The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was not entitled to wage loss benefits after June 8, 2016. A hearing was held on March 1, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after June 8, 2016.

Decision

That the worker is entitled to wage loss benefits after June 8, 2016.

Background

The worker filed a claim for an injury to her head which occurred at work on April 13, 2016, as follows:

I noticed there was a patient in the hallway who…needed an x-ray done. I went a shorter way into another room and confirmed he needed it to be done. I grabbed his requisition and walked into the room that I was going to x-ray him in. I was not looking where I was going as I was looking at the requisition. I was walking and ran into an x-ray tube that was in my path. I ran into it and fell to the ground. I started to see stars and stumbled around a bit. I developed a headache and nausea. I am still having a lot of pain with loud noises. The nausea has not improved and I feel dizzy.

The worker saw her doctor on April 14, 2016. The doctor did not provide a diagnosis but reported the following:

Subjective Complaints 

…was at work yesterday - struck head on the tube. Headache. Neck sore. ? KO - doesn't recall. Missed work - ? Concussion. Saw stars.

Objective Findings

… CN [cranial nerves] 2-12 N [normal] Wearing sunglasses 

Tender to R traps [right trapezius] Grip 5/5 bilat [bilaterally].

The worker's doctor recommended that she be off work for one week.

The worker also saw a physiotherapist on April 14, 2016, who noted her complaints of:

Pain in head and neck. Feels very stiff in neck, and has difficulty moving it. Has been getting ringing in ears, which has decreased since yesterday. Feels nauseas (sic).

After completing his assessment, the physiotherapist diagnosed the worker with "Cervical strain/sprain + concussion."

At a follow-up appointment on April 22, 2016, the worker's doctor noted the following findings:

…looks tired. N 2-12 N neck rom [range of motion] decreased Perla Grip 5/5… post-concussion headache.

The doctor recommended that the worker was capable of alternate or modified work, with the following restrictions:

No lifting/repetitive. grtw [graduated return to work] of 1/2 time x 1 rotation (5 days) then may trial rtw with ft [full-time]/ full duties as tolerated.

On April 25, 2016, the worker attended at the workplace, but was unable to work due to her continuing symptoms.

The worker was seen by her doctor at a further follow-up appointment on April 28, 2016. Her doctor reported that the worker "had just seen opth [ophthalmologist] - nil acute. Went to work - was told by work NOT to push it. WCB - reinforced not to worry re RTW. Was sent home. Light sensitive. Was called by WCB - told to call to see neuro/sports med re ? Concussion clinic."

On May 25, 2016, the worker attended a call-in examination with a WCB medical advisor, who opined that:

…it is unlikely that the forces involved in the reported mechanism of injury would have been of sufficient intensity to cause an injury to the underlying brain tissue, as it would not be likely that a force applied to an unprotected skull by a solid object would be of sufficient intensity to injure the underlying brain without also injuring the soft tissues overlying the skull. 

[The worker] demonstrated full recall of the entire event. Based on her reports, and the initial physician's report, there is no evidence that a loss of consciousness occurred as a result of the injury. Further to this, there is no evidence that an immediate alteration in mental state such as confusion and/or disorientation occurred at the time of injury.

There is no evidence of an acute neurological deficit having occurred at the time of injury.

In light of the above, the WCB criteria for the diagnosis of concussion has not been met in relation to [the worker's] April 13, 2016, workplace injury.

The WCB medical advisor stated that the current diagnosis accounted for in relation to the workplace accident was a "…resolved minor head contusion type injury." In response to questions regarding the natural history and recovery progress of this diagnosis, the WCB medical advisor opined:

A minor head contusion type injury would be anticipated to materially resolve over a period of a few, to many days rather than weeks. It is now greater than 6 weeks post injury.

It should be noted that even in the setting of concussion, the medical literature substantiates that the majority of concussion injuries (80-90 percent) will resolve over a period of seven to ten days, and even in the setting of prolonged post concussions symptoms, recovery time does not typically exceed three months.

