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 benefits after April 21, 2016. A hearing was held on May 8, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after April 21, 2016.

Decision

The worker is entitled to full wage loss benefits after April 21, 2016 to May 11, 2016 and partial wage loss benefits after that date in accordance with the graduated return-to-work program.

Background

The worker reported on a Worker's Incident Report dated April 19, 2016 that she had injured her buttocks and shoulders in an incident she described as:

I had sat down on a plastic stool. I had been sitting there for a little while and was trying to find a file that was in the bottom of the cabinet. As I was bent forward, the leg of the stool broke and I fell backwards.

The workplace incident was reported to her employer the same day.

On April 20, 2016, the worker contacted the WCB and advised she was feeling nauseous and did not attend work. She confirmed the mechanism of injury with the WCB and further advised that she had not been seen by a doctor yet.

The worker attended at a doctor's appointment on April 21, 2016. The doctor noted the worker's complaints of pain at her right elbow and a bump on her head. She was diagnosed with a right elbow contusion and head trauma. 

In a follow-up discussion with the WCB on April 22, 2016, the worker advised that she had attended at the emergency room that morning as she was not feeling well and was experiencing nausea, dizziness and felt foggy and out of sorts. The symptoms were present when she woke up that morning but she attempted to go in to work anyway. She reported that she felt confused and incoherent when her supervisor would ask her questions and that she had a headache at the back of her head on the right side above her ear. A few hours after she went in to work, she had a coworker go with her to the emergency ward. The worker was seen by a doctor in the emergency ward who diagnosed her with a concussion and recommended she be off work for a week.

On April 27, 2016, at an appointment with her family doctor, the worker was diagnosed with a concussion and a right elbow strain. It was recommended that she remain off work for another week. At a follow-up appointment on April 29, 2016, the worker reported that her nausea was better, her right elbow was still sore with some weakness and occasional headaches. The doctor noted that the worker could likely return to her regular duties the following week. At her May 9, 2016 doctor's appointment, the worker's doctor recommended that she return to work on a graduated program starting on May 11, 2016, set out as four hours a day, one day a week on the first week, four hours a day, three days a week the second week and four hours a day, five days a week on the third week.

At the request of the WCB, a WCB sports medicine advisor reviewed the worker's claim on May 10, 2016. The WCB sports medicine advisor opined that the probable diagnosis for the worker was a right elbow and head contusion that should resolve in several days to weeks. The WCB sports medicine advisor further noted that based on the April 29, 2016 clinical examination of the worker, the diagnosis at that time was a resolving head and right elbow contusion and total disability was not supported based on the examination findings. It was also noted that contusions of the head and elbow do not normally require restrictions of physical activities. The WCB sports medicine advisor also found that if the worker had sustained a concussion, as noted by the worker's treating physician on April 19, 2016, no specific restrictions would be recommended other than to avoid activities with high risk of head trauma.

On May 25, 2016, the WCB advised the worker that wage loss and medical aid benefits had been authorized up to April 21, 2016 inclusive. The worker was advised that her ongoing medical issues could not be related causally to the workplace incident on April 19, 2016 based on the lack of any immediate subjective or objective evidence of a disruption in brain function or any head related injury. The worker was further advised on July 5, 2016 that there was no change in the May 25, 2016 decision after a review of additional medical evidence.

At an initial appointment with a physiotherapist on June 3, 2016, the worker was diagnosed with post concussion syndrome. The physiotherapist recommended that the worker be off work for two weeks, then could return to work on modified hours of three days, not consecutive, of four hours per day.

On August 19, 2016, the worker's representative requested reconsideration of the WCB's decisions to Review Office. The worker's representative disagreed with the WCB's decision that the worker was not entitled to benefits beyond April 21, 2016. It was submitted that the worker was entitled to full wage loss benefits from April 22, 2016 to and including May 23, 2016, as well as wage loss benefits after that date for any period of time she was unable to work due to the effects of her workplace injuries. The worker's representative based this opinion on their belief that the worker experienced a loss of earning capacity due to the workplace injuries that required complete rest from work for a short period of time and because the worker's employer was unable to accommodate what they believed were compensable medical restrictions.

