoms are not related to the C.I. [compensable injury] Though there are many triggers of migraine headaches described in the medical literature, including head trauma, it would be unusual for there to be such a significant gap of time between the head injury and the emergence of migraines.

On February 22, 2008, Rehabilitation and Compensation Services wrote the worker to advise that "Given the original diagnosis, recovery norms and the time that has passed since the compensable accident, the absence of medical treatment between August 30, 2006 and April 2007, we are unable to accept further responsibility for your concussion in relation to your August 2006 workplace injury."

On May 8, 2011, the worker appealed the WCB decision dated February 22, 2008. The worker stated that he was still suffering from post-concussion syndrome as a result of the accident that occurred in 2006. The worker stated he had evidence and letters from two doctors who agreed with him. The worker stated that the 2006 accident caused him long-term effects and he was now off work on disability.

In a decision dated June 13, 2012, Rehabilitation and Compensation Services advised the worker that the report from his physician dated May 8, 2012 was reviewed by a WCB medical advisor and it was felt that the new information did not provide any objective medical findings that would warrant a change to the decision.

On October 18, 2012, the Worker Advisor Office provided the WCB with new medical information to support a "direct correlation between [worker's] right sided head injury and his current right sided migraines."

In a decision dated November 2, 2012, Rehabilitation and Compensation Services advised the worker that the new medical reports provided self-reporting information about his ongoing difficulties and did not provide any medical findings to warrant a change to the decision made in February 2008. On May 4, 2013, the worker appealed the decision to Review Office and further medical reports from December 2011 to May 2013 were submitted for consideration.

On July 9, 2013, Review Office determined that the worker's difficulties reported as of April 2007 were not related to the compensable injury of August 29, 2006. Review Office stated that it reviewed the medical information from 2011 and 2012 but placed greater weight on the evidence in closest proximity to the workplace accident. Review Office found no material pain or headache type symptoms between early September 2006 and mid-April 2007 and it was unable to establish a causal relationship between the worker's current difficulties with chronic back and neck pain, chronic migraine headaches and myofascial pain to the accident of August 29, 2006. On January 13, 2017, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was held on April 10, 2017.

On April 13, 2017, the appeal panel requested prescription pharmacy receipts for Tylenol #3 that the worker received starting from 2007 onwards. The panel also requested medical chart notes commencing in 2006 from the worker's treating physician but were advised that the chart notes had been destroyed.

On May 3, 2017, the worker and his representative were provided with copies of the information that was submitted by the pharmacy regarding the worker's prescription receipts and were asked to provide comment.

On May 26, 2017, the appeal panel requested further information from the pharmacy as to the exact date when the worker filled out his first prescription for Tylenol #3. The following information was obtained and was shared with the worker and his representative:

"[Pharmacist] advised that he did an "active and inactive" search on [worker] and it showed that the first time he attended [drug store] in…was for a prescription on April 23, 2007 and it was for a topical cream prescription. The next time he attended was on August 24, 2007 for the Tylenol prescription. The last Tylenol prescription was on June 25, 2009."

On June 9, 2017, the panel met further to discuss the worker's appeal and rendered its final decision.

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.

The worker has an accepted claim for a workplace injury on August 29, 2006. He is appealing the WCB decision which denied responsibility for certain difficulties which he asserts are related to the compensable decision.

Worker's Position

The worker was represented by legal counsel who gave a detailed submission in support of the worker's appeal. The worker answered questions from his counsel and the panel.

The worker's representative noted that:

Obviously the denials to this point in time have been with regard to the temporal causal nexus between August 29, 2006 and what the Board has stated his next report of symptoms in about April of 2007. Secondly though, it’s not expressly addressed with regard to the relationship between the symptoms that are expressed in 2007, which were characterized, post-concussion syndrome with photophobia and migraines, to the events that occurred on August 29, 2006.

