The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to further benefits. A hearing was held on May 1, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits.

Decision

That the worker is not entitled to further benefits.

Background

On November 26, 2014, the worker reported to the WCB that he injured his right knee and the back of his head in an incident that occurred on November 6, 2014, which he described as follows:

I was unloading client files from work truck to secure in hotel room for departure from [location] following morning. Slipped on ice (frozen rain on that day). Right knee gave out and fell backwards. Knocked unconscious for short time. Knee had injury which has worsened since event.

On November 28, 2014, the worker saw his family physician. He reported the incident to his physician, who noted that the worker "said he had a fall on ice. Nobody was around. He possibly lost consciousness for a couple of minutes but remembers everything. He twisted his right knee again and it was more painful now." The worker described having had "some headache and ear ringing afterward for a couple of days to week but both are getting better." It was also noted that the worker had not missed any work. The physician diagnosed him with a meniscal tear.

The worker returned for a follow-up visit with his family physician on December 17, 2014, complaining he had a headache for a couple of weeks. The worker's physician queried whether the worker had a post-concussion headache or subdural hematoma, and ordered a CT scan. The CT scan, performed December 19, 2014, noted a "Normal appearance. No intracranial hemorrhage apparent." At a further follow-up visit on December 23, 2014, the worker's family physician queried "possible BPPV? labyrantitis?"

In an initial discussion with the WCB on January 5, 2015, the worker reported that he was suffering mostly from dizziness and headaches, and his knee was not really bothering him. He also noted that he did not feel that the dizziness and headache had improved since the incident on November 6, 2014.

On February 5, 2015, Compensation Services advised the worker that his claim was accepted for a contusion to both his head and his right knee. Compensation Services stated that given the diagnosis, the expected duration of symptoms, the treatment provided, the current clinical findings and the time that had passed since the workplace injury, they were of the view that the worker had recovered from the effects of his November 6, 2014 compensable injury.

On March 12, 2015, following receipt and review of further medical information from the worker's family physician, Compensation Services advised that there was no change to the decision to disallow further responsibility on the worker's claim.

On August 7, 2015, a worker advisor acting on behalf of the worker, requested that Review Office reconsider the WCB's February 5 and March 12, 2015 decisions. The worker advisor submitted that the worker sustained a head injury at the time of the workplace accident, and was diagnosed with BPPV and post-concussion headaches based on clinical evaluation. In their view, the weight of evidence supported a causal relationship between the worker's ongoing symptoms and the November 6, 2014 workplace injury, and the worker was entitled to benefits.

On September 18, 2015, Review Office returned the file to Compensation Services for further investigation. Additional medical reports from the worker's family physician, physiotherapist, chiropractor, neurologist and a CT scan performed March 25, 2015 were reviewed by a WCB sports medicine advisor, who provided an opinion to file dated January 11, 2016.

On January 12, 2016, Compensation Services advised the worker that the additional medical information which had been provided did not present any new information, and there would be no change to the earlier decisions. 

On April 25, 2016, the worker advisor asked that Compensation Services reconsider their decision based on further medical evidence from the worker's neurologist. On April 28, 2016, Compensation Services advised the worker that they had reviewed the medical information submitted and there was no change in their decisions.

On May 5, 2016, the worker advisor requested reconsideration of Compensation Services' April 28, 2016 decision by Review Office. The worker's representative submitted that consistent medical evidence showing ongoing symptoms and the treating neurologist's March 17, 2016 report supported that the worker continued to suffer from the effects of the November 6, 2014 workplace injury, and should be entitled to coverage.

On June 24, 2016, the employer's representative provided a submission in response to the worker's request for reconsideration, and the worker responded to that submission on August 31, 2016.

On September 9, 2016, Review Office determined that the worker's ongoing loss of earning capacity and need for medical aid were not related to the claim, and there was no entitlement to further benefits. Review Office determined that the injury to the worker's right knee was likely minor and he had recovered from the injury. As such, further benefits associated with the right knee were not related to the claim.

With respect to the worker's head injury, Review Office found that based on the totality of the evidence, they were unable to conclude that the worker sustained a concussion at the time of the workplace injury. Review Office placed weight on the WCB's sports medicine advisor's January 11, 2016 opinion that there was no medical documentation to support that the worker had a disruption in brain function immediately after the head injury. Review Office also accepted the WCB sports medicine advisor's opinion that the probable diagnosis in relation to the workplace injury was a head contusion that would resolve in several days up to a couple weeks with no residual or recurrent physical impairments.

