The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") regarding her entitlement to benefits beyond June 4, 2015. A hearing was held on February 9, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after June 4, 2015.

Decision

That the worker is entitled to benefits after June 4, 2015.

Background

The worker filed a claim with the WCB for a head and neck injury that occurred on December 4, 2014 when a case of product fell and landed on top of her head.

On December 12, 2014, the worker advised the WCB that she was moving a ladder and bumped a case of product and it hit her on the top of her head when it fell. The product was on the top shelf, about 3 feet above her head, and weighed about 15 pounds. Her neck was instantly sore as the box fell flat on the top of her head and jarred her head and neck. Immediately after the accident, she was dizzy, her ears were ringing and her neck was sore. She saw stars in her eyes and her head was pounding. When she went to tell the assistant manager what had happened, she was told to sit down as her speech was slurred.

Medical information on file includes reports from the hospital the worker attended on December 4, 2014, as well as reports from attending physicians, a physiotherapist and x-ray/ CT/MRI results.

In a note to file dated May 7, 2015, a case management representative documented that the worker left a message advising that this was her first day back at work and she only lasted 45 minutes then left, as a headache came on fast and hard.

On May 8, 2015, the worker advised the WCB case manager that she was in a great deal of pain due to a pinch on the right side of her neck. The worker felt the bright lights in the store caused her headache, but the pain in her neck also affected it. The worker stated that her C2 fracture from a previous motor vehicle accident was on the left side of her neck. She had her blinds drawn at home and was unable to sleep. Her headache continued to 3 a.m. the previous night and she had a hard time finding a way to lay her head down without it bothering her neck and aggravating her headache. 

On May 11, 2015, the worker's file was referred to the WCB's healthcare branch for a medical opinion regarding the worker's clinical status/diagnosis and functional capacity as it related to the workplace incident of December 4, 2014. The case manager noted in the memorandum that the worker:

"…was not knocked out according to the Dec 4/14 triage record. Initial medical report documents a prior C2 fracture in 2011 and offers neck strain as well the hospital report offers diagnosis of strain, no evidence nausea at that time. [Attending physician] documents on December 5, 2014, that there were no obvious signs of concussion and normal scan. She later developed symptoms of severe concussion.

On May 13, 2015, following review of the file information, the medical advisor opined as follows:

• The original diagnosis related to the work accident of December 4, 2014 was neck strain as documented in the ER physician's report of December 4, 2014. 

• The current diagnosis as documented on the physician's December 10, 2014 report was concussion/neck strain. 

• The WCB's criteria for a concussion diagnosis had not been met. • The worker was diagnosed with cervicogenic headaches as per the physician's most recent report of May 8, 2014 [should read 2015]. 

• The symptoms associated with a cervical neck strain would typically resolve over a period of days to weeks but not typically months. 

• The current diagnosis and associated impairment (if any) accounted for in relation to the workplace incident was not clear based on the medical evidence. 

• The medical evidence substantiated that the worker's cervical spine function would not preclude her returning to work in a sedentary type capacity while awaiting a call-in examination.

On May 21, 2015, the worker was seen at the WCB offices for a call-in medical assessment. The medical advisor opined that the current diagnosis was non-specific neck pain with no evidence of cervical radiculopathy. He said the diagnosis of concussion was not substantiated by the medical evidence, and he was unable to account for the worker's reported headaches as being related to the minor head trauma she sustained at the time of the workplace incident. The medical advisor opined that there was no evidence of a pathoanatomical structural lesion in the worker's neck that would be put at risk by her returning to work in a full-time, unrestricted capacity.

By letter dated May 28, 2015, Compensation Services advised the worker that based on all the information on file, including the call-in examination findings, they were of the view that she had recovered from her workplace injury of December 4, 2014, and her current symptoms could not be linked to that compensable injury. As a result, she was no longer entitled to wage loss or medical aid benefits and wage loss benefits would be paid to June 4, 2015. In March 2016, the worker appealed the WCB's decision to Review Office.

On March 31, 2016, Review Office determined that there was no entitlement to benefits beyond June 4, 2015. Review Office stated in its decision that based on the file evidence, including the WCB medical advisor's opinion, it was not able to establish a causal relationship between the diagnosis of a concussion and the December 4, 2014 accident. Review Office found that the medical evidence and the mechanism of injury supported a compensable diagnosis of a neck strain and that recovery from a neck strain typically occurs within a short duration of time. There was therefore no entitlement to wage loss benefits beyond June 4, 2015. On October 17, 2016, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

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 worker for comment. On March 28, 2018, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

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 27(1) of the Act states 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.