In answer to questions from his counsel the worker provided background information, including the following:

  • he had worked for the accident employer as a truck driver for approximately three months prior to August of 2006.
  • he had seen a chiropractor on July 26, 2006 for upper back and right shoulder problems
  • he did not suffer from suffer from headaches, from sensitivity or experience problems with vision, ringing in his ears or photophobia.
  • no family members suffer from migraines other than his mother who he recalled having migraines on two occasions.
  • he had not driven a grader before the day of the accident .
  • the grader was large, at least 3 steps up, had a bench seat and the cabin was glassed all around.

The worker described the accident as:

Oh, I was standing in the grader with the controls in my hands, that had to be my shoulder height to reach the control, and I was looking on the right side, putting the right side of the blade down. And as I turned to the left side to look on the left side to look at the blade again, that’s when the machine just stopped. And I hit my head on the windshield, and it sounded like, basically, a gun going off in the cab of the grader.

So I basically just turned the machine off, and I stopped for a few minutes, and I was kind of like seeing stars a bit, so I felt my head to see if there was any blood coming out. And there was no blood, no swelling, so, basically, I waited about two or three minutes, and then when I could feel that there was, kind of like a slight headache, but nothing much more, then I just kept going.

And it was until that night I started getting the severe vomiting and severe head injury, and ended up in the emergency room, because my daughter called the health unit, and they said that, they asked me if I had an accident the day before. And I realized, oh, yes, I did, hit my head on the grader. And then, so I went in and they diagnosed it with a, they diagnosed me with a severe concussion, and gave me the medication to try to relieve the pain in my head and stuff.

In answer to questions, the worker advised that when his head hit the windshield it made an oval spider web pattern in the glass about one foot in diameter.

The worker advised that after the incident he would see his family doctor about every two or three weeks to obtain prescriptions for Tylenol 3 which he took because of the headaches. The worker said that he always filled his prescription at the same pharmacy. He described the pain as always on the right side of his head. He also advised that he started wearing sunglasses after the accident due to photosensitivity.

The worker confirmed that he had been taking Tylenol continuously from September of 2006 through to April of 2007 for his injury. He also confirmed that he continued to have nausea and vomiting during this period.

The worker provided an update on his employment and medical condition after the accident. He advised that in 2009 he moved out of Manitoba. He has received various treatments, different medications and been prescribed special glasses. He attributes his current condition to his August 2006 workplace accident.

In answer to a question, the worker explained the difference between his migraines and headaches. He said:

That basically means I want to hide in a dark place, and my head is, like, extremely hot on the right side, and my eye hurts like as if there was hot water behind my eye, on my right eye. And, basically, the difference between a headache is, right now, it’s basically what I have all the time.

And a migraine basically occurs when it gets over stimulated, I guess my eye gets over stimulated or from the damage on the right side. And they say causes me to want to hide with the headaches. Like, basically, just, like any other person, I basically just have to live with it because they’re part of my life, like, my headaches are always there.

In answer to a question from his counsel regarding whether he had migraines in the period from August 30, 2006 until June 2007, he replied:

No, that would have been just headaches.

The worker denied providing information to medical practitioners and hospital staff that his headaches in 2007 and 2008 were other than continual since the accident.

In reply to a question from the panel, the worker advised that from the date of the accident into 2007 he continued to receive prescriptions for T3's and paid for them himself. He said he did not submit these to the WCB.

The worker's counsel submitted that the evidence is overwhelming that prior to August 29, 2006, the worker had a long history of employment, was strongly motivated to work, and, who after a significant injury, returned to work fairly promptly.

He submitted that looking at the evidence in its totality, it's patent that the worker was suffering a continuous expression of symptoms from August of 2006 through and past April of 2007.