With respect to her head injury, [the worker] has no cognitive deficits as substantiated by her normal MOCA score. I am unable to account for [the worker's] currently reported symptoms/complaints in relation to a minor head contusion type injury at 6 weeks post injury.

…with respect to the neck, the accepted diagnosis of cervical strain/sprain has materially resolved.

In response to questions regarding the worker's disability status, the WCB medical advisor stated:

Total disability is not substantiated.

[The worker] reported that she was planning to return to work the day following the call-in exam, and she asked me if this would be reasonable. She reported to me that she was concerned that her condition may worsen should she return to work. I informed [the worker] that the medical evidence substantiated that she would not be at risk by returning to unrestricted duties. [The worker] informed be (sic) that her physician was concerned regarding her safety with transferring patients. I informed [the worker] that this would be a separate matter and that if there is a safety concern regarding her ability to transfer patients she should have assistance in that regard.

In conclusion, the medical evidence substantiates there to be no ongoing medical condition accounted for in relation to the April 13, 2016 workplace incident or its associated diagnosis which would present a risk to [the worker's] returning to full unrestricted occupational at this time.

Further to this, there is no evidence of a physical or mental impairment accounted for in relation to the April 13, 2016 workplace incident or its associated diagnosis which would necessitate restrictions at this time.

On May 26, 2016, the worker attempted to return to work but was sent home due to the return of her symptoms.

On May 27, 2016, the worker was seen by a sports medicine specialist, who diagnosed her with "PCS (post concussion syndrome) - not fully treated". The sports medicine specialist recommended the following treatment plan:

Patient has active symptoms of PCS - not appropriate to return to work yet - needs to be treated: 1) extinguish frequent headaches - starting on [medication] 2) needs to see vestibular physiotherapist for vertigo and probably BPPV - constant symptoms with turning head and bending down 3) following concussion recovery protocol.

On June 1, 2016, Compensation Services advised the worker that after a complete review of her claim, including the findings of her May 25, 2016 call-in examination, they could not account for her current symptoms in relation to her workplace accident. As a result, the worker's wage loss benefits would be paid up to June 8, 2016 final and inclusive.

On August 23, 2016, the worker requested reconsideration of Compensation Services' decision by Review Office. On October 18, 2016, Review Office advised that the worker's ongoing loss of earning capacity was not related to the compensable injuries sustained April 13, 2016 and there was no entitlement to wage loss benefits beyond June 8, 2016. Review Office acknowledged that the initial diagnoses offered by the worker's treatment providers were a cervical sprain/strain and a concussion.

In considering whether a concussion had occurred at the time of the accident, Review Office referred to the WCB's Healthcare Position Statement for Concussions (the "WCB Position Statement"), which stated, in part:

1. The term concussion implies there having been:

i. Physical trauma of sufficient force that would be reasonably expected to lead to an immediate brain injury, as evidenced by; 

ii. An immediate disruption of brain function, as manifested by;

iii. An immediately apparent i) alteration of mental state and/or ii) impairment of neurologic function.

2. 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.

Considering these criteria, Review Office determined the worker did not sustain a concussive injury on April 13, 2016. Review Office placed weight on the fact that the worker had full recall of the workplace accident following the injury; that based on the worker's account and her initial doctor's report, there was no loss of consciousness or immediate alteration in mental state; and that there was no medical evidence of an acute neurological deficit following the accident. Review Office also placed weight on the WCB medical advisor's opinion following his call-in examination of the worker.

Review Office found that the diagnosis in relation to the April 13, 2016 accident was a neck strain/sprain and minor head contusion, and that recovery from these injuries would be of short duration. Review Office noted that by her own account, the worker's neck symptoms and neck function had essentially resolved by May 25, 2016, and concluded that she had recovered from the compensable neck injury. With respect to the worker's head injury, Review Office accepted the WCB medical advisor's opinion that he was unable to account for the worker's reported symptoms/complaints in relation to a minor head contusion type injury occurring six weeks earlier. 