On September 29, 2016, the discharge report from the worker's physiotherapist noted that the worker was at "95% recovery" and was resuming regular duties and hours on October 3, 2016.

Review Office, on October 19, 2016, determined that the worker was not entitled to wage loss benefits beyond April 21, 2016. Review Office found based on the mechanism of injury and the medical evidence in closest proximity to the workplace accident, that the worker sustained a right elbow and head contusion and concluded that a more significant injury did not occur. The information provided did not indicate that the worker experienced a loss of consciousness, an alteration in mental state, loss of memory of the events immediately before or after the injury or an occurrence of an acute neurologic deficit and accordingly, Review Office found that the worker did not meet the criteria for a concussion in accordance with the WCB Healthcare Services Concussion Statement. Review Office notes that the worker was cleared to return to work by the doctor on April 21, 2016. The worker returned to work on April 22, 2016 but reported worsening symptoms of headache, dizziness, nausea and confusion and went to the hospital. Review Office was unable to find a causal relationship between the worker's symptoms and her compensable injury of an elbow and head contusion. Review Office determined that based on the compensable diagnosis of a contusion to the worker's elbow and head, as supported by the medical evidence provided, the worker would not have been restricted from working her job duties. As such, Review Office found that the worker was not entitled to wage loss benefits beyond April 21, 2016.

The worker's representative filed an application with the Appeal Commission on April 3, 2017. An oral hearing was held on May 8, 2018.

Reasons

Applicable Legislation

The worker is seeking further benefits beyond April 21, 2016.

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors. Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Under subsection 4(2), a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 27(1) of the Act provides that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident." Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.

WCB Healthcare Services has developed a position statement on concussions which provides guidance for reviewing cases where a concussion is alleged to have occurred.

Worker's Position

The worker was represented by a worker advisor. The worker also answered questions from the panel.

The worker's representative noted that the worker has an accepted claim relating to head and right elbow injuries. The WCB approved two days of wage loss benefits and physiotherapy treatment directed at the worker's right arm from June through to the end of September of 2016. The worker believes that she also injured her shoulders and neck on April 19, 2016 and is seeking wage loss benefits after April 21, 2016.

The worker's representative noted that the worker is seeking reimbursement for a defined period of entitlement, namely, April 22 to October 3, 2016, less any hours she worked in between, the latter date being when her treating physiotherapist discharged her from care noting she was 95 percent recovered, and capable of resuming regular duties and hours.

The worker's representative also noted that medical reports on file list various diagnoses, including a concussion, post-concussion syndrome, head trauma and contusion, elbow strain, elbow contusion, cervical spine and forearm strains.

He submitted there is no evidence of a pre-existing condition or symptoms to account for the worker's time loss after April 21, 2016 except for her report to the adjudicator of shoulder soreness the week prior to the accident, for which she missed two days of work.

He noted that the WCB medical advisor stated that the April 29, 2016 medical findings supported the continued presence of both injuries, with expected resolution of both within a number of weeks.

He also noted that on April 27, 2016, the attending physician observed very tender soft tissue swelling in the worker's right occipital region, right neck and elbow tenderness. This was in addition to the worker's complaints of pain, headache, fogginess and nausea.

The worker's representative submitted that WCB policy 44.40.10, Evidence of Disability, which provides that compensation benefits are payable only when there is medical or similar evidence of a disability arising from a compensable incident or condition, supports the worker's position. He said that the worker's symptoms are medical, or similar to medical evidence, resulting from her compensable accident and conditions.

The worker's representative submitted that:

If the panel does not agree with the healthcare providers who diagnosed the worker with a concussion, we submit at minimum her symptoms of nausea, headache and dizziness are consistent with a head contusion, and that these symptoms, in addition to the other noted injuries, disabled the worker from working after April 21, 2016.