Worker's Position

The worker was self-represented and provided a written submission in advance of the hearing. The worker made a presentation at the hearing and responded to questions from the panel.

The worker’s position was that she is still suffering from chronic migraines and daily headaches as a result of her workplace accident. She is still unable to return to work and finish her education, and daily tasks are a great struggle for her.

The worker stated that her injury occurred when she bumped into a shelf while moving a ladder at work, and a shrink-wrapped package of product fell off the top shelf and flat onto her head. She said that "it whacked me so hard that it stunned me and it was instant pain in my neck and confusion" and she sat down "disoriented." The ringing in her ears was "horrible." When she went to speak to her assistant manager, she was told that she "wasn’t making any sense and that her speech was slurred." She went to a back room and sat down for a few minutes, then went to the washroom where she was sick. Her friend picked her up and took her to the hospital. The worker said that after that it has just been "constant migraines and headaches."

The worker stated that "I absolutely believe I had a concussion right from the start." She said that the initial assessment at the hospital "kind of got muddled" as she was "bounced between three doctors." The hospital was focusing on the issue of her neck because of her previous injury from a car accident, and they did not ask or do anything about her head.

The worker said that has had a low-grade headache pretty well every day since the accident, and the migraines started to show up right away. When she had a migraine, she had ringing in her ears and light sensitivity, as well as nausea and vomiting. She also had problems with concentration. She said that she had never had migraines before her accident.

The worker said that her condition is better now than it was at the beginning. She does not have nearly as many migraines, and they do not last as long. She will sometimes have three or four migraines a week now, and they will usually last somewhere between six and twelve hours.

The worker stated that she has "totally lost all quality of life with this. I was in school. I was working. I had an active social life, now I don’t have anything. I can’t make plans day by day because I never know what the day is going to be like."

Employer's Position

The employer did not participate in the appeal.

Analysis

The worker has an accepted claim for compensation and is appealing the WCB decision that she is not entitled to benefits after June 4, 2015. For the worker’s appeal to be successful, the panel must find that the worker suffered a loss of earning capacity and/or required medical aid beyond June 4, 2015 as a result of her December 4, 2014 workplace incident. The panel is able to make that finding, for the reasons that follow.

Based on our review of the evidence on file and as provided at the hearing, as well as medical information subsequently provided at the request of the panel, the panel finds that the worker sustained a mild concussion at the time of the workplace accident, which appeared to have resolved a short time afterwards.

In arriving at that conclusion, the panel has chosen to apply the concussion criteria contained in the WCB’s Healthcare Services Position Statement on Concussion (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 able to find, on a balance of probabilities, that the second criteria, being an observed or self-reported alteration in mental state at the time of injury, has been met in this case.

In this regard, the panel notes there was early reporting by the manager, on December 18, 2014, that she was aware the assistant manager believed the worker's speech was slurred and told her to sit down, that the assistant manager had told the worker her speech was slurred, and that the worker had vomited in the washroom. The worker further reported to the WCB medical advisor at the call-in examination on May 21, 2015 that shortly after the accident she felt confused and dizzy and that a co-worker had told her that her speech was slurred. The panel finds that the evidence on this point is consistent through the file. The panel therefore accepts that the worker sustained a mild concussion at the time of the accident.

The panel is satisfied, however, that the concussion had resolved by the time the worker attended the hospital later that day, based on the medical reports at that time. The panel further finds that in the absence of further findings with respect to a concussion, a subsequent diagnosis of post-concussion syndrome is not supported.

The panel is satisfied, however, that the worker continued to suffer from a condition which is related to her workplace accident and the effects of same beyond June 4, 2015 and is entitled to further benefits as a result. The panel notes that the evidence on file and at the hearing shows that the worker experienced severe and continued headaches and migraines at the time of the accident and thereafter as a result of her workplace injury.

The panel notes that the worker was seen by a neurologist on November 13, 2015, who noted that the worker denied any headache problems whatsoever until her accident. The worker reported that she "had fairly immediate headache, dizziness – concussive type symptoms reportedly. Symptoms have been slowly improving, but with still a chronic daily low grade headache punctuated by more typical migraines with significant photosensitivity and nausea and vomiting several times per week..." The neurologist concluded that the worker’s "presentation, by historical description, is consistent with an initial concussion and consequent chronic migraine headaches." In correspondence dated November 3, 2016, the neurologist reported that he had seen the worker again that day and she "continues to have frequent and debilitating migraine headaches."

