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 wage loss and medical aid benefits after May 5, 2015. A hearing was held on October 3, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after May 5, 2015.

Decision

That the worker is entitled to wage loss and medical aid benefits after May 5, 2015.

Background

On January 6, 2015, the worker was holding a student on her lap while in a rocking chair when the student "suddenly banged backwards. My head hit the back of the rocking chair. I was so stunned. He hit me in the mouth, chin area…I felt like my brain was rattled. I felt like I had whiplash. I haven't had whiplash but I imagine it would be like this. Some nausea."

Following the accident, the worker attended a dentist for treatment and was seen by her family physician. The WCB accepted the claim based on the initial diagnosis of post traumatic headache. On January 9, 2015, the treating physiotherapist's diagnosis was a neck sprain and post concussion symptoms. When seen by a second physician on March 5, 2015, the worker was diagnosed with post concussion syndrome.

On March 25, 2015, the worker was seen at the WCB's offices for a call-in assessment. The WCB medical advisor noted that the worker "sustained a low force blunt trauma to her face then the back of her head when the student pushed back against her…This mechanism is mostly likely to cause a contusion to the areas of direct impact. There would also be a slight acceleration/deceleration or extension/flexion injury to the neck and shoulder region. This may produce a strain/sprain type of injury. The worker's presentation does not meet the WCB Healthcare Position Statement to confirm the diagnosis of concussion…It is the worker's symptoms of headache, dizziness, and impaired cognition that are affecting her work tolerance. These cannot be medically accounted for in relation to the compensable injury."

In a decision dated April 9, 2015, Compensation Services wrote the worker to advise that, based on a review of the file information, it was felt that she had recovered from the effects of the compensable diagnosis of a neck strain and that the diagnosis of post-concussive syndrome/symptoms was not causally related to the January 6, 2015 accident.

On May 8, 2015, Compensation Services wrote the worker to advise that the medical reports from her treating physician dated April 22 and May 6, 2015 were reviewed and they did not support a change to the previous decision dated April 9, 2015.

On November 17, 2015, the Worker Advisor Office wrote to Review Office indicating that the worker was appealing the decisions dated April 9 and May 8, 2015. The worker advisor outlined the position that the worker had not recovered from the effects of the January 6, 2015 workplace accident by April 21, 2015 and that this was supported by the treating physician. It was felt that the worker's persistent symptoms, for which she continued to seek out and attend medical treatment, prevented a return to work at full hours, which justified the reinstatement of wage loss benefits.

In a decision dated January 15, 2016, Review Office determined that there was entitlement to benefits beyond April 21, 2015. Review Office noted that the file evidence supported that the worker had injuries to her mouth, lips and jaw and that she suffered from post traumatic headaches as diagnosed by her doctor, but not specifically a concussion. Review Office felt that the worker had not recovered and was still dealing with the sequela of her compensable accident when she saw the WCB healthcare advisor on March 25, 2015. Review Office further stated:

…given the concerns of the worker and her treating healthcare professionals regarding a concussion or post concussive symptoms, the worker severely limited her activities and essentially prolonged her return to normal activities. The continuity of symptoms and treatment form a causal relationship to the worker being struck on January 6, 2015.

Given the causal connection between ongoing symptoms and the compensable accident, a period of reintegration in the form of steadily increasing activities, work and therapy would have been optimal for the worker to regain her pre-accident function. A patho-anatomic diagnosis is not explained in relation to the compensable accident and specific restrictions are no longer necessary…It is the opinion of the Review Office sufficient time was not provided to the worker for her to re-establish her normal duties and routines and as such, she is entitled to benefits beyond April 21, 2015…Further benefits (wage loss and medical aid) will be determined by Compensation Services in keeping with a reasonable period of time to aid the worker in reintegrating into her normal activities.

In a memo to file dated January 19, 2016, the case manager stated that she called the worker's employer to discuss the Review Office decision. The case manager noted that upon her review of the decision, a graduated return to work to her pre-accident duties would have been appropriate to assist in integrating the worker to the work force. It was confirmed that the worker's regular hours were 5.5 hours per day. Based on 5.5 hours per day, a graduated return to work plan effective April 22, 2015 would have been considered reasonable:

April 22, 2015 to April 28, 2015 - 2 hours per day

April 29, 2015 to May 5, 2015 - 4 hours per day 

May 6, 2015 - resume her full hours of 5.5 hours per day

The employer advised the case manager that partial wage loss benefits from April 22 to May 5, 2015 should be issued to the employer as the worker was paid by the employer sick time during this period.

In a memo to file dated January 25, 2016, the case manager noted that she spoke with the worker regarding the decision made by Review Office. The worker indicated that she was still disabled from work and had no plans to try a return to work. The worker indicated that she was still experiencing symptoms such as headaches, trouble walking and sleeping difficulties.

