The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to benefits after March 27, 2017. A hearing was held on March 22, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after March 27, 2017.

Decision

That the worker is not entitled to benefits after March 27, 2017.

Background

The worker filed a Worker Incident Report in which she claimed that she injured her head, neck, shoulders, back, wrists, knees and ankles in a motor vehicle accident on July 28, 2016. The worker described the incident as follows:

During the evening of 28/07/2016, while in [location] for a training session, I was in the passenger seat of a stopped vehicle that was hit from behind. I did not see the accident, but my co-worker [name], was in the other car and has more information about what happened. I immediately felt injuries to my head, neck and back. The next day, I felt injuries to my wrists, shoulders, ankles and knees and attended to the hospital in [location] (concussion, whiplash and occipital nerve damage).

On July 29, 2016, the worker attended at a hospital emergency department, where she was diagnosed with a cervical strain and occipital neuralgia. The physician on duty also questioned whether the worker had sustained a mild concussion.

The worker returned to her regular duties, and was seen for an initial physiotherapy assessment on August 2, 2016, where she was diagnosed with "Whiplash, lumbar sprain/strain +/- post-concussive syndrome." The worker had a further physiotherapy assessment with an athletic therapist on August 31, 2016. The athletic therapist diagnosed the worker with mechanical upper cervical spine dysfunction and recommended that an ergonomic assessment of her workstation be conducted.

On September 9, 2016, the worker attended at an emergency department and was diagnosed with headache, visual disturbance (not yet diagnosed). A CT brain scan conducted on that date noted that a skull fracture was not identified and there was no evidence of infarction, intracranial hemorrhage or mass. On September 10, 2016, the worker was seen by an ophthalmologist, who diagnosed her with a posterior vitreous detachment in her right eye.

At a follow-up appointment with her family doctor on September 22, 2016, the worker was referred to a vitreoretinal surgeon. On September 28, 2016, the worker was examined by a neurologist, who opined that she was suffering from "Post-concussion syndrome with migraine headaches with visual aura, dry eye, memory disturbance." On October 3, 2016, the treating neurologist recommended that the worker be off work to November 1, 2016. On October 29, 2016, the worker's family doctor stated that she felt the worker had not recovered sufficiently and recommended she be off work for a month.

On November 7, 2016, the treating neurologist recommended a graduated return to work program for the worker, with frequent rest in between. The neurologist recommended that the worker start with two days per week at three hours per day for two weeks, then gradually increase the hours and days if she did not develop increasing symptoms. The worker began the graduated return to work program on November 9, 2016.

The worker attended a call-in examination with a WCB medical advisor on November 14, 2016. In response to questions posed by the WCB, the medical advisor opined, in part, as follows:

1. What are the diagnoses to account for the July 28, 2016, workplace incident? What medical findings support these diagnoses?

Response: 

The mechanism of injury appears to have involved low-velocity vehicular forces.

Initial clinical examination on July 29/16 (ER Reporting) includes…

Given the nature of the above findings, and in consideration of the mechanism of injury, the probable diagnosis was a neck strain, of which the natural history is for improvement in pain/function by 1-6 weeks with no residual/recurrent physical impairment.

2. Are the initial medical findings and mechanism of injury supportive of a concussion diagnosis? 

Response: 

In the community there is no single set of diagnostic criteria for concussion that is uniformly applied across the various medical disciplines. This has the potential to create inconsistencies when WCB Healthcare Consultants are asked to clarify the diagnosis stemming from a workplace accident.

The lack of universally accepted criteria to confirm concussion can create some inequities in the way a claim is managed based on which criteria a particular doctor uses. To address this matter, WCB Healthcare developed a Position Statement, which addresses the diagnostic criteria of concussion that WCB Healthcare Consultants utilize when asked about concussion in relation to a workplace accident.

According to this Position statement, 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 above criteria are do not appear to be met as follows:

• The mechanism of injury does not appear to be consistent with a force that is sufficient to injure the brain. The motor vehicle accident involved [the worker's] vehicle being rear-ended by a vehicle which was a short distance away and had started from a stationary position. The velocity with which [the worker's] vehicle was struck was unlikely to have been high...

• There is no documentation of a disruption in brain functioning in the medical documentation in closest temporal proximity to the date of accident. Specifically, July 29, 2016 ER reporting documents normal alertness and orientation, and normal Glasgow Coma Scale scoring. Loss of consciousness, amnesia, and a neurological deficit are not documented. 

… 

4. Is there any new diagnosis on file?

Response: 

Based on today's examination findings, the probable diagnosis is nonspecific headache with cervicogenic component and nonspecific neck and back pain.