Subsequent to receipt and review of information requested by the panel after the oral hearing, the panel arranged for an independent medical examination of the worker by a neuropsychologist (the "independent medical examiner"). The independent medical examiner was provided with and reviewed the extensive file documentation, including the further medical documentation obtained following the hearing, and a subsequent report of a clinical and neuropsychological assessment dated April 26, 29, and May 3, 2017, and a June 9, 2017 psychiatric assessment report. The independent medical examiner also interviewed and assessed the worker before providing his medical opinions as to the initial diagnoses that were causally associated with the worker's injury, the worker’s current diagnosis(es) and whether the diagnosis(es) were attributable to the worker's injury, whether the worker sustained a concussion at the time of the accident, and the etiology of the worker's diagnosed migraine headaches.

The independent medical examiner provided a very detailed and exhaustive report to the Appeal Commission dated March 2, 2018, in which he summarized the contents of the June 9, 2017 psychiatric assessment report, in part, as follows:

The [psychiatrist], who had examined her, had indicated that [the worker's] history prior to her injury was largely unremarkable and non-pathological, she did not have symptoms that would suggest a primary mental health condition on a pre-accident basis, and she diagnosed [the worker] with having a Somatic Symptom Disorder with predominant pain, that was persistent, with moderate severity, with this related to her ongoing "episodic but unpredictable and debilitating migraine headaches that are superimposed on a background, chronic daily headache" (sic).

The independent medical examiner arrived at similar findings, stating as follows:

I had a similar history from [the worker], that she was functioning well prior to her workplace injury, and that she had ongoing general headaches and migraines that she attributed to the December 2014 injury she sustained, where she stated that she had instant pain in her head and neck, had ringing in her ears, was disoriented when she got up, and that her neck and head hurt. She stated that she sat for a number of minutes, and that a coworker felt that her speech was slurred and that she could not understand what [the worker] was saying.

[The worker's] psychometric profile was reflective of somatic sensitivity with significant physical symptom sensitization, and with what would be described as a somatic profile, with some degree of psychological defensiveness and, mild depressive symptoms. This would be consistent with the Psychiatrist's diagnosis of her having a Somatic Symptom Disorder with predominant pain that was persistent…

There clearly is a temporal relationship between [the worker's] pre-accident life trajectory and what has occurred on a post-accident basis…

In conclusion, the independent medical examiner opined as follows in response to the questions that had been posed by the panel:

1. More likely than not, while there is an absence of medical substantiation that [the worker] sustained a concussive brain injury from the [hospital], there is collateral bystander reporting and [the worker’s] report that she had an immediate observed alteration in her mental state...This would be permissive of her having sustained a mild concussive brain injury albeit with her symptoms appearing to resolve by the time she was seen at the [hospital].

2. [The worker] has, in the mental health domain, a Somatic Symptom Disorder with predominant pain in the context of her diagnosis of having chronic migraine headaches associated with her injury as per the reporting from [neurologist]. [The neurologist] has stated that her presentation and historical description was consistent with having sustained "an initial concussion and consequent chronic migraine headaches."

Given the precipitous preinjury to post-injury change in [the worker’s] functioning, there clearly is a temporal relationship between her outcome and, in the absence of identified pre-existing psychopathology, and the presence of previous capable functioning, there most likely is a causal relationship here.

3. ...[the worker] appears to have permissive evidence that she did sustain a mild concussion in the December 2014 accident, albeit for the initial symptoms reported by the bystander not present when she attended the [hospital].

At the time she was seen for this assessment, she would not be diagnosed with having a Post-Concussion Syndrome but, as indicated, a Somatic Symptom Disorder with predominant pain in the context of her ongoing migraine headaches as per the Neurologist’s report.

4. From a neuropsychological and psychological perspective, the diagnosis of [the worker’s] migraine headaches comes specifically from [the neurologist] who she had seen, and would be based on his neurologic assessment and opinion…

The panel attaches particular weight to the opinion of the independent medical examiner, which is supported by that of the psychiatrist, and finds, on a balance of probabilities, that the worker’s difficulties are causally related to her December 4, 2014 workplace incident.

Based on the foregoing, the panel finds that the worker suffered a loss of earning capacity and required medical aid beyond June 4, 2015 as a result of her December 4, 2014 workplace incident and diagnosis of a Somatic Symptom Disorder. The panel returns the file to the WCB to address the issue of the benefits to which the worker is entitled after June 4, 2015 arising from this diagnosis.

The worker’s appeal is allowed as indicated above.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 22nd day of May, 2018