In a letter by Compensation Services dated January 25, 2016, the worker was advised that she was entitled to reimbursement of partial wage loss benefits for the period April 22 to May 5, 2015, at which time she would be back to her full regular hours of 5.5 hours per day.

In a submission to Review Office dated March 23, 2016, the worker advisor stated they were seeking reversal of the decision dated January 25, 2016. The worker advisor referred to file evidence to support that the worker was entitled to full wage loss benefits for the duration of any graduated return to work period. Attached with the submission was a report from a neurosurgeon dated February 12, 2016 that supports the worker was suffering from post-concussion syndrome. The worker advisor stated "If the Review Office does not concur with this, or does not accept that the worker's post-accident symptoms are consistent with post-concussion syndrome, we nonetheless submit she remains entitled to wage loss and medical aid benefits beyond May 5, 2015 based on the continued presence of post-traumatic symptoms caused by the accident, which disabled her from working."

On April 29, 2016, Review Office determined that an overpayment of benefits occurred between April 22 to May 5, 2015 and that there was further limited/conditional entitlement to benefits beyond May 5, 2015.

Review Office stated in it is decision that it did not agree with Compensation Services decision to pay partial wage loss benefits from April 22 to May 5 as the worker was not offered suitable work after their previous ruling was issued.

Review Office placed weight on the worker's perception of her level of disability as outlined in the WCB memo of January 25, 2016 and determined that the fundamental reason for her not returning to work to that point arose out of this. Since the underlying condition had previously been determined to be non-compensable, Review Office concluded she was not entitled to wage loss benefits for the period April 22 to May 5, 2015.

Review Office considered the submitted medical report of February 12, 2016 but did not place weight on the specialist's findings as they were based on limited objective findings without a review of the totality of the evidence seen on the claim file. Review Office preferred the WCB medical opinion. Review Office indicated that they were returning the file to Compensation Services to arrange a transitional return to work plan of no more than 4 weeks in length, to be completed prior to June 30, 2016. It stated that Compensation Services should provide partial wage loss and medical aid benefits deemed appropriate to assist the worker in getting back to work.

On July 29, 2016, the worker advisor appealed Review Office's decision dated April 29, 2016 to the Appeal Commission. An oral hearing was arranged for October 3, 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 May 16, 2018, the appeal panel met further to discuss the case and render its final decision on the issues 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.

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Subsection 27(1) provides that the WCB may provide the worker with such medical aid as the board considers necessary to cure and provide relief from a work injury.

Subsection 39(1) of the Act provides that wage loss benefits will be paid: "…where an injury to a worker results in a loss of earning capacity…"

Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.

For cases involving concussions, the WCB Healthcare Services has developed the Healthcare Services Position Statement on Concussions (hereinafter referred to as the "Concussion Statement").

The worker has an accepted claim for a workplace injury on January 6, 2015. She is appealing the WCB decision that denied responsibility for certain difficulties which she asserts are related to the compensable injury. She is seeking further benefits in relation to her accident of January 6, 2015.

Worker's Position

The worker was represented by a Worker Advisor and her husband. The worker answered questions from the worker advisor and the panel.

The worker's representative submitted that:

Our position is that the majority of evidence contained on the worker’s claim file, in addition to the new information we supplied to the panel in advance of today’s hearing, supports that she has not, to this date, recovered from the effects of her January 6, 2015 workplace accident.

If this panel agrees, benefits should be reinstated because the worker’s cognitive deficits and other physical symptoms disable her from returning to work in any capacity, let alone to her pre-accident position as an educational assistant…

Consistent with the reports of the various healthcare practitioners who have assessed the worker since her accident, our position is that the worker suffered a concussion, and thereafter developed post-concussion syndrome. Although we contend that the WCB-used concussion criteria should not be the sole measure to determine whether someone sustained such an injury, in the event that this panel decides to apply the criteria, the early file evidence suggests the criteria are met.

Moreover, the worker’s position is that her January 2016 typed statement, which the panel has in its possession, is the most accurate account of what took place on the accident date, as well as what she experienced in the days following. In our view, the content of this letter also establishes that the concussion criteria have been satisfied.

The worker's representative reviewed the WCB concussion criteria as set out in the Concussion Statement and the WCB medical consultant's application of the criteria.

He disagreed with the medical consultant's opinion that the force involved with the injury to the front and back of the worker's head were too minor to have caused a brain injury. He noted that the actual amount of force applied to the worker’s brain is unknown. He also noted that the WCB position statement does not define the word "sufficient".

Regarding a loss of consciousness, the worker's representative suggested that the worker's January 2016 statement indicates that she likely was unconscious for a time, but did not realize it because she remained in the same position, seated in a rocking chair, both prior to and after the accident.