5. Is (sic) the worker's right eye issues likely related to the compensable injury?

Response: 

The available information regarding this matter on file is a September 10, 2016 opthalmology assessment which provides a diagnosis of right posterior vitreous detachment (PVD). PVD involves natural age related changes of the vitreous, typically occurring between the ages of 50-75. Risk factors for earlier development of PVD include nearsightedness, ocular trauma, or ocular inflammation. Individuals diagnosed with an uncomplicated PVD have a 3.4% chance of developing a retinal tear in the next 6 weeks. It does not appear probable that [the worker's] right eye issues relate to the MVA... 

… 

8. In your medical opinion is the worker able to participate in work-related activities at this time. If yes, please outline whether there are workplace restrictions, the nature of same, and the associated timeframe to review. Please provide your opinion on a graduated return to work and if this is necessary at this time.

Response: 

Yes. Participating in usual activities, including occupational activities appears to be supported in terms of the following factors:

• RISK- this refers to the probability of structural damage occurring with resumption of usual physical activities. There is no demonstration of a significant structural or functional injury to [the worker's] head, brain, or spine as a result of the MVA. A soft tissue injury of her neck (i.e. neck strain) probably developed on July 28/16. There would be no anticipated adverse effect on a neck strain with resumption of usual physical activities. Even if she had sustained a concussion as a result of the MVA, there would be no risk of further damage on returning to a sedentary occupational position where there is no material risk of a blow to the head.

• CAPACITY- refers to the presence of physical or cognitive impairments which preclude participating in usual physical activities. Based on today's findings, there does not appear to be a significant physical impairment of the spine/nervous system, or a significant cognitive impairment. [The worker] demonstrates the capacity to participate in usual physical activities.

• TOLERANCE - refers to reported symptoms such as pain, fatigue etc. which preclude participating in physical activities, however these are not objectively verifiable. Tolerance to physical activities increases with exposure to same, therefore engaging rather than withdrawing from usual physical activities should be encouraged.

Based on the above, no restrictions and no limitation of workplace hours are recommended in relation to the workplace injury.

On December 8, 2016 , the worker was seen by the vitreoretinal surgeon, who diagnosed her with an "Old horse shoe tear right eye, incomplete pigmentation surrounding. Lattice degeneration right eye. Posterior vitreous detachment right eye. Ongoing flashes." The surgeon noted that he explained to the worker that "...while trauma from a car accident could cause a tear, it is equally possible that the tear was there for years given the fact that there is pigmentation surrounding. Explained that the lattice degeneration is related to her myopia."

On December 19, 2016, Compensation Services advised the worker that her accepted compensable diagnosis was "…nonspecific headache with cervicogenic component and non-specific neck and back pain." The worker was advised that the WCB was unable to accept responsibility for her right eye symptoms/condition.

On January 24, 2017, the worker was assessed by another ophthalmologist, who confirmed the previous diagnosis of a small retinal tear, posterior vitreous detachment and lattice degeneration in the worker's right eye. The ophthalmologist further opined:

It is impossible to know whether the car accident of July 2016 is the cause of her posterior vitreous detachment and associated retinal tear.

Typically blunt trauma to the eye is required to produce a retinal tear. Given the fact that she is myopic, it is possible that the posterior vitreous detachment and retinal tear could have occurred without any history of trauma.

On March 16, 2017, Compensation Services advised the worker that the WCB was unable to accept any further responsibility for her injuries sustained on July 28, 2016. Compensation Services advised that the evidence supported she had recovered from her July 28, 2016 workplace accident and her current symptoms were not related to her claim. The worker was advised that she would no longer be entitled to benefits after March 27, 2017.

On March 28, 2017, a worker advisor acting on the worker's behalf asked that the WCB reconsider their decision. The worker advisor submitted further medical evidence and witness statements in support of their request. On April 12, 2017, Compensation Services advised the worker that there was no change to their earlier decision.

On July 4, 2017, the worker advisor requested reconsideration of the WCB's decision by Review Office. The worker advisor submitted that the evidence supported that the worker's symptoms were greater than a neck strain. The worker advisor also relied on the vitreoretinal surgeon's December 8, 2016 opinion that trauma from a car accident could cause a retinal tear as supporting that the right eye symptoms and difficulties were triggered by the accident.

On August 31, 2017, Review Office determined that the worker was not entitled to benefits beyond March 27, 2017. Review Office found that the medical evidence indicated the worker's eye condition was due to degenerative conditions and an old eye injury. Review Office noted that the findings of the WCB call-in examination were that there did not appear to be a significant physical impairment of the spine/nervous system or a significant cognitive impairment and the worker demonstrated the capacity to participate in usual physical activities. Review Office found that while the worker's practitioners continued to support her physical and cognitive symptoms as related to post-concussion syndrome and her accident, this was based entirely on the worker's subjective complaints.