On November 3, 2016, the worker was seen by an otolaryngologist, who opined that the worker's symptoms "…appear to be either postconcussive or related to a labyrinthine concussion."

On May 23, 2017, a worker advisor requested on behalf of the worker that Review Office reconsider its October 18, 2016 decision, stating that information on file, together with new information which they had provided, supported that the worker's ongoing difficulties and symptoms were related to her workplace accident.

On July 10, 2017, Review Office affirmed its previous decision. Review Office found the otolaryngologist's November 3, 2016 diagnosis of a labyrinthine concussion to be speculative as it was seven months after the reported workplace accident. Review Office stated that it preferred to place weight on the WCB medical advisor's May 25, 2016 opinion, which was provided in close proximity to the accident and with the availability of the full claim history for review.

On August 9, 2017, the worker's representative appealed the Review Office 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 assisted by a worker advisor, who provided a written submission in advance of the hearing and made a presentation to the panel. The worker responded to questions from the worker advisor and the panel.

The worker's position was that the evidence supports that she had not recovered from the effects of her workplace accident by June 8, 2016 and is entitled to wage loss benefits beyond that date.

It was submitted that the accident and related symptoms were greater than the strain/sprain injury that was accepted by the WCB. The initial medical reports from the day following the accident confirmed diagnoses of both a strain/sprain injury and a concussion.

The worker advisor noted that the accident was documented and confirmed as a blow to the forehead, which caused the worker to end up on the ground and have difficulty getting up. The sound was so loud a co-worker in the hall heard it. File information confirmed that the worker saw stars as a result of the accident. The employer confirmed that the co-worker found the worker sitting on the floor in a dazed state, trying to stand up.

In their view, the main criteria to support a concussion, as set out in the WCB Position Statement, were satisfied. There was blunt trauma to the head and self-reported loss of consciousness, where the worker reported things going dark and seeing stars. There was disorientation or a dazed state, as observed by the co-worker. There was evidence of an alteration or change in mental state, with the worker reporting that when she tried to return to work, she found herself about to x-ray the wrong body part of a patient.

The worker advisor pointed to medical literature which they provided in advance of the hearing, as supporting that "seeing stars" is a symptom of a concussion, and a blow to the forehead can cause an acceleration/deceleration type of action and account for the worker's cervical strain/sprain and a concussion.

It was submitted that the WCB usually focuses on the initial medical reports on which to accept a workplace injury. The worker advisor pointed out that the physiotherapist's April 14, 2016 report confirmed the mechanism of injury, documented subjective complaints of pain and provided a diagnosis of cervical strain/sprain and a concussion. The April 14, 2016 doctor's report also confirmed the April 13 workplace accident and areas of injury, which were consistent with an acceleration/deceleration type of injury. Follow-up reports documented symptoms associated with a concussion, including persistent headaches, dizziness and nausea, sensitivity to light, ringing in the ears and balance problems.

It was submitted that the evidence shows that the worker had not recovered and was not ready to return to her pre-accident employment as of June 8, 2016. It was noted that the WCB medical advisor's May 25, 2016 opinion, which was relied on by the WCB, was based on a general public norm on recovery from a head contusion and a concussion. The worker advisor submitted, however, that every case must be determined on its merits, not on public norms. It was also noted that the medical advisor's notes from the May 25, call-in examination confirm that the worker reported her disabling symptoms arising from the workplace accident were continuing.

It was further noted that a progress report from the attending sports medicine specialist dated June 7, 2016, being one day prior to the discontinuance of benefits, reported no change in findings since her previous examination on May 27, where the physician had provided a diagnosis of post-concussion syndrome - not fully treated. The sports medicine specialist further confirmed on June 7 that it was unknown when the worker could return to work. It was submitted that with the medical direction that the worker was to remain off work, the worker remained in a loss of earning capacity as a result of her compensable accident.

The worker advisor submitted that subsequent reports from the treating physiotherapist and a neurologist support a continued relationship between the symptoms caused by the workplace accident and the worker's symptoms after June 8, 2016, and the worker's ongoing loss of earning capacity.