He noted that the alteration of mental state is another of the WCB concussion criteria. He said that the file information, namely, her WCB accident report states that she felt stunned by the blows to her head, that her brain felt rattled, and that she experienced whiplash. He also noted that the worker had difficulty remembering the events, including the names of people in the staff room to whom she reported her symptoms.

He noted that notwithstanding the above noted information, the medical consultant noted that the worker was not observed to be disoriented and/or confused. He noted that the criteria allows for an alteration in mental state to be self-reported or observed by another person.

Regarding the worker's memory, the worker's representative noted that the medical consultant stated that the worker had no amnesia. He contrasted this with her evidence that she had trouble remembering the names of coworkers she had contact with in the staff room. He also submitted that the fact that the worker made her way to a staff room and reported to work the following day does not negate that she likely was disoriented immediately after sustaining blows to her head as was suggested by the medical consultant.

The worker's representative noted that with the exception of the WCB medical consultant, every healthcare provider who has examined the worker has diagnosed her as suffering from post-concussion syndrome.

He submitted that the WCB did not give sufficient weight to the significant changes the worker has experienced following her workplace accident. He referred to the letters provided by the worker which address this issue.

The worker's representative submitted that the totality of evidence supports the finding that the worker had not recovered from the effects of her workplace accident by May 5, 2015.

The worker provided evidence regarding the impact of the accident upon her life including:

• walking is difficult 

• suffers from fatigue 

• gets ringing in the ears • gets disoriented 

• gets dizzy 

• trouble falling asleep, staying asleep 

• headaches all the time 

• often wear earplugs in louder situations 

• gets confused, especially if interrupted 

• has difficulty with concentration and has stopped attending a speaking club 

• sensitivity to light and noise

The worker's husband provided evidence regarding the changes he has noted in his wife, the impact on their family and on others.

In reply to a question from the panel, the worker described the incident including the details of the chair she was sitting in, the accident including the mechanism of injury, and the events leading up to and after the accident.

The worker provided a detailed description of the accident including the following:

Answer: I’m in this rocking chair, waiting. I had a book in my hand, and the boy came, the boy came up and stood really, really quickly in front of me. And when he -- and in a split second, when he sat in front of me, I realized, I am not going to read in this rocking chair, we’re going to read on the ground, right, that’s where we always read. So I was in the process of putting down the book. He came, and standing in front of me, came very quickly and sat at the end of my knees. By sitting at the end of my knees, that jerked me, I really -- so I’m not leaning against the chair. I’m midway, like, I’m not midway, I’m sliding away from the back of the chair because I’m putting it to the side. When he sat at the front on my knees, when he lit (sic) there, that jerked me forward.

Question: So he actually sat on the front of your knees?

Answer: Right on my knees, because --

Question: Not on your lap, but on the front of your knees?

Answer: No, no, no, he wasn’t sitting on my lap at all. He came on my knees, and it was a jerk. So I’m leaning forward, and when he did that, I jerked forward. Like, a two-year-old, all I remember him is stomping like a, you know, if he could plant the feet and going like that. 

That’s the last that I remember before I heard the whack-whacks. So I had the rocking chair jerking me forward with him sitting on my knees, and at the same time, him as a two-year-old pendulum --

Question: Don’t guess.

Answer: Shoving, shoving his back, like a head butt back. That’s all I could think of.

Question: And then, sure, don’t have to look for something around, but, so he sits on your knee, you come forward, he comes back, and where did he strike you? Where --

Answer: I don’t know exactly where he struck me, but I just had a broken, a bleeding lip, my face turned all red, my neck and my arms. I don’t know exactly where he hit me, but it had to be somewhere around here, like I even, I don’t know, somewhere around here, pushing my neck back. I’m not sure, I don’t know that part. I just know I had a very sore mouth and bleeding lip, and my back and my head was sore.

The worker answered questions regarding the medical treatment she received including visits with her family physician, dentist, physiotherapist, psychiatrist, neuropsychologist, vestibular physiotherapist, neurologists, numerous tests, and her meeting with a WCB medical consultant.

The worker described her attempts to return to work.

Regarding her current condition, the worker advised that her condition has improved somewhat. Her husband noted that things like turning up the music and turning up the TV, can cause her to deteriorate.

In response to a question about what a normal day is, she replied, in part that:

• gets up about 6:30 

• spends about the next half hour to 40 minutes doing the initial physiotherapy exercises which help with balance 

• does stretching 

• after her family leaves in the morning she starts to tidy up the house, cleans the house and does laundry 

• everything takes longer. 

• lies down and covers her eyes "to stop my eyes from moving and jiggling around, to stop, stop my eyes from moving and jiggling around and talking to my head." 

• has lunch 

• may do some gardening 

• may talk on the phone but for a brief period only 

• does meditation.

