Decision #135/17 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her current head difficulties were unrelated to the workplace accident of May 31, 2016. A hearing was held on August 17, 2017 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to further wage loss benefits.
Decision
That the worker is entitled to further wage loss benefits.
Background
On May 30, 2016, the worker was taking product off a shelf when she fell backwards and struck her head on concrete and a pallet. The worker reported that when she tried to get up on her side, she got dizzy and fell on her face.
A doctor's first report showed that the worker attended for medical treatment on May 31, 2016 with complaints of headache, nausea, dizziness, sore local area on buttock, and slight neck stiffness. Examination findings included a 4.5 cm line abrasion on the crown of her head, occipital swelling/tender bruise. Range of motion of the neck was full, except for slightly limited flexion. The diagnosis outlined was mild whiplash and concussion, and bruised buttocks. In a medical certificate dated May 31, 2016, the treating physician reported that the worker was not fit for work that day, was fit for half days at work with certain restrictions on June 1, 2 and 3, and could return to full duties on June 6, 2016.
In a doctor's progress report for an examination on August 24, 2016, the treating physician reported that the worker's headaches had restarted and were not breaking.
On September 14, 2016, the worker underwent a brain CT scan which concluded: "No intracranial abnormalities are seen."
In a consultation report dated September 28, 2016, a neurologist reported that the worker had severe headaches which occurred several times per week. The neurologist opined that the worker's headaches were consistent with migraine headaches and cervicogenic headaches related to the head trauma sustained on May 30, 2016 while at work, where she had fallen and struck the posterior vertex region against a steel bar and concrete floor. There was no evidence of post concussive syndrome. The neurologist outlined a treatment plan which included a trial of injection therapy.
On October 5, 2016, the worker called the WCB to advise that she had been having headaches off and on, that on August 22, 2016 she woke up in the morning and had a headache, and that the headaches were in the same area as her original injury.
In a progress report dated October 5, 2016, the treating physician reported that the worker's headaches "settled for a short while, then back all on crown of head."
On November 16, 2016, the worker was seen at the WCB's office for a call-in assessment by a WCB medical consultant, who stated:
• The initial diagnosis appeared to be a chipped tooth and a mild head injury and abrasion.
• The current diagnosis appeared to be chronic daily headache.
• The mechanism of injury would not account for a "dent in the head" 5 weeks post-accident.
• No scalp or skull abnormality was reportedly identified on the September 14, 2016 brain CT.
• When the worker was seen on May 30, 2016 at the hospital ER, the triage nurse described a small abrasion over the occiput, with no active bleeding. There was no documentation of significant symptoms or findings over the crown of the head.
• The worker's headache symptoms appeared to have resolved by July 11, 2016 as per the family physician's August 24, 2016 progress report. It seemed they did not appear again until August 10, 2016, or one month later. The apparent absence of symptoms between July 11 and August 10, 2016 suggested that the headaches beginning August 10, 2016 were unlikely to be medically accounted for in relation to the May 30, 2016 workplace accident.
On December 9, 2016, Compensation Services advised the worker that following a review of her claim, it was determined that she had recovered from her workplace injury of May 30, 2016 (mild whiplash, head, buttocks and tooth injury) and her current symptoms and workplace restrictions were not related to her compensable injury. As a result, she was not entitled to wage loss benefits or medical treatment benefits from August 22, 2016 to the present. On December 21, 2016, the worker appealed the adjudicator's decision, stating that she believed the WCB did not take into account the information from her treating neurologist which said that she had severe migraines and cervicogenic headaches due to her injury.
On February 22, 2017, a memorandum was placed on file regarding a telephone conversation between the worker and a WCB review officer.
On February 23, 2017, with reference to specific file evidence, Review Office found that the worker was not entitled to further wage loss benefits as it was unable to establish a relationship between the worker's current head difficulties and the May 30, 2016 accident. On March 3, 2017, 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.
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 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 self-represented at the hearing. The worker made a presentation and responded to questions from the panel.
The worker's position was that she continued to have headaches as a result of her workplace injury, and is entitled to further wage loss benefits for the time she was off work due to her headaches and trauma. The worker submitted that her doctor let her go back to work too early. Although her headaches were still there, she thought she could manage and did not want to disappoint her employer. She returned to work full-time, but continued to experience bad headaches and blurred vision. Then, in August, her headaches came back with a vengeance; she woke up with the worst headache she had had and was unable to work for a while because it was bothering her so much.
The worker said that her headaches were constant in the days following her accident, and subsided a bit after that. They were not as bad in July as when the accident happened, but in August they flared up. The worker said that there was no period of time where her headaches were gone. They were always there, but were on and off, in the sense that the pain was sometimes worse than others. The worker noted that she has a dent in her head from hitting her head on the steel bar and concrete. She has an ointment which she puts on that area if it gets really sore, and this provides her with some relief.
The worker said that she started going to see a massage therapist once a week in January 2017, and her headaches started to subside with the treatment provided by the therapist. A letter from the massage therapist was submitted to the panel. The worker said that when working on her, the massage therapist would pay particular attention to her neck and head, and avoid the sensitive area around the dent. She said that ever since she started with the massage therapy, it has helped with her headaches, though she is still not 100%.
Employer's Position
The employer did not participate in the appeal.
Analysis
The issue before the panel is whether or not the worker is entitled to further wage loss benefits. For the worker's appeal to be successful, the panel must find that the worker suffered a further loss of earning capacity as a result of her May 30, 2016 workplace accident. The panel is able to make that finding, for the reasons that follow.
The panel notes that the worker was originally diagnosed by her treating physician with "mild whiplash & concussion, bruised buttocks" on May 31, 2016. The worker was subsequently evaluated by a neurologist, who opined on September 28, 2016, that he did not find any evidence of post-concussive syndrome. The panel accepts the neurologist's opinion in this regard, and is further satisfied, based on our review of the medical information on file, that the worker did not suffer a concussion or post-concussion syndrome as a result of her workplace accident.
The panel finds, however, that the mechanism of injury and the worker's symptoms were consistent with a mild whiplash injury, which was diagnosed the day after the accident, but went largely untreated.
The panel accepts the worker's evidence that she was still experiencing headaches when she returned to work in June 2016, that her headaches were milder in July but continued on and off through to August 22, 2016, when her symptoms flared and she went off work again.
The panel notes the continuity of the evidence that the worker was experiencing symptoms throughout this period of time supports that she had not yet recovered from her whiplash injury. The panel is further of the view that there is little reason to believe that the worker's symptoms would have improved during that time, given that she was working full-time, her job was not sedentary, and she was not receiving active treatment for the whiplash injury.
The panel places significant weight on the September 28, 2016 opinion of the neurologist that the worker's headaches were "consistent with …cervicogenic headaches related to the head trauma sustained on May 30, 2016 while at work…"
The panel is further satisfied that the diagnosis of whiplash is supported by the evidence that the worker's condition started to improve once she began receiving treatments for her neck from the massage therapist. The panel accepts the worker's evidence at the hearing that her headaches started to subside with those treatments, and her condition improved significantly to the point that it appears to have substantially resolved, and she is now only continuing treatment to maintain her current status.
Based on the foregoing, the panel accepts the diagnosis of whiplash as a compensable injury and finds that the worker had not yet fully recovered from that injury as of August 22, 2016.
The panel therefore finds that the worker had an ongoing loss of earning capacity as a result of her May 30, 2016 workplace accident and is entitled to further wage loss benefits after August 22, 2016.
The worker's appeal is allowed.
Panel Members
M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 13th day of October, 2017