Counsel noted that:

  • [worker's] constant symptoms, nausea, vomiting, headache, sound sensitivity, light sensitivity from August 2006 through April, and to the end of 2007, and obviously, since that date, contrary to the characterization by the Review Office that there hasn’t been a break in the symptoms.
  • It’s not a situation where there was, as of two days, three days after his hitting the head, they had no more symptoms, and then in April of 2007 that there was a sudden reappearance of symptoms of unknown etiology.
  • It’s important to point out that there has never been a suggestion, that I’ve seen in the documents that I’ve related, that there is any other cause, except for the August 29, 2006 accident for [worker's] symptoms.

The worker's counsel said that the symptoms, which are the subject of this appeal, are entirely consistent with injuries sustained on August 29, 2006.

The worker's counsel suggested that greater weight should be given to the opinions of the medical specialist who have assessed the worker more recently. He noted that these doctors are assessing the worker from the context of using the most modern testing techniques. The worker's counsel submitted that:

I would suggest strongly that you can’t ignore the progression and understanding with regard to closed head injury symptomology in the past decade. And that, to my mind, goes a long way to explaining the different conclusions.

In reply to a question about which medical conditions noted on file are related to the 2006 injury, the worker's counsel replied:

That’s a very broad generalization, but I will say, yes. I’m not seeing anything in them which is inconsistent with the injury mechanism, so everything with regard to the right paraspinal, the visuals, hearing, post-cognitive, post-concussion disorder, yes.

In a written submission received subsequent to the hearing, the worker's counsel submitted that:

The worker further submits that the weight to be ascribed to any opinions which do not consider the worker's continuous symptoms, post the blow to his head, and course of medication treatment would be minimal as these do not proceed on correct foundational information and are consequentially significantly deficient in their analysis of causality or severity.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether responsibility should be accepted for the worker's difficulties as being a consequence of the August 29, 2006 injury. For the worker's appeal to be approved, the panel must find that the worker continues to sustain a loss of earning capacity and requires medical aid benefits as a result of his August 29, 2006 workplace injury. The panel was not able to make this finding.

For the reasons that follow, the panel finds that responsibility should not be accepted for the worker's difficulties as being a consequence of the August 29, 2006 injury. The panel finds that the worker had recovered from the workplace injury and that he no longer has a loss of earning capacity or requires medical aid as a result of the injury.

The mechanism of injury is not in dispute. The panel finds that the worker was operating a grader which came to a sudden stop resulting in the worker hitting his head against the windshield.

The panel considers that the issue of continuity of symptoms is central to the issue before us. The panel's understanding is that the symptoms of a significant head injury would be continuous and not arise several months after an event. The worker was adamant that he suffered continuously from headaches and to a lesser extent from migraines after the workplace injury. He advised that he used T3's daily and would obtain a prescription, every two to three weeks, from his treating physician and would fill the prescription at the pharmacy located by the physician's office.

Prior to making a decision on this appeal, the panel sought information form the worker's treating physician and the pharmacy identified by the worker as the vendor which filled his regular prescription for T3 medication.

The physician's office was not able to provide the chart notes for the period; however, the panel notes that the information on the claim file is not consistent with the worker's positon. A letter from the physician dated 11/12/2007 indicates that the treating physician saw the worker on the following dates:

August 30, 2006 in ER at local hospital

April 29, 2007 in ER

April 23, 2007 in office

June 14 and 15 in ER

The physician also advised that the worker was sick and unable to work on the following dates:

July 26 and 27, 2007

September 3 and 4, 2007

October 24 and 25, 2007

The panel finds that the above information is not consistent with the worker's claim that he saw the physician every 2 to 3 weeks after the accident to obtain a prescription for T3's. The panel further notes that the pharmacy which was identified by the worker as the location where he filled his T3 (Ratio-Lenoltec #3) prescriptions was not able to provide a list of prescriptions provided in 2006 due to a 10 year record retention policy. However the pharmacy provided the records for 2007, 2008 and 2009. The records indicate that prescriptions were filled on the following dates in 2007 and on five dates in 2008 (450 pills) and two dates in 2009 (200 pills):

August 24, 2007 - 60 Ratio-Lenoltec #3

 November 8, 2007 - 100 Ratio-Lenoltec #3

The panel finds that the above information is not consistent with the worker's claim that he obtained this medication every two to three weeks after the August 2006 incident.

