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 after March 26, 2015 in relation to his compensation claim. A hearing was held on October 5, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after March 26, 2015.

Decision

That the worker is not entitled to benefits after March 26, 2015.

Background

On February 10, 2013, the worker drove his work vehicle into a ditch to avoid a vehicle that had abruptly entered his lane. File records show that the worker was wearing his seatbelt when the accident occurred. On February 10, 2013, the worker attended a hospital facility and the medical reports noted that there were no signs of a neurologic injury, no loss of consciousness and no evidence of a brain injury. The diagnoses outlined were soft tissue injuries, neck and back.

On March 20, 2015, Compensation Services wrote the worker to advise that he was not entitled to wage loss and other compensation benefits beyond March 25, 2015 as it was felt that he had recovered from his compensable injury and that there was no relationship between his current condition and the compensable injury of February 10, 2013. The adjudicator's decision was based on the following medical opinion expressed by a WCB medical advisor on June 11, 2014 (actual date is April 18, 2014):

"The worker's current physical presentation (low back and neck) is not medically accounted for in relation to the workplace injury of February 10th, 2013 now approaching 1 year 3 months remote…There was note of some left neck pain while in ER. There was note of no LOC [loss of consciousness]. Also no known head injury. The claimant did report contact of his face with the steering wheel but no facial or cranial injuries were identified. No abnormal neurological findings were documented, peripherally or centrally on examination and there were no neurological symptomatic complaints. The complete ER screening physical examination and radiology performed did not identify any structural injury to have been experienced. This either to the neck, low back, spine or extremities. The examining emergency physician detected some areas of subjective tenderness to palpation and suspected a likely muscle strain of the left neck and low back. No significant trauma would have been expected to have occurred as a result of [worker] driving off the highway into the center ditch and having the truck/trailer jackknifing without hitting any object with the truck and with coming to a stop in winter conditions. Some jostling of the body while seat belted and contained in a suspension seat would not have been expected to have produced any significant injuries."

The adjudicator also relied on the opinion that was expressed by a WCB psychiatric advisor following a call-in examination that took place on February 27, 2015. The adjudicator stated:

"The psychiatric advisor provided an opinion that there is no evidence to substantiate that a traumatic brain injury occurred and it was noted also that the opinion of another health care provider that a traumatic brain injury was experienced, is based on a line of reasoning that is entirely hypothetical, and is not substantiated based on the medical information available. The WCB psychiatric advisor went on to say that due to the reports of various symptoms and impairments, and conflicting and confusing aspect of the case, it is not possible to confirm the presence of any specific psychiatric disorder."

On June 26, 2015, the Worker Advisor Office submitted a report from the treating psychiatrist dated June 22, 2015 to support that the worker had not recovered from his workplace accident and that a relationship existed between the worker's current specific psychological diagnoses and the workplace accident.

In a decision dated July 24, 2015, Compensation Services determined that the specialist's letter and the August 15, 2013 MRI results did not constitute new information as both the opinion and the test results were already on file.

In a submission to Review Office dated August 12, 2015, the worker advisor stated there was credible medical opinion to support a relationship between the worker's psychological injuries and his workplace duties. In support of her position, the worker advisor stated:

• The worker was driving a semi at highway speed when he tried to avoid a car. The semi jackknifed, causing significant jarring actions within the cab that certainly had caused injuries to his head and neck and back and needed assistance to get out of the cab. The worker also reported to the WCB that he hit his face on the steering wheel and his lips began to swell. This evidence as a whole, supported that there was enough movement or force to the head and neck to cause a jarring injury that also affected the brain that resulted in psychological injuries.

• The worker developed symptoms of headaches, photophobia and blackouts. A report from a neurologist dated March 27, 2013 confirmed continued headaches and he questioned a diffuse axonal injury related to the workplace accident. The neurologist also reported symptoms of a psychological injury being post-concussive syndrome in his report of May 15, 2013.