She added that:

• makes meals 

• does all things in small intervals and slowly 

• she is forgetful, has forgotten pots that are boiling 

• during the day she break things down further and perform duties like vacuuming, filling up the dog food 

• makes lots of notes 

• she is able to drive to the downtown area from her residence to attend meetings at an organization for persons with similar injuries

The worker advised that does not watch TV, use the computer, or play music, as these activities provide too much stimulation.

The worker's representative submitted that:

When you look at everything together, including [husband] and [worker's] evidence today, I think it supports that she was concussed, and is still suffering the effects of that injury…

Subsequent to the adjournment of the oral hearing, the panel sought information from a physiotherapist who treats persons with vestibular injuries. The physiotherapist provided a written reply and attached related correspondence for consideration by the panel.

The worker's representative provided a written response to this information. He requested that the panel considered the workplace accident as the cause of the worker's Benign Paroxysmal Positional Vertigo (BPPV) condition as described by the physiotherapist.

The panel also sought information from a consulting neuropsychologist. The neuropsychologist provided a written response on April 20, 2018.

The worker's representative provided a written response to this information. He submitted that the neuropsychologist's reply supports that the worker sustained a concussion. He concluded that the evidence strongly supports that the worker sustained a concussion from the workplace accident.

Employer's Position

The employer did not participate in the appeal.

Analysis

The worker is appealing the WCB decision that she is not entitled to further benefits in relation to her accepted accident of January 6, 2015. For the worker's appeal to be approved, the panel must find that the worker sustained a loss of earning capacity and required additional medical aid benefits after May 5, 2015 as a result of the workplace injury. The panel is able to make this finding.

The panel notes that the WCB decision was based largely on the medical opinion of a WCB Medical Advisor who conducted an examination of the worker on March 25, 2015. Of note is that the Medical Advisor considered the worker's claim in light of the Concussion Statement. This statement, published in 2015, is not binding on the panel, however, the panel finds it to be a useful guide in determining issues related to concussions and has considered it in our review of the evidence.

The panel found the worker to be credible, providing evidence that was both favourable and unfavourable to her positon. The panel accepts the worker's description of the accident and specifically, her description of the hard blow to both her face and the back of her head, her immediate response of being stunned, her uncertainty of whether she lost consciousness and her subsequent and ongoing symptoms. The panel finds that her description of the event and her immediate response is consistent with the Concussion Statement.

The panel has also considered the medical information on the worker's file. There is, in the panel's opinion, sufficient medical evidence to support a finding that the worker sustained a concussion. This includes the following:

• January 8, 2015 family physician chart, note dated 2 days after the incident.

• October 7, 2015 report of neuropsychologist who referred worker to a concussion clinic and noted:

"her pattern of neurocognitive deficits, including reduced processing speed, immediate recall following prolonged interference, phonemic fluency, and poor deductive reasoning is not uncommon following concussion…"

• February 12, 2016 report from a concussion program director (noted specialty-neurosurgery):

"[name] is a 59 year old female who meets the clinical criteria for post-concussion syndrome…I recommend she undergoes further evaluation by [name] a vestibular physiotherapist. I also suggest she begin a graduation return to work program as tolerated."

• September 7, 2016 report of psychologist who noted:

"I have heard from her that she has sleep maintenance problems, energy is low, appetite is variable, and she is destressed, agitated, sad, down, low, sometimes hapless, and she has increased depression, and I think what I was seeing here was a woman who has a Major Depressive Disorder with anxious distress, some agitation, and she is reporting symptoms that would be consistent with having a concussive injury…"

• September 19, 2016 report of a psychiatrist opined who that:

"[name] has had a clear change in her cognitive functioning subsequent to the head trauma. I agree with other physicians' impression that she has some kind of post-concussive deficits likely due to an organic brain syndrome…

I have seen other individuals who experienced persistent and debilitating changes after head trauma that seems out of proportion to the initial assessment of the injury, as with [name]. I again would emphasize that I do not see her symptoms as psychogenic.

• September 15, 2017 report of a physiotherapist who conducted a vestibular assessment on September 14, 2017:

"[worker] has photophobia and phonophobia. These in addition to her subjective reports and assessment findings are suggestive of vestibular migraine, with and without pain. This is not unusual post head trauma."

In addition to the medical evidence, the panel finds that there is sufficient other evidence, primarily the worker's description of the incident and subsequent symptoms, to support a finding that the worker sustained a concussion. The panel finds that the worker's description of the accident is consistent with the Concussion Statement requirement for a blunt head trauma. The worker describes herself as being confused after the incident. She also indicated that she believes that she lost consciousness.

Given the above, the panel finds on a balance of probabilities that the worker is entitled to wage loss and medical aid benefits after May 5, 2015. In making this decision, the panel has not addressed the issue of the length of wage loss benefits or specific medical aid benefits that the worker is entitled to receive. These are to be addressed by the WCB.

The worker's appeal is approved.

Panel Members

A. Scramstad, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 12th day of June, 2018