In summary, it was submitted that the worker's ongoing difficulties and loss of earning capacity were the direct result of the workplace accident, as a result of which the worker developed immediate and persistent headaches, dizziness, balance problems and other symptoms consistent with a concussion and post-concussion syndrome symptoms. There is a consensus of medical opinions from the worker's healthcare providers that the worker suffered a concussion when she hit her head on the x-ray tube, and was suffering from post-concussive syndrome symptoms. It was submitted that if the panel is unable to support a concussion occurred at the time of the accident, the worker's continuing difficulties with her head and neck were nevertheless still connected to the workplace accident and ongoing wage loss benefits should be accepted on that basis.

Employer's Position

The employer was represented by an advocate, who made a submission at the hearing.

The employer's position was that the worker did not have a loss of earning capacity beyond June 8, 2016, and the Review Office decision should be upheld.

It was submitted that file documentation showed improvement in the worker's condition in the weeks following the accident in line with the sort of normal recovery from the accepted diagnosis of a cervical strain/sprain and head contusion.

The advocate asked that the panel place great emphasis on the WCB medical advisor's opinion, which was based on a call-in examination of the worker five weeks after the workplace accident. She also asked that the panel accept the WCB Position Statement, as the WCB medical advisor had done.

The advocate reviewed various findings by the WCB medical advisor, and noted that the worker had total recall of all details of the workplace event. Testing was normal on examination. The medical advisor recognized that the worker reported seeing stars and everything going momentarily black, but indicated that this in itself did not constitute a loss of consciousness. The medical advisor noted that the worker struck her forehead on the tube, but did not hit her head on the floor, and the force involved was relatively low, substantiated by no evidence of any bruising, swelling or contusion. There were subjective complaints, but the medical advisor's conclusion, after a battery of tests, was that the worker did not meet the criteria for a concussion based on the WCB Position Statement.

It was submitted that the diagnosis provided by the WCB of a head contusion and a resolving cervical sprain/strain was appropriate. The history of post-concussion syndrome is for symptom improvement over time, and as documented in the call-in examination notes, the symptoms were already resolving. It was submitted that file documentation showed improvement in the worker's condition in the weeks following the accident in line with the sort of normal recovery from the accepted diagnosis of a cervical strain/sprain and head contusion.

The advocate submitted that to the extent that the worker's symptoms subsequently seemed to worsen and continue without abatement, this was not the normal progression of a concussion or recovery from post-concussion syndrome. The advocate noted that the symptoms experienced by the worker, such as headache, ringing in the ears and dizziness, are common and not necessarily related to a head injury. She suggested that the worker was also grappling with many other serious problems at that time, which would have compounded her difficulties and perhaps explained her extended absence from work.

In the advocate's view, it was important to note that in the majority of concussion cases, there is resolution of symptoms within seven to ten days, and in the vast majority of cases, complete resolution within three months. In this instance, it was almost two years after the injury, and the worker was only just returning to work.

In conclusion, it was submitted that the medical documentation did not support that the worker's ongoing time loss from work was related to the workplace injury, and her appeal should be dismissed.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits after June 8, 2016. For the worker's appeal to be successful, the panel must find that the worker suffered a loss of earning capacity after June 8, 2016 as a result of her April 13, 2016 workplace accident. The panel is able to make that finding, for the reasons that follow.

Based on our review of all of the evidence, on file and as presented at the hearing, and the submissions of the parties, the panel finds, on a balance of probabilities, that the worker sustained a concussion as a consequence of the April 13, 2016 workplace accident.

The worker described the mechanism of injury in detail at the hearing. The worker indicated that she walks briskly. On April 13, 2016, she was reading the requisition and "scooting over to the patient because I knew they were waiting to come in." As she moved into the room, she did not see the tube, which was locked in place.

