Decision #35/18 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his ongoing difficulties were not related to his compensable accident. A hearing was held on October 12, 2017 to consider the worker's appeal.
Whether or not the worker is entitled to benefits after June 27, 2016.
The worker developed Somatic System Disorder. The file is returned to the WCB to adjudicate the entitlement to benefits arising from this condition.
On October 2, 2015, the worker filed a claim with the WCB for a work-related head injury that occurred on October 1, 2015. The worker stated:
I was on my (sic) to get a patient in an ambulance and I was sitting sideways. I had my elbows on my knees as I was sitting. The driver hit a pothole and I hit my head on a metal frame of the ambulance.
The accident was witnessed by two co-workers. The worker noted that he was diagnosed with a concussion and that he suffered from continuous headaches and was having problems with his memory. He had no symptoms of nausea.
The Employer Accident Report dated October 5, 2015 confirmed that the worker hit his head on the ambulance structure when the ambulance hit a pot-hole. The worker reported that he started to experience headaches and decided to go to the ER department after transporting the patient. After undergoing a CT scan, the worker was told to stay off work until Monday, October 5, 2015 by the ER doctor. The employer report indicated the employer had not been provided a diagnosis.
When seen by his family physician on October 5, 2015, the worker reported "Global headache building up past 3 days, worse this morning, says thought processing is slower, difficulty finding words, upper back pains seen in ED 4d ago, CT head normal, no nausea, vomiting, weakness or numbness since accident, on no meds. Patient is asking for a sick note." The diagnosis was "head injury/concussion."
On October 26, 2015, a WCB medical advisor reviewed the file information which included reports from the hospital ER department. The medical advisor noted that the medical evidence substantiated no loss of consciousness, confusion/disorientation (or other alteration in mental state), loss of memory, or other acute neurologic deficit immediately apparent at the time of the injury and that the WCB criteria for the diagnosis of concussion had not been met. The likely diagnosis associated with the compensable injury was one of a relatively mild blunt head trauma.
On November 3, 2015, the WCB medical advisor further stated: "Material symptomatic recovery from a minor blunt traumatic head injury with no associated soft tissue injury (eg. Laceration/hematoma) would be a(sic) anticipated over a period of a few days. A material functional impairment would not be anticipated during recovery."
Based on the WCB medical opinion, the worker's claim was accepted for a mild blunt head trauma.
In a report to the WCB dated November 17, 2015, the neurologist stated:
…this note is to confirm that [worker's] symptoms all began shortly after he struck his head inside the ambulance in which he was riding on 1 October 2015. There is no doubt in my mind that this injury is the cause of his acute postconcussive symptoms.
On November 19, 2015, the file was again reviewed by the WCB medical advisor based on new medical information and a statement from a co-worker who witnessed the accident. The medical advisor opined that there was no new evidence to substantiate a change in the previous opinion that the WCB criteria for a concussion diagnosis had not been met.
Further medical reports were submitted by the treating neurologist dated December 22, 2015 and March 15, 2016. On March 29, 2016, the worker was seen for an assessment by a neuropsychologist and by a WCB psychiatric consultant on May 16, 2016. A medical report is also on file dated September 6, 2016.
On June 20, 2016, Compensation Services wrote the worker to advise that after a review of his claim, it was determined that he had recovered from his work injury and that wage loss benefits would end on June 27, 2016. The letter stated, in part:
The WCB medical advisor noted that in the report from [neuropsychologist], there were several inconsistencies noted on a variety of tests designed to test concentration, intellectual function, and memory.
[Neuropsychologist] report also noted an unusual variation between the Wechsler Adult Intelligence Scale - Fourth Edition and the Wechsler memory Scale - Fourth Edition noting that your abilities were significantly higher than test results would indicate.
The WCB medical advisor also noted from [neuropsychologist] report that the Woodcock Johnson test of achievement results were on par with those of an individual who had suffered a severe head injury and would not be accounted for by the injury that you sustained. The neuropsychologist concluded that the vast majority of deficits noted on testing were unexpected and it was difficult to attribute the bulk of those deficits to your workplace injury.
The WCB medical advisor also provided an opinion from the call in exam that the symptoms of headaches, including spike headaches, sensitivity to light are all subjective and cannot be quantified on an examination.
On October 11, 2016, a worker advisor, acting on the worker's behalf, appealed the decision that the worker was not entitled to wage loss benefits past June 27, 2016. The worker advisor referenced medical reports on file to support that the worker suffered a concussion at the time of his workplace accident and was still suffering from post-concussion symptoms resulting in an ongoing loss of earning capacity. It was submitted that the symptoms experienced by the worker would make practicing nursing difficult and possibly unsafe and that the worker's wage loss benefits should be reinstated until he was medically fit to return to work.
On October 20, 2016, it was determined by Compensation Services that the medical reports dated September 6 and September 15, 2016 provided no new medical evidence to warrant a change to the decision dated June 21, 2016. On November 1, 2016, the worker advisor appealed the decisions of June 20 and October 20, 2016 to Review Office.
On December 29, 2016, Review Office determined that the worker was not entitled to benefits beyond June 27, 2016.