• Although the WCB did not accept that the worker struck his head or lost consciousness to support a psychological injury, medical literature confirmed that these factors do not have to be in place to support a psychological injury.

• The MRI of August 15, 2013 reported the presence of an axonal injury.

• The treating psychiatrist report of July 22, 2015 confirmed the worker's psychological diagnoses of Post-Traumatic Stress Disorder, Post-Concussion Syndrome, Post-Traumatic Psychosis, Post-Traumatic Seizure Disorder and Generalized Anxiety Disorder. In his professional opinion, these neurological disorders were the result of the worker's compensable injury. He also made note of the August 15, 2013 MRI in support of his opinion.

• There was no evidence to support that the worker's seizures or other neurological disorders arose either from a previous accident or the result of a pre-existing condition. Clinical notes from 2009 confirmed that the worker did not have severe headaches or seizures or any other neurological condition or symptoms prior to the workplace accident. The first notation of headaches was two days after the February 12, 2013 accident.

• The "Notice of Suspension" of the worker's driver's license dated June 23, 2015 due to his blackouts/seizures placed the worker in a loss of earning capacity from his pre-accident duties.

On October 13, 2015, Review Office determined that there was no entitlement to wage loss benefits beyond March 26, 2015 as it did not find the worker had an ongoing loss of earning capacity in relation to the February 10, 2013 accident.

Review Office stated in its decision that it accepted the opinion expressed by a WCB medical consultant dated January 20, 2014 who stated:

A clear and detailed recall of the events prior, during, and after the accident I noted in [worker's] initial report to the WCB (Worker's Incident Report). This is indicative of the absence of post traumatic amnesia, and would be inconsistent with having suffered a significant head injury in the ci. [compensable injury].

In summary, while noting that the ci occurred at highway speeds, and there is self-report of [worker] striking his face or jaw on the steering wheel, there is no objective medical reporting to support that the accident mechanics involved a significant blow to the head or face. Indeed the ER report on the day of the ci indicates that there was "no obvious/palpable head injury."

Review Office noted that the WCB's psychological consultant and the worker's attending psychiatrist agreed on January 19, 2014 that: "We agree that psychotic illness can be an outcome following significant neurologic illness or injury but, this is not the case in this situation."

Review Office accepted the WCB medical opinion dated June 11, 2014 and the comments made by the WCB psychiatric consultant on March 2, 2015. Review Office stated that the diagnostic criteria to establish an Axonal Injury is basically the same as a concussion and that the WCB dismissed this as a possibility. The worker also underwent diagnostic testing and clinical assessments and there was no indication that a brain injury had occurred.

Review Office noted that the worker's psychiatrist felt the development of the psychological problems have a temporal relationship to the motor vehicle accident. Review Office indicated that a temporal relationship did not establish causation or entitlement to benefits.

Review Office concluded that the file evidence was not suggestive that the degree of disability, both psychological and physical, would relate to the original compensable injury. The worker's physiatrist on several occasions drew upon a possible or probable relationship in his reports without definitive evidence to support his conclusions.

On November 3, 2016, the worker advisor 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.

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 February 10, 2013. He is appealing the WCB decision that he is not entitled to further benefits after March 26, 2015.

Worker's Position

The worker was represented by a worker advisor. The worker advisor made a submission on behalf of the worker. The worker answered questions from the panel.

The worker's representative submitted that the worker is entitled to benefits after March 26, 2015, because he continued to suffer from the effects of his February 10, 2013 workplace accident and sustain a loss of earning capacity.

The worker's representative noted the accident occurred on February 10, 2013 when the worker was driving a semitrailer. She said that a vehicle came into his lane, cutting him off, causing him to slam on his brakes, he swerved to avoid the vehicle. This caused his trailer to jackknife, he went into the ditch, and the cab of the truck went airborne and slammed to the ground.

She said the worker reported he had his seatbelt on, his face hit the steering wheel, and his lips were swelling. This accident caused an injury to his neck and back. He also had left sided symptoms of left shoulder, left hip and left leg injuries.

