Decision #167/17 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to wage loss benefits after May 25, 2016. A hearing was held on November 21, 2017 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to wage loss benefits after May 25, 2016.
Decision
That the worker is entitled to wage loss benefits after May 25, 2016.
Background
The worker filed a claim with the WCB for an injury occurring in the workplace on May 19, 2016. According to the Worker Incident Report, the mechanism of injury was described as follows:
I was putting a freezer order onto a pallet. Boxes came off another pallet and fell onto me.
As a result of the accident the worker reported sustaining injuries to her head and back.
The worker sought treatment from a local hospital emergency centre and was diagnosed with a soft tissue injury affecting the cervical spine and right shoulder area. A diagnosis of a mild concussion was also reported. Diagnostic imaging did not reveal any significant bone, disc or joint abnormalities although some minimal pre-existing changes were noted in the mid-cervical area.
The worker initially sought both medical and chiropractic treatment for her injuries. According to reports submitted by the attending physician and chiropractor, the worker presented with a sprain/strain injury to her cervical spine as well as a concussion.
On June 7, 2016, the employer contacted the WCB and advised that the worker had returned to work on May 25, 2016 however only remained there for 3.25 hours. The worker then left work due to continuing symptoms.
A WCB adjudicator spoke with the worker about her status on June 13, 2016. The adjudicator indicated that he would have the worker's file reviewed by a WCB medical advisor and would then make a decision regarding the worker's further entitlement to wage loss benefits.
A WCB medical advisor reviewed the file on June 27, 2016. Based on his review of the file, the medical advisor noted that the worker reported that her symptoms had resolved by May 21, 2016. He further indicated:
The medical information closest in temporal proximity to the workplace accident is the May 19, 2016 hospital report, which describes an alert individual who was apparently clear and unrestricted in her thought processes, capable of providing a good history, with no amnesia of the workplace event, and with no neurologic abnormalities on examination. The later apparent decline in [worker's] memory, concentration, light tolerance and overall functioning is not medically accounted for in relation to the May 19, 2016 workplace accident, given that almost all of [worker's] symptoms had resolved by May 21, 2016.
On July 4, 2016, the WCB wrote to the worker to advise that she was not entitled to further wage loss benefits after May 25, 2016. In making this decision, the WCB relied upon the opinion provided by the WCB medical advisor.
The worker disagreed with the WCB decision to deny her entitlement to further wage loss benefits and on July 14, 2016, a request for reconsideration was submitted to the WCB Review Office. An employer representative participated in the appeal.
Review Office considered the worker's appeal and on October 11, 2016 determined that she was not entitled to wage loss benefits after May 25, 2016. In reaching this conclusion, Review Office accepted that the worker likely remained symptomatic as evidence did suggest some ongoing mild symptoms and discomfort which would be expected to continue for a period of short duration. However, Review Office expressed concern with the worker's reporting of severe worsening of symptoms upon her return to work on May 25, 2016 and on balance of probabilities determined that these could not be related to the workplace accident.
On April 5, 2017, the worker, with the assistance of a worker advisor filed an application to appeal with the Appeal Commission appealing the Review Office decision denying further wage loss entitlement after May 25, 2016.
Reasons
Applicable Legislation
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the 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 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 May 19, 2016. The worker is appealing the WCB decision that she is not entitled to benefits after May 25, 2016.
Worker's Position
The worker was represented by a worker advisor who made a presentation on behalf of the worker. The worker answered questions from the panel.
The worker's representative noted that the worker was injured at work on May 19, 2016 and initially returned to work on May 25, 2016 but was not capable of regular duties. She also noted that the worker did not have medical clearance for a return to work.
She noted that the compensable diagnoses are soft tissue neck strain and concussion. She said that the worker was first diagnosed with a concussion by a physician on May 25, 2016. As well, she noted the worker's chiropractor confirmed the worker's symptoms.
Regarding the delayed onset of symptoms the worker's representative referred to medical literature which indicated that concussion symptoms can arise within 7 to 10 days after the injury.
The representative noted that the worker saw a sports medicine physician on June 3, 2016 who did not recommend a return to work. The worker began a graduated return to work in June and was working full time by July 22, 2016.
The Worker described the accident which occurred when she was working in the freezer. She explained that 5 or 6 boxes fell from a shelf and hit her in the back from her waist up to head. She said her back started hurting and she felt nauseous. A co-worker got her water and then drove her to the hospital.
In answer to questions from her representative and the panel, the worker advised:
• when she was initially off work she was inactive generally, sitting on the couch and watching TV • upon her return to work on May 25 she became forgetful, had light sensitivity, was dizzy, shaky and nauseous • her duties included ordering product, organizing the product in the cooler, and checking the cooler • when she returned to work she started at 2 hours per day and increased her time by 2 hours each week. • by late August, early September she felt OK
Employer's Position
The employer was represented by an employer advocate and the employer's Abilities Specialist. The employer's representative submitted that the evidence on file did not support that the impact of injury was significant enough for the worker to delay returning to work. She commented that there was no objective, quantifiable evidence to support the worker's position that she had post-concussion syndrome. She advised that the employer relied upon the evidence of the WCB medical advisor who noted that the later apparent decline in the worker's memory, concentration and overall functioning is not medically accounted for in relation to the May 19, 2016 accident. She agreed with the medical advisor's position that the worker could have returned to regular hours with modified duties on May 25.
She noted that Review Office had identified some inconsistencies in the file and she questioned how the worker was able to drive with a head injury.
Analysis
The worker is appealing the WCB decision that she is not entitled to wage loss benefits after May 25, 2016. For the worker's appeal to be approved, the panel must find that the worker did sustain a loss of earning capacity as a result of her accepted 2016 claim after May 25, 2016. The panel was able to make this finding.
The panel finds, on a balance of probabilities, that the worker sustained a loss of earning capacity after May 25, 2016. The panel also finds that the worker is entitled to wage loss benefits until she had returned to full-time duties on July 22, 2016.
The panel attaches significant weight to the worker's description of the accident and the symptoms that she felt at the time and those that developed with the first 10 days. The panel also attaches weight to the Emergency Treatment Record from the local hospital, completed on the day of the injury, which indicated a diagnosis of soft tissue injury/mild concussion. This diagnosis was also supported by the treating physiotherapist, chiropractor and treating physician.
The worker's appeal is approved.
Panel Members
A. Scramstad, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, R. Lafrance
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 8th day of December, 2017