Review Office referred to the criteria used by the WCB to substantiate a diagnosis of concussion and was unable to conclude that the worker suffered a concussion at the time of the workplace accident. Review Office accepted the comments made by the treating psychologist of February 26, 2016 and the opinion of the WCB psychological consultant dated May 16, 2016. Review Office concluded that the worker had been diagnosed with a condition that was unrelated to the workplace injury and his ongoing difficulties were not a result of the workplace accident.
On January 27, 2017, the worker advisor asked Review Office to reconsider its decision of December 29, 2016 based on a letter penned by a co-worker who was present at the time of the accident. The worker advisor noted that this letter and the file information demonstrated that the criteria are in fact met for a concussion diagnosis.
In a letter to the worker dated March 27, 2017, Review Office advised that it was unable to relate his ongoing difficulties beyond June 27, 2016 to the workplace injury. Review Office disagreed with the worker that he suffered a concussion at the time of the accident. It stated that concussions are normally recovered from in short periods of time and in his case, he had been diagnosed with Somatic Symptom Disorder which was inconsistent with his ongoing symptoms beyond June 27, 2016.
On March 30, 2017, the worker advisor appealed Review Office's decision to the Appeal Commission. The worker advisor submitted that the worker had not recovered from the effects of his workplace accident and that he was unable to resume his regular duties on a full-time basis by the benefit end date. An oral hearing was held on October 12, 2017.
Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On February 13, 2018, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.
Applicable Legislation and Policy
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.
This appeal deals with the issue of concussion, accordingly the panel finds that WCB's Healthcare Position Statement for Concussions (the "Position Statement") is relevant.
The worker has an accepted claim for compensation and is appealing the WCB decision that he is not entitled to benefits after June 27, 2016.
The worker was represented by a worker advisor who made a presentation on the worker's behalf and provided a written copy of the submission. The worker answered questions from his representative and the panel.
The worker's representative submitted that the worker did not recover from the effects of the October 1, 2015 workplace accident by the benefit end date of June 27, 2016. He noted that if the panel agrees with this position, the worker is entitled to additional wage loss benefits because he was not medically capable of returning to work on an unrestricted, full-time basis as well as being entitled to medical aid expenses the worker has incurred.
The worker's representative submitted that:
Our primary position remains that the worker sustained a concussion, and as a consequence he developed a number of symptoms, including headaches and vestibular dysfunction that have persisted well beyond the benefit end date. Alternatively, should this panel determine that the worker was not concussed by the accident, and that his presentation to a neuropsychologist and WCB psychiatric consultant is consistent with a somatic symptom disorder diagnosis, we then argue that this psychiatric diagnosis was a disabling, compensable medical condition either by way of the workplace accident itself, or as a further injury subsequent to his compensable head injury.
The worker's representative noted that in concussion cases the WCB applied its organizational concussion criteria, and determined that the worker did not sustain a concussion. He noted that the panel may choose to apply this criteria and submitted that the worker meets this criteria. He noted that the WCB position statement on concussions indicates that an injury mechanism must involve sufficient force applied to the brain, either by blunt head trauma or an acceleration/deceleration motion resulting in one or more of the following immediate manifestations:
• Observed or self-reported loss of consciousness.
• Observed or self-reported alteration of mental state at the time of injury, such as confusion and/or disorientation.
• Loss of memory for events immediately before or after the injury.
• The occurrence of acute neurological deficit.
The worker's representative submitted that the injury mechanism, as described in a letter from the worker's co-worker, dated January 17, 2017, provides a detailed, accurate and reliable account of the event. He noted that the co-worker describes being thrown back in their seats and bounced, which intensified the force against the worker's head.
The worker's representative submitted that:
In our view, these descriptions establish that the injury mechanism involved both a forceful blow to the worker's head, as well as an acceleration/deceleration motion capable of causing a concussion.
He noted that a WCB medical advisor referred to the fact that there was no observed tissue injury but made no comment about the acceleration/deceleration motion that was involved. The worker's representative noted further that under the WCB's criteria the absence of a tissue injury does not itself preclude that a concussion occurred.
He noted the worker's claim that he saw stars was evidence of an alteration of mental state. He also noted that the co-worker described the worker as being immediately unresponsive to her verbal cues, followed by speech difficulties. He added that an October 5, 2015 hospital report states that the worker was experiencing memory loss.
The worker's representative submitted that nine different physicians, six of whom assessed the worker in the month of October 2015, diagnosed the worker as having sustained a concussion and/or post-concussion syndrome.
The worker's representative addressed the extent to which the worker's symptoms affected his ability to participate in the workplace after the benefit end date, as well as any opportunity the worker had to mitigate his loss of earning capacity. He advised that the worker sent many emails to his employer between July 2016 through to February 2017 indicating his willingness to attempt a return to some form of work but he received no reply until the company president advised him in February 2017 that the January 2017 medical restrictions could not be accommodated.
The worker's representative submitted that if the panel determines that the worker sustained a concussion injury, and that his medical presentation after the benefit end date was consistent with post-concussion syndrome, there is entitlement to wage loss benefits based on his loss of earning capacity.