In reaching our decision, the panel also notes the following information on file which is inconsistent with the worker's claim of continuous symptoms since the date of injury:

  • the worker advised the WCB adjudicator on September 18, 2007 that he had headaches starting six months prior and that he attended the hospital and had a CT scan at that time.
  • a hospital report from April 20, 2017 noted that the worker complained of frontal headache and nausea. The triage report noted the worker woke up that day with severe nausea and vomiting. The worker was diagnosed with a migraine. The record does not indicate a history of headaches or migraines.
  • A note of an October 17, 2007 discussion with a WCB staff member indicates, in part:
    • 1st migraine occurred day after concussion on August 30, 2006: Clmt had a light headache when he woke-up. The headache continued & intensified turning into a migraine. Clmt tried to sleep, but woke-up every hour & vomited. Other sx: heavy nausea, lethargic, tired, intense/constant pain on the right side of forehead on 2nd day pain turned dull, entire upper neck was sore- felt like head was putting pressure on neck re: like carrying someone on shoulders & all the weight is on the neck. The migraine lasted 2 days. At noon on Aug. 30 clmt's daughter called the hospital & he was instructed to come to ER ASAP…
    • No further sx until:
    • 2nd migraine June 14 & 15, 2007. Migraine lasted 2 days, with exact sx as 1st migraine, TL: June 14 & 15….
    • clmt has also had minor light headaches, usually 1 headache every 1-2 weeks, starting approx.. 1week after 2nd migraine to present. Headaches were minimal & clmt did not think anything of them.
    • 3rd migraine - July 26 & 27 …
    • 4th migraine - Sept 3 & 4…
    • No migraines prior to DOA/concussion. 1-2 headaches per year prior to DOA. No previous concussions or head injuries.
    • treating physiotherapist on December 3, 2007 noted "constant headaches for last 6 months "

  • a neurologist reported that he saw the worker in January 9, 2008.  The report indicates that the worker reported having headache about six hours after injury which lasted for three days.  The worker reported that he had a similar headache about eight months later.

  • a WCB medical advisor memo dated February 20, 2008 which notes "The fact that [worker's] neck pain and headaches only appeared eight months after the August 2006 injury suggests that these symptoms are not related to the CI."

In making this decision, the panel attached greater weight to the contemporaneous evidence than to the medical reports provided many years after the workplace injury. The panel finds that the reports provided in closest proximity to the injury date do not establish a continual series of concussion symptoms. The panel finds the worker's evidence of continuous use of medication is not supported by the evidence on file and the evidence obtained through the panel's inquiry. The panel also finds that there is no plausible explanation for the absence or alleged incorrect recording of information which the worker claims to have shared with the medical providers. Overall, the panel finds the worker's evidence relating to continuity of symptoms is not accurate.

The worker's counsel submitted that the later reports should be given greater weight because the physicians were specialists, the testing techniques had improved, and the opinions of the early treatment providers were significantly deficient in their analysis of causality or severity. The panel, however, finds that the later opinions are based upon information which the panel finds is not historically correct regarding the continuity of symptoms from the accident.

At the hearing, the worker's counsel submitted that there is no other explanation for the worker's current condition but that it must have resulted from the worker's August 2006 workplace injury. As discussed at the hearing, the panel's role in an enquiry process is not to weigh a work versus non-work related cause, but to actually establish on a balance of probabilities a positive link between the worker's injury and his employment. The panel is not required to look for alternate causes.

On a balance of probabilities, the panel is not able to relate the worker's current medical concerns specifically the right paraspinal, hearing, post-cognitive, and post-concussion disorder to the August 2006 workplace injury.

The panel notes that a new diagnosis referenced at the hearing, relating to the worker's vision, has not been adjudicated by the WCB. The panel is unable to address this issue.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 17th day of July, 2017

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