He noted that the employer informed the WCB that any identified work restrictions would be accommodated, and that alternate or modified duties were offered to the worker on April 20, 2016. He also noted that a return to work did not commence until either May 17 or 24, 2016 and that shortly after the worker's treating physiotherapist recommended rest for two weeks followed by a resumption of modified hours and duties. He said that the physiotherapist's recommendation, combined with treatment, permitted the worker's return to regular duties and hours in the beginning of October.

The worker described the mechanism of injury. She said she was sitting on a stool, which was estimated to be 16 inches high, leaning forward looking for a file in a drawer when the right back leg of the stool broke. She said that she "went flying backwards".

In reply to a question, the worker advised that:

I went straight back on my head, shoulder, arms. I just remember being down on the ground, flat.

The worker acknowledged that after the accident she completed her shift. She stayed at her desk for the balance of the day. She advised that she drove home and added that:

I felt sick and I was crying and upset. And then I went home, I phoned the WCB and gave all the information.

She advised that the next day she went to a walk-in clinic as her physician was not available. The physician told her she could return to work. The worker said that she returned to work as directed but felt sick and was crying and upset.

The worker also attended an emergency ward and noted that the physician told her that she had a "black and blue" bruise on the right side of her head behind her ear.

The worker confirmed that her treating physiotherapist advised that she was capable of resuming regular hours and duties in early October and that she did return to work. She agreed that it was a gradual return to work and that her employer supported her during that time. She continues to work full-time.

In reply to a question from the panel, the worker described her duties as an accounts payable clerk. The duties included keying in invoices all day with a small keypad, answering phone calls on related matters, and minimal filing. She said she works in a group of about 25 staff. Her hours are from 7:30 to 3:30. She said after the incident, she does not recall doing much for the balance of the day.

Regarding whether the worker had a concussion or post-concussion syndrome, the worker's representative stated that:

At the same time, I don't think that the decision ultimately falls to the name for her injuries. I think that wage loss entitlement, based on a loss of earning capacity, you look at, is there disablement from working at that time, and I would rely on, if you're experiencing dizziness, headaches and nausea, whether her duties were physically demanding or not, I think that that is a reasonable justification for her to be authorized to be off work, certainly in the early stages of the claim.

In reply to a question about the different symptoms from April to June, the worker's representative commented:

I would be inclined to say you could still look to, perhaps not connecting all of the symptoms documented at that time to the initial accident, but if it's accepted that some of those symptoms and some of those findings were caused by the accident, then just assessing, does it seem justifiable that the worker needed that two-week time period off followed by the gradual return to work.

In my mind, as long as there's a component of a compensable condition playing, if you want to say, a material role, in the implementation of restrictions or to, for a person to remain off work, I think that wage loss entitlement, that there should be a wage loss entitlement for that.

Employer's Position

The employer was represented by an employer advocate. The employer representative advised that the employer does not agree that the worker is entitled to wage loss benefits after April 21, 2016. She submitted that the employer saw no reason why the worker couldn't continue working in her sedentary clerical position after that incident.

The employer representative advised that the compensable diagnoses were contusions to the head and right elbow, and that the employer agrees with the WCB position that the worker did not have a concussion.

The employer representative said that the worker's evidence at the hearing differed from her evidence immediately after the accident.

The employer representative submitted that:

The worker incident report, which was completed on the day of injury, cited an area of injury to the buttocks and shoulders. [The worker] complained of feeling achy and sore all over with a tingling sensation in her right neck and shoulder. There was no mention of a head injury or falling onto her head.

She said that on the day of the accident there was no indication made to them that the worker was confused or distressed, or had any difficulties. The worker continued working the full day, the rest of the shift, without any noted difficulties or complaints to the employer.

The employer representative noted that the report dated April 20, 2016, indicated that the worker had pain in her lower back and buttocks but does not mention a head injury.

The employer representative also noted that the worker called in sick the next day and did not mention the workplace incident the day before as the reason for calling in sick. She said that the worker had called in sick for two days in a row just before the incident, and the employer assumed it was a continuation of the illness she had called in with before.