She submitted that:

It is our position that from the description of the accident it supports that there was a significant force of acceleration/deceleration to the head and neck areas, with the seatbelt holding the upper body in place when the cab of the semitrailer slammed to the ground.

She noted that:

• the initial physiotherapist's report of March 6, 2013 reported the worker's symptoms included pain to the neck, left shoulder, lower back, left leg, headaches, decreased intolerance to activity, sleep disturbance, along with numbness to the left foot and hands. 

• upon the worker's return to Winnipeg, a hospital provided a diagnosis of post-concussion syndrome and a diffuse axonal injury. 

• a neurologist confirmed symptoms of left sided neck pain, shoulder pain, upper thoracic pain, headaches, along with photophobia and that examination findings were of marked tenderness of the left trapezius, cervical paraspinal and scalene muscles, with a diagnosis of post-concussive syndrome and myofascial pain syndrome. 

• a WCB medical advisor supported the diagnosis of post-concussion syndrome. 

• a psychiatrist report of February 25, 2015, provided confirmation of the diagnoses of psychosis, NOS, probably post-traumatic psychosis, post-traumatic stress disorder, and generalized anxiety disorder.

She said that an MRI which was noted to be normal, actually reported a diffuse axonal injury which is consistent with a head injury.

The worker's representative submitted that although the focus was primarily on the worker's psychiatric issues, the physical injuries also continued.

In reply to questions from the panel, the worker described the accident and the truck interior set-up. He said that he struck his head on the steering wheel and that his seatbelt did not prevent his head from hitting the steering wheel. He believes he hit his head twice, first the front and then the back. He said that a bottle came from the sleeper unit and hit the back of his head. It was between his head and the seatback.

When asked whether he lost consciousness. He said:

Yes, I did. I, it’s just happen, I don’t know how long it’s happened, but it’s just like I was, like, up and then when I’m on I seen I was in the ditch.

Regarding his loss of consciousness, he advised he was not unconscious for 10 to 12 minutes as previously reported, he said "probably it would be 10 to 15 seconds." He added that he hit his upper lip, it was swelling, and he had a headache.

The worker acknowledged that on his family's request he left Canada for treatment but that it did not help so he returned to Canada for treatment.

The worker advised that he attempted to return to work and that his accident employer accommodated him for 3 months but the return to work did not work due to his mental condition. He advised that his sleep pattern is bad and pain is always present. He said that he is currently working as a security guard.

He said that he takes medication which controls his symptoms but that if he stops the medication his symptoms slowly come back. He said that his "Blackouts are way better now." He advised that he continues to see a psychiatrist and sees a neurologist about his non-epileptic seizure but that his seizures are getting better. He also sees his family physician.

In answer to a question about how he was when he was taken from the truck, he advised that:

My back, my hip, and there was, like, my neck was hurting, pretty much hurting, but I have nothing in my head, like, no problem with that. This is starting after a couple months later, I guess, these headaches and these all stuff is coming. But before there was nothing, I was totally fine.

In reply to a question, the worker confirmed that he has sleep issues and denied that he had these issues before the accident. The worker's representative submitted that:

[Worker's] difficulties are related to his workplace motor vehicle accident, which was most definitely a high velocity accident when the cab of the semitrailer was airborne and slammed to the ground. This action, on a balance of probabilities, did have the acceleration or deceleration factors for the neck and head to support a mild brain injury and its associated symptoms…

It remains our position that the weight of [psychiatrist's] medical opinion should be valued and not dismissed, and benefits should not have been discontinued based on the WCB's psychiatrist one-time visit, in which he could not identify any psychiatric diagnoses.

Employer Position

The employer did not participate in the appeal.

Analysis

The worker is appealing the WCB decision that he is not entitled to further benefits in relation to his accepted accident of January 2013. For the worker's appeal to be approved, the panel must find that the worker sustained a loss of earning capacity and required additional medical aid benefits after March 26, 2015. The panel is not able to make this finding.