Regarding the diagnosis of somatic symptoms disorder provided by the neuro-psychologist, the worker's representative submitted that the existence of this medical condition does not invalidate that the worker also suffered post-concussion syndrome. He noted that the general information sheet from the American Psychiatric Association, which states that as per the DSM-5, somatic symptoms may or may not be associated with another medical condition.
He also submitted that the neuropsychologist's opinion was influenced by the fact that the only background medical information provided was a WCB medical advisor's October 26, 2015 opinion which provided an inaccurate summary of the worker's injury and post-accident functioning.
The worker's representative also noted that the Review Office accepted the WCB psychiatric consultant's opinion that somatic symptom disorder is not medically accounted for in relation to the workplace injury.
Regarding the diagnosis of somatic symptom disorder, the worker advisor submitted that:
Ultimately, if this panel decides that somatic symptom disorder was the likely medical condition present to account for the worker's symptoms prior to and at the time benefits were discontinued, we then submit that this diagnosis is compensable as a result of the worker's head trauma, and symptoms associated with that trauma. Similarly, we then submit that this condition caused a loss of earning capacity and requirement for medical aid that justifies the reinstatement of benefits.
The employer was represented by a Safety Officer who was accompanied by another of the employer's Safety Officers.
The employer representative advised that the employer agrees with the decisions of the Review Office. He asked whether the worker was able to get his driver's license back and whether there were concerns regarding his medical condition.
The worker is appealing the WCB decision that he is not entitled to benefits after June 27, 2016.
For the appeal on this issue to be accepted, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity and/or required additional medical aid as a result of his October 1, 2015 workplace incident. For the reasons that follow, the panel finds that:
• the worker did not sustain a concussion in the workplace injury;
• the worker did develop a Somatic Symptom Disorder as a result of the workplace injury;
• the worker's claim should be returned to the WCB to be adjudicated for benefits arising from the injury.
Regarding the claim for a concussion injury:
As noted above, the panel was not able to find that the worker sustained a concussion injury in the workplace incident. The worker has argued that he sustained a concussion in his October 1, 2015 workplace accident. In considering the evidence on the file and provided at the hearing, the panel has chosen to apply 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. The evidence also shows that the worker was able to function at work immediately after the incident.
Subsequent to the oral hearing, the panel sought further information from the neuropsychologist who assessed the worker in February 2016. At that time the neuropsychologist concluded that the worker did not sustain a concussion in the 2015 workplace injury, however, he opined that the worker sustained a Somatic Symptom Disorder (SSD) injury. The panel requested an opinion from the neuropsychologist regarding the relationship of the worker's injury to the diagnosis of SSD.
In his letter to the Appeal Commission, dated December 30, 2017, the neuropsychologist opined that:
In [the worker's] case a diagnosis of Somatic Symptom Disorder was made based upon the discrepancy between the level of impairment demonstrated on testing along with the severity of the symptoms reported, in contrast to the mechanism of injury and what I understood to be medically documented evidence of the injuries sustained. It is my understanding that [the worker] was diagnosed with a concussion however there was no documentation of tissue injury to the anatomical area of injury and no report from [the worker] that there were any cuts or bruises on his head as a result of the incident. In addition there were no immediately apparent alterations in mental state or neurological functioning as a result of this incident. [The worker] reported to no loss of consciousness, no difficulties with vision or gait, no vertigo, and no memory loss at the time of the incident. [The worker] was able to continue to care for his patient after the incident and it was opined at the time that [the worker] may have ignored any ongoing symptoms as a result of his dedicated care for his patient. Once the patient's needs were taken care of it appears that only then did [the worker] begin to notice the pain in the back of his head.
Given the above it appeared to this writer at the time of my assessment of [the worker] that his reactions to these injuries and the symptoms being reported were in excess of what would be expected based upon the mechanism of injury. The language that [the worker] used to describe his difficulties was catastrophic in nature. As an example in my interview with [the worker] he described his symptoms over the 2 weeks post injury as "crazy bad, I had everything". [The worker] described himself as "completely different" after the injury and also reported to unusual symptoms such as difficulties with "feeling very cold."
All of the above suggested to this writer that [the worker] was potentially struggling more with the perception of the symptoms than the symptoms themselves, that the symptoms had become the focus as opposed to the injury, and all of the above are consistent with a diagnosis of a Somatic Symptom Disorder. Based upon my discussions with [the worker], my review of background documents, and my consultation with a collateral source of information (a coworker who had known [the worker] for roughly a decade) there did not appear to be any pre-existing psychological conditions which could explain these difficulties and accordingly it appeared to this writer that on a balance of probabilities [the worker's] difficulties were associated with his compensable injury.
The panel attaches weight to the opinion of the neuropsychologist and finds that the worker's difficulties are on a balance of probabilities associated with his compensable injury. The panel returns the file to the WCB to address the issue of the worker's entitlement to benefits after June 27, 2016, arising from this diagnosis.
The worker's appeal is approved in part.
A. Scramstad, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 26th day of March, 2018