Review Office also found that any continued eye-related symptoms or sensitivities or any increase in physical or cognitive symptoms and/or new clinical findings not present at the November 14, 2016 call-in examination were not supported in relation to the compensable accident. Given the findings of the call-in examination and the recommendation more than nine months earlier for a resumption of normal duties, Review Office was unable to find that the worker's physical and mental complaints after March 27, 2017 continued to be related to the worker's July 28, 2016 accident.

On September 26, 2017, the worker's representative appealed the Review Office decision to the Appeal Commission, and an oral hearing was arranged.

Reasons

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.

The worker was employed by a federal government agency or department and her claim is adjudicated under the Government Employees Compensation Act ("GECA"). Pursuant to subsection 4(2) of GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under the Act.

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 27(1) of the Act provides that the WCB may provide a worker with such medical aid as is considered 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.

WCB Policy 44.10.20.10, Pre-existing Conditions (the "Policy") addresses the issue of pre-existing conditions when administering benefits. The Policy states that:

When a worker's loss of earning capacity is caused in part by a compensable injury and in part by a non compensable pre-existing condition or the relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the compensable injury.

Worker's Position

The worker was represented 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 panel.

The worker's position was that she continued to suffer from the consequences of her July 28, 2016 workplace accident beyond March 27, 2017 and the WCB is therefore responsible for benefits beyond that date.

It was submitted that medical evidence closest in time to the accident supports that the worker sustained a concussion. The hospital report from the day after the accident provides a diagnosis of a suspected mild concussion, and the worker’s reported symptoms including dizziness, right eye tearing, immediate tightness and pain in the posterior neck and mid and lower back, nausea, difficulty concentrating and difficulty finding words are confirmed symptoms of a concussion. The worker advisor submitted that the general literature on concussion confirms that there does not need to be a significant force to cause a concussion. A concussion can also occur from shaking of the head and upper body. The symptoms of concussion do not always occur immediately, but include headache or a feeling of pressure in the head, confusion or feeling as if in a fog, and appearing dazed and fatigued. Other symptoms may be delayed, such as concentration and memory complaints, sensitivity to light and noise and sleep disturbances. It was submitted that the worker displayed all these symptoms as a direct result of her accident, both before and after March 27, 2017.

The worker advisor noted that they had provided witness statements which confirmed that the mechanism of injury was forceful enough to have caused a diagnosis of concussion. They further confirmed that the worker was seen to be in a dazed state, disoriented and somewhat confused following the accident, that she reported "something was off" and that she had immediate onset of a headache, cloudiness in the head and vision difficulties at that time.

The worker advisor noted that lists of the worker's symptoms at different periods of time, which she had provided prior to the hearing, all confirmed symptoms as related to a concussion. It was submitted that no other cause has been identified as being responsible for the worker's ongoing difficulties, and her symptoms beyond March 27, 2017 are still post-concussion symptoms directly related to her accident.

The worker advisor submitted that the diagnosis of concussion is almost always based on subjective complaints. Confirmation of a neurological component is not required for a concussion to be accepted. Medical literature which had been provided indicates that concussions, as mild brain injuries, may not be observable in a routine neurological examination. The diagnosis is based on the nature of the incident and the presence of specific symptoms, confusion being a primary one. The WCB’s Healthcare Services Position Statement on Concussion itself confirms that only one of four main criteria is necessary, and is satisfied in this case given the observed alteration of the worker’s mental state, confusion and disorientation.

It was submitted that the evidence also supports that the worker had immediate right eye difficulties and tearing because of the workplace accident. The vitreoretinal surgeon opined that trauma from a car accident could cause a tear, and it was equally possible that the tear was there for years. The worker's position was that the accident enhanced her right eye difficulties, given that she had no such difficulties prior to the accident and the onset of symptoms was immediate.

In conclusion, it was submitted that the evidence supports that the worker has not returned to her pre-accident state and is entitled to benefits beyond March 27, 2017 as a result of her injuries. Her symptoms are consistent with post-concussive symptoms. All of the worker's ongoing difficulties and symptoms arose as a direct result of her July 28, 2016 accident, and the WCB has a continuing responsibility for benefits beyond March 27, 2017.

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 benefits after March 27, 2017. For the worker's appeal to succeed, the panel must find, on a balance of probabilities, that the worker sustained a loss of earning capacity and/or required medical aid after March 27, 2017 as a result of her July 28, 2016 workplace accident. The panel is unable to make that finding, for the reasons that follow.

The panel finds, on balance, that the medical information on file does not support that the worker suffered a concussion as a result of the July 28, 2016 motor vehicle accident.

In arriving at that conclusion, the panel places more weight on the information provided at or around the time of the accident. The panel relies in particular on the medical documentation relating to the worker's attendance at the hospital the day after the accident, which indicates that the worker did not have any loss of memory and was alert and oriented. While the possibility of a concussion was raised, the panel notes that there is no indication in the report that the worker was disoriented or confused or that there had been any alteration in her mental state, and the Glasgow Coma Scoring was identified as normal.