Regarding the medical information, the employer representative noted that the first medical report refers to pain in the right elbow, and a bump on her head, but no laceration. There was no indication of any concussion-like symptoms.

The employer submitted that the worker's report of nausea and a sense of not feeling well on April 20 is not consistent with a concussion where the symptoms would be evident immediately or at least soon after the incident.

With respect to the worker's representative's comments on the employer's delay in offering light duties, the employer advocate commented:

In fact, her clerical duties are sedentary and they’re really the sort of work duties that employers do give to employees who are injured on the job. They're sedentary, they're not labour intensive, they're not physically demanding in any way.

The representative noted that the May 9, 2016 modified duty form noted headaches and weak arm and indicated that the worker can return to work on May 11 with restrictions to be reassessed May 27. However, the worker did not resume working.

She said that the worker's delay in returning to work is not due to delays by the employer.

The employer's representative asked that the panel accept the WCB sport medicine advisor's opinion of May 10, 2016, that the probable diagnosis was head and elbow contusions, with resolution in several days to weeks. The April 29, 2016 clinical examination findings did not support total disability. It noted there was right elbow tenderness, but no range of motion or strength deficits. It found no subjective or objective evidence of disruption in brain function.

The employer representative noted the WCB position statement on concussions indicates there must be the application of force to the brain of sufficient intensity either from blunt trauma to the head and acceleration or deceleration mechanism, to result in one or more of the following immediate manifestations, observed or self-reported loss of consciousness. She submitted that the worker's case does not meet these requirements. She noted that when the worker's employer talked to her she wasn't confused and she didn't lose consciousness.

The employer's representative noted that approval was given for physiotherapy for the worker's elbow injury and questioned whether this was appropriate. The representative also noted that the physiotherapist diagnosed post-concussion syndrome, a cervical spine strain, and a forearm strain. She noted that the WCB did not accept these diagnoses.

The employer's representative noted that the worker returned to work on June 20, 2016, but only at four hours a day, three days a week. On October 3, 2016, almost six months post-injury, she resumed her full regular duties.

In her closing comments the employer's representative noted that:

Even still, none of those symptoms, even if you did say they were related to the compensable injury, which we don't feel they are, none of them should have kept her from doing her regular duties as a clerical accounts payable clerk. The work duties are sedentary, they're not physically taxing. There really isn't a good explanation related to the compensable injury why she couldn't work.

Analysis

The worker is seeking wage loss benefits after April 21, 2016. For the appeal on this issue to be accepted, the panel must find that the worker suffered a loss of earning capacity after April 21, 2016 as a result of her April 19, 2016 work injury.

For the reasons that follow, the panel finds, on a balance of probabilities, that the worker is entitled to benefits after April 21, 2016.

The panel accepts the worker's description of the accident, specifically that she hit her left elbow and head on the floor when the leg of the stool broke. Head contact was confirmed by the bruising noted when the worker attended an emergency department soon after the incident.

The panel finds that the worker sustained a right elbow and head contusion as diagnosed by a WCB Medical Advisor on May 10, 2016. The panel also finds that the injury caused symptoms consistent with this report including headaches and nausea. These ongoing symptoms were related to the workplace injury, and the panel finds that they affected the worker's ability to return to her highly technical regular duties beyond April 21, 2016.

The panel finds that the worker is entitled to wage loss benefits in accordance with the return to work plan submitted by the worker's treating physician on May 10, 2016. This plan authorized a return to work on May 11, 2016 with modified duties and a gradual return to work over a three week period. Accordingly, for the period prior to May 10, 2016, the worker is entitled to full wage loss and for the period commencing May 11, 2016, the worker is entitled to partial wage loss.

As to the proposed diagnoses of concussion and post concussion syndrome, the panel considered the evidence in light of the WCB Healthcare Services Position Statement - Concussion. The panel finds there was insufficient evidence to establish that the worker sustained a concussion on April 19, 2016. We find, on a balance of probabilities, that the evidence does not satisfy the conditions noted in the statement and that the worker did not sustain a concussion.

The worker's appeal is approved in part.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, 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