On November 28, 2017, the worker's union representative appealed the Review Office decision to the Appeal Commission, and an oral hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.

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

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

Subsection 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.

Worker's Position

The worker was represented by a union representative, who provided a written submission in advance of the hearing and made an oral presentation to the panel.

The worker's position was that he is entitled to further benefits as the evidence supports that he sustained a concussion as a result of his November 6, 2014 workplace accident.

The worker's union representative submitted that the accident met the stringent criteria set out in the WCB Healthcare Services Position Statement on Concussion (the "Position Statement"). The worker struck his head, lost consciousness, was disoriented and lacked complete memory of the accident.

It was submitted that a letter from the worker's office manager, which was provided in advance of the hearing, validates the worker's account of the serious head injury he sustained, and corroborates his reports that he was struggling to continue working after the accident.

While the WCB placed significant weight on the worker's delay in seeking medical attention, the union representative suggested that his delayed medical assessment was not an issue, but was indicative of the nature of working and living in a rural area where people do not have the same regular access to medical treatment as elsewhere. In any event, the worker saw his family physician roughly three weeks after the accident.

It was submitted that the notes of the initial assessment did not adequately reflect the symptoms which the worker was experiencing at the time. The initial medical investigations and subsequent statements suggest that the worker sustained a concussion and was managing his case accordingly.

The union representative noted that the worker had been seen more recently by a neuro-ophthalmologist, and submitted that his opinion provides further evidence that the worker likely sustained a concussion as a result of his accident and that his subsequent symptoms were consistent with a post-concussion syndrome.

The union representative emphasized that the focus is on what happened at the time of the accident. It was submitted that the worker's evidence and other information which had been submitted confirms that there was, in fact, a concussion as a result of the accident. The worker's treatment providers have all pointed to post-concussion syndrome, and in the worker's view that is the most probable cause of his ongoing difficulties.

Employer's Position

The employer was represented by its Workers Compensation Coordinator. The employer's position was that the worker sustained nothing more than a contusion to his head, from which he has recovered, and is not entitled to any further wage loss benefits or services.

The employer's representative noted that for consideration to be given to post-concussion syndrome as a compensable issue, it must first be established that there was a concussion. He noted that first mention of any diagnosis relating to concussion or post-concussion syndrome was not until July 2015 by the family physician, and the diagnosis of post-concussion syndrome was not suggested until September 15, 2015 by the neurologist.

The employer's representative submitted that the evidence does not support that a concussion occurred or post-concussion syndrome is responsible for the worker's ongoing difficulties. The evidence does not show that the worker suffered any loss of memory of events immediately before or after the accident. There was nothing to suggest that the worker was confused or disoriented, and no evidence of acute neurologic deficit.

The employer's representative noted that there did not appear to be any significant brain injury; there is no medical to support a disruption in brain function immediately after the head injury.

It was submitted that the only factor in favour of a diagnosis of concussion and post-concussion syndrome is the worker's self-reported possible loss of consciousness. The worker described post-accident symptoms of headache, dizziness, irritability, fatigue, poor concentration, but these are symptoms only and cannot be used to conclude that a diagnosis of a concussion has occurred.

In the employer's view, it is clear that the worker experiences psychological distress to the degree that day to day function is related to the psychological distress, but that is something totally different. In their view, the worker's subjective experience of cognitive dysfunction is more likely related to psychological distress and has no relationship to the compensable injury.

Analysis

The issue before the panel is whether or not the worker is entitled to further benefits. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker has sustained a further loss of earning capacity and/or required further medical aid as a result of his November 6, 2014 compensable injury. The panel is unable to make that finding.

The worker has argued that he suffered a concussion, followed by post-concussion syndrome as a result of the November 6, 2014 workplace accident. The panel accepts that the worker fell and sustained a contusion to his right knee and head at the time of the workplace accident, but is unable to find that he sustained a concussion as a result of his fall.

In his submission, the worker's union representative referred to the Position Statement as setting out the criteria to be met to substantiate a diagnosis of concussion. The panel notes that while the Position Statement is not binding on the panel, we understand that it is based on current diagnostic best practices for 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.

In considering the issue before us, the panel places more weight on information provided at or closer in time to the date of the accident. In this instance, the panel notes that the worker acknowledged at the hearing that he currently has difficulty remembering things. Even if past information may be faulty, therefore, the panel generally placed more weight on that evidence which was previously provided as opposed to that which the worker said he remembered at the hearing.