The panel also places significant weight on the November 14, 2016 report of the WCB medical advisor, who opined, based on her review of the worker's file and her call-in examination of the worker, that the criteria for a concussion diagnosis had not been met. The panel accepts the medical advisor's opinion as being consistent with our review of the information on file and at the hearing, and with the medical literature which had been provided. The panel further accepts the medical advisor's opinion that the probable diagnosis was nonspecific headache with cervicogenic component and nonspecific neck and back pain.

The panel recognizes that the treating neurologist diagnosed the worker with post-concussion syndrome on September 27, 2016, but is unable to place any weight on that diagnosis. The panel notes that the neurologist did not see the worker until two months after the accident. The panel further notes that her diagnosis of post-concussion syndrome is based on what the worker told her at that time regarding the history of the accident and her symptoms, and that there is a lack of clinical findings in the neurologist's report to support the finding of a concussion. It is the panel's understanding that in the absence of a confirmed concussion in the workplace, the presence of any post-concussion symptoms could not be medically accounted for in relation to the compensable injury. Given our earlier finding regarding the absence of a concussion, the subsequent diagnosis of post-concussion syndrome cannot be supported.

The panel reviewed and considered the witness statements which were provided by the worker's mentor at work and by several co-workers who were involved in the July 28, 2016 accident, but is unable to attach much weight to those statements. The panel notes that the co-workers' statements, setting out their recollections of the accident and the worker's condition at that time, were prepared at least six months after the accident. Further, or in any event, the panel is not satisfied that the co-workers' descriptions of the worker's condition following the accident, including that she looked "unwell", or was "a bit foggy", "dazed" and "not with it", are sufficient indication that the worker sustained a concussion.

Information on file shows that the worker returned to full hours and regular duties as of December 30, 2016. In a Healthcare Service Request dated March 2, 2017, the case manager indicated that the worker had expressed concern and frustration with ongoing symptoms, and requested a further opinion from the WCB medical advisor with respect to the worker's current presentation and its relation to the workplace injury.

The panel accepts the March 13, 2017 opinion of the WCB medical advisor who responded to the case manager, in part, as follows, based on her further review of the file:

[The worker's] neck, shoulders, wrists, back, hips, knees, and ankles were evaluated at the November 2016 WCB examination and no significant physical impairments were found. Recent reporting from the treating MD (Feb. 18/17 report) now notes reduced neck and back mobility (note that mobility was normal at the November 2016 WCB exam). The probable diagnosis to account for her body pains is nonspecific pain. Nonspecific pain is multi-factorial in cause and can arise at any time without an inciting injury or event. On balance, the reported nonspecific pain is no longer medically related to workplace injury related neck strain in light of the length of time elapsed since the date of injury and the absence of significant physical impairment demonstrated on the November 2016 WCB exam…

No further treatment is recommended in relation to the workplace injury beyond normalizing activities.

The panel notes that the worker indicated at the hearing that most of her physical symptoms, including any back, neck, shoulders, wrists, knees and ankles issues, had resolved, and that those issues did not concern her. Her concern, however, was that she continued to have problems with migraines and headaches.

In this regard, the panel notes the treating neurologist referred in her chart notes to the triggers for the worker's symptoms as being "working with computers, reading." It is the panel's understanding that the worker's complaints of eye strain and headaches are common complaints from workers who work with computers and fluorescent lighting for long periods of time daily, as the worker is required to do in her work. Based on the medical information which is before us and on our previous findings, the panel is unable to find that the worker's migraine or headache symptoms are related to her workplace injury.

The panel is also unable to find that the worker's right eye issues are related to her workplace injury. The panel finds that the medical information on file does not support that the worker's ongoing problems with respect to her eye symptomatology were causally related to her injury.

The panel notes that the vitreoretinal surgeon indicated, on December 8, 2016, and the worker acknowledged at the hearing, that the lattice degeneration in her right eye was age-related. The surgeon also indicated that it was possible that trauma from a car accident could cause a tear, but noted that it was equally possible in her case that the tear was there for years. While the panel accepts that there is a possibility that the worker's eye symptoms are linked to her injury, this is not sufficient to meet the applicable standard in this case of a balance of probabilities. The panel notes that the treating ophthalmologist further indicated, on January 24, 2016, that it was impossible to know whether the accident caused her eye problems.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not sustain a loss of earning capacity or require medical aid after March 27, 2017 as a result of her July 28, 2016 workplace accident. The panel therefore finds that the worker is not entitled to benefits after March 27, 2017.

The panel acknowledges that the worker has significant ongoing symptomatology. We are unable to find, however, that the worker's ongoing difficulties and symptomatology are causally related to her July 28, 2016 workplace injury.

The worker's appeal is dismissed.

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 18th day of May, 2018