The panel has reviewed the worker's medical records from 2009 through to 2015 and found that many of the symptoms that the worker complained of and attributed to the 2015 injury were noted in the medical records provided by his family physician as being present prior to the injury:

• The worker reported at the hearing that "Sleep is the main issue." The panel notes that sleep problems or insomnia were reported by the worker to his family physician on September 28, 2009, October 13, 2009, and January 11, 2010.

• The worker's physician referred to neck and back pain in a report dated March 25, 2015. The panel notes that the worker had a CT of the cervical spine and lumbar spine on August 20, 2009. As well, a second CT of the worker's cervical spine was obtained on September 20, 2011 which suggests neck problems at that time. The worker also reported back pain to his physician from 2009 to 2013. His physician provided the assessment of "chronic back pain'.

The panel considers these to be pre-existing conditions and finds that the pre-existing conditions have not been aggravated or enhanced by the workplace accident.

In considering the relationship of the worker's current symptoms and particularly his psychiatric symptoms and the accident, the panel attaches significance to a January 22, 2014 Claim Note from the WCB Psychological Advisor which describes a discussion between the Psychological Advisor and the treating psychiatrist. It indicates:

There is no objective evidence that the claimant sustained a clinically significant brain injury or, any brain injury in the CI (compensable injury), I have reviewed this with [treating psychiatrist], and he indicated that as I was aware, a collateral informant had stated that the claimant had no history of a psychotic illness on a pre-injury basis, at least at that time the claimant was seen 3 years earlier.

[Treating psychiatrist] spoke to the apparent temporal connection between the CI and the claimant's subsequent psychotic mental health condition, and he indicated that he would do research on the possible connection between high velocity deceleration mechanism accidents and, psychotic illness onset and outcomes.

We agreed that psychotic illness can be an outcome following significant neurological illness or injury but, this is not the case in this situation.

The panel attaches significant weight to this Claim Note. The panel also attaches significant weight to the March 2, 2015 opinion of the WCB psychiatric consultant who concluded that he would not confirm the presence of any specific psychiatric disorder as being present in this case.

The panel concludes that for the worker's psychological/psychotic injury to be compensable as part of the worker's claim the worker must have suffered a significant brain trauma/injury in the workplace accident.

After a review of all the evidence and including the worker's evidence at the hearing, the panel is not able to find a causal relationship between the psychological/psychiatric condition and the workplace injury. The panel finds that the accident did not cause a head injury. In arriving at this conclusion the panel relies upon the following evidence:

• description of the accident in the Worker Incident Report does not indicate a blow to the head. The worker stated that he hit is face on the steering wheel and that his lip was swelling. There was no mention of a head injury.

• the report from the hospital at which the patient was treated after the accident indicated:

o Level of Consciousness: Alert: To person, To place , To situation 

o Glasgow Coma Scale (GCS) of 15/15 

o no mention of swelling of the lip or any injury to the head or face

• A March 27, 2013 CT of the brain indicated "No abnormality identified."

At the hearing the Worker's representative noted that the MRI of August 15, 2013 indicated that "…on gradient echo sequence a signal punctate area of decreased signal is present in the subcortical right frontal white matter which could represent a tiny remote axonal injury…" She submitted that the worker sustained an axonal injury in the accident. The panel notes that the axonal findings on the MRI were reviewed by the neurologist who is treating the worker's seizures and that he opined "There was no hemosiderin staining". The panel understands that this finding supports a conclusion that there was likely no tear or bleed on the worker's brain, and hence no head injury.

Given the panel's findings on the absence of a head injury, the panel is not able to attach weight to the treating psychiatrist's report which is based on the worker having incurred a head injury.

In conclusion, the panel finds, on a balance of probabilities, that the worker's difficulties after March 25, 2015 are not related to the worker's 2013 motor vehicle accident.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 8th day of November, 2017