The panel notes that the early evidence indicates that the worker was fully functional after he fell and hit his head. The information indicates that when the worker got up after his fall, he picked up the files he was unloading from his vehicle, closed his trunk and took the files into his room.

The evidence further shows that the worker continued with his regular duties the next day, and there is nothing to indicate that he was experiencing any neurological deficit or cognitive disruption at the time. The worker proceeded to drive a significant distance to his next work location, and to see and speak with clients throughout that day. The worker then had to work on reports, as he was scheduled to be off work on the following Monday and Tuesday, and had to finish them by the end of the day. The worker was able to complete his reports on time and drove again for more than an hour to get home. The panel notes that the level of detail and attention would have required significant brain activity.

The evidence further supports that the worker did not have any memory or cognitive dysfunction in the days, weeks, and months that followed. The worker was able to continue performing his regular duties, which included writing and collating lengthy reports and interviewing or meeting with clients and meeting with other staff. He continued to drive to and attend meetings in various locations in the province. He indicated that he was struggling with stamina issues, but did not recall there being any indication from the employer that his work was suffering or anyone actually saying anything about his work. He did not think he ever had a situation where he had to cut or redo a report; he was "just ploughing through those things." The panel notes that the worker's duties involved managing a complex caseload and multitasking, which required a significant amount of cognitive clarity.

The panel finds that there is insufficient medical evidence on file to support that the worker suffered a concussion on November 6, 2014. The worker first saw his family physician on November 28, 2014, some 22 days after the accident. The panel acknowledges the worker's evidence that this was the first appointment he could arrange with his doctor based on each of their schedules. The evidence indicates that the worker made the appointment when the office manager said that he needed to fill out a report with respect to the incident. Chart notes for the November 28, 2014 visit indicate that the focus of the visit was on the worker's knee, and read in part as follows:

Again on 7 Nov 2014 had a fall in [location] on Ice while was on Duty had heat (sic) trauma 

no body was around tells me that possible lost his consciousness for a couple of minutes but remembers every thing 

so twisted his right knee again and know is more painful 

did not seek any medical attention no rhinorrhea no otorrhea no blood from ears or nose per history taken from him 

has some headache and ear ringing afterward for a couple of days to week but both are getting better 

did not miss any work day so far.

The worker was diagnosed at the November 28, 2014 visit with a meniscal tear. The panel notes that the absence of physical or cognitive symptoms or a diagnosis within weeks of the workplace accident is not consistent with the worker having sustained a concussion.

The panel notes the first reference to "post-concussion" is in the report from the worker's family physician dated December 17, 2014, where he queried whether the worker had a concussion headache or subdural hematoma and ordered a CT scan, which was subsequently found to be normal. The first reference to post-concussion syndrome appears in the October 14, 2015 report from the neurologist in respect of an examination on September 17, 2015, where the diagnosis was said to be "post concussion syndrome." The panel notes that in the absence of a confirmed concussion in the medical file, the presence of any post-concussion symptoms cannot be medically accounted for in relation to the compensable injury.

The panel notes that there is inconsistent information on file as to whether the worker lost consciousness when he fell. Whether the worker experienced a loss of consciousness or not, the panel finds, on a balance of probabilities, that the evidence as a whole does not support that the worker suffered a loss of consciousness at the time of his fall. As previously indicated, the panel accepts that the worker suffered a contusion to his head and his right knee, but is unable to find that the worker suffered a concussion or post-concussion syndrome. The panel is further satisfied that the evidence establishes that the worker's contusion injuries have resolved.

The panel notes that a Neuropsychological Assessment Report of an assessment of the worker performed June 5, 2017, which was submitted by the worker in advance of the hearing, does not support that he experienced a concussion or post-concussion, and reads, in part, as follows:

Current recommendations include:

1. Psychoeducation regarding the natural history and recovery trajectory of mild traumatic brain injury. The worker's] initial injury, as described by him is not consistent with the degree of brain injury that is typically associated with cognitive deficits three years post-injury. Additionally, the later emergence and escalation of symptoms is not consistent with the natural history of mild dramatic (sic) brain injury. 

… 

3. Continued use of external compensatory strategies for memory. Although there is no evidence that [the worker's] memory difficulties are related to brain insult, when one is aware that they continue to make memory slips, this can become quite distressing…

Based on the foregoing, the panel finds that the worker did not sustain a further loss of earning capacity or require further medical aid as a result of his November 6, 2014 compensable injury. The worker is therefore not entitled to further benefits.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 29th day of June, 2018