The worker described the tube she hit as:

…a solid piece of equipment, it's the x-ray tube encased in metal…It's suspended on the ceiling and it moves around the room to enable us to obtain x-rays…It's on a roof track…We release the locking mechanism and we move it around the room…So it goes around the room to enable us to take x-rays of different body parts in different positions…it doesn't move until you release the lock.

The worker said the tube was overhead, suspended from the ceiling, even with her head, "in a position where it…hit me right square in the forehead as I'm walking." The worker said that the tube is "usually over the table, but it wasn't in this case."

After hitting her head, the worker ended up on the ground, underneath the tube. She did not recall hitting the back of her head on the ground, but talked about seeing stars. She said she "tried to get back up, but I kept kind of turning as I was getting up. And that's when my co-workers came in to help me up, I had trouble getting up."

Based on the information on file, and the worker's description of the accident at the hearing, the panel finds that the mechanism of injury was significant, as opposed to minor in nature. The worker hit her forehead on the fixed "main square box of the tube" which was high enough off the ground that she struck the bottom of it with her forehead, and did so with sufficient force that she ended up on the ground and had trouble getting up. The impact of her head striking the x-ray tube was significant enough that she injured her neck.

The panel is further satisfied that the worker suffered a concussion as a result of the accident. In arriving at our conclusion, the panel considered and finds that the criteria in the WCB Position Statement have been met. The panel notes that while the WCB Position Statement is not binding us, we are of the view that it is based on current thinking on concussions, and is consistent with our understanding of the current literature on concussions.

As previously indicated, the WCB Position Statement refers to four criteria or manifestations of a concussion, one or more of which must be established, 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 panel is satisfied that the accident resulted in the application of a blunt trauma force to the worker's brain of sufficient intensity to result in a concussion. In particular, the panel finds, based on the evidence, that there was both observed and self-reported alteration in the worker's mental state at the time of the injury, such as to result in confusion and disorientation.

In arriving at this conclusion, the panel notes that information on file indicates that the worker's head hit the tube with sufficient force that a co-worker heard a "thud" from the hallway and immediately left what he was doing to go into the room. The co-worker and the worker's manager reported finding the worker sitting on the floor in a "dazed state", trying to stand up. While the worker recalled several details surrounding the accident, the evidence indicated that she did not have full recall of all that had happened. She was not sure whether she hit her head or lost consciousness and indicated that things were getting dark and she was seeing stars. The evidence further indicates that the worker tried to go back to work later that day, but became scared when she started to x-ray the wrong part of a patient.

The panel notes that the worker's description of the mechanism of injury was consistent from the beginning, and the worker was diagnosed in the initial medical reports, including those from the day following the incident, with a concussion.

The panel further notes that post-accident symptoms which the worker experienced, including symptoms of persistent headaches, dizziness and fatigue, support the diagnosis of a concussion and subsequent post-concussion syndrome symptoms. The panel is satisfied, on a balance of probabilities, that these symptoms were related to the worker's accident and concussion injury, and that medical evidence on file shows that the worker continued to suffer from such symptoms as at June 8, 2016.

The panel also notes that the worker attempted to return to work on May 26, 2016, the day after the call-in examination at which the WCB medical advisor had indicated to the worker that she was clear to work her full duties, without restrictions. The worker was unable to continue working, however, due to ongoing symptoms of dizziness and nausea, and was sent home.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker had not returned to her pre-accident employment status and continued to suffer a loss of earning capacity after June 8, 2016 as a result of her April 13, 2016 workplace accident. The panel therefore finds that the worker is entitled to wage loss benefits after June 8, 2016.

The panel notes that evidence at the hearing indicated that the worker had recently attempted or was about to start a further return to work. The worker advisor submitted that the worker's entitlement to benefits should be from June 8, 2016 to the time the worker has been medically cleared or is able to return to her full regular hours. The panel would note that we are not in a position to address the length of the worker's benefits at this time.

In conclusion, based on the foregoing, the panel finds that the worker is entitled to wage loss benefits after June 8, 2016, with the length of those benefits to be determined by the WCB.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 27th day of April, 2018