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 further benefits in relation to the February 14, 2017 accident. A hearing was held on September 25, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits in relation to the February 14, 2017 accident.

Decision

The worker is entitled to further benefits in relation to the February 14, 2017 accident up to her return to work on July 30, 2018.

Background

The worker reported an injury to her head to the WCB on March 6, 2017. She described the incident that occurred on February 14, 2017 as:

I was walking into work. I was under the roof in front of the front doors. This happened at 7:55 and I start at 8:00. I think my employer leases the property the building is on. I hit a patch of ice and fell backwards and hit my head on the cement. I got up, I walked into the store. I went upstairs to my manager's office and sat down. I took some [medication] and used ice on the back of my head. I was driven by a co-worker to a walk-in clinic. I did not finish my shift.

As noted by the worker, she was driven to a local walk-in clinic by a co-worker. She reported headache, neck pain, dizziness, wobbly walking, swelling on her head, nausea but no vomiting and that she did not lose consciousness. The physician diagnosed the worker with a closed head injury, concussion, musculoskeletal neck pain and recommended that she be off work until February 18, 2017.

At a follow-up appointment with the physician on February 17, 2017, it was noted that the worker was improving and could return to her regular duties on February 21, 2017. The worker advised the WCB in a discussion on March 15, 2017 that she had returned to her full-time duties but was having ongoing problems with headaches and attended at her family physician's office on March 14, 2017. She was provided with a sick note that recommended she be off work for two weeks until March 28, 2017.

On March 24, 2017, the worker attended a follow-up appointment with her family physician who noted "ongoing daily headache, no nausea, photophobia variable levels, phonophobia, no numbness or tingling, no weakness, poor concentration, short term memory problems, appetite is reduced, wears sunglasses at all time when outdoors." The treating physician referred the worker to a concussion clinic and recommended she remain off work until she had been seen at the concussion clinic and a recovery program had been developed.

The worker was diagnosed with "post-concussion syndrome - visual and cervicogenic" at her initial appointment with a physiotherapist at the concussion clinic on April 6, 2017. The worker reported constant and severe headaches, light and noise sensitivity, poor memory and concentration, inability to do computer work and increased emotional and anxiety. The physiotherapist recommended that the worker remain off work and referred her to a neuro-optometrist for a function visual assessment and visual therapy.

On April 25, 2017, the worker attended a call-in examination with a WCB medical advisor. The WCB medical advisor opined:

She presented today with ongoing head and neck pain. She reported multiple symptoms such as phonophobia and photophobia, tinnitus, impaired memory and cognition, fatigue, decreased energy, and impaired mood.

On examination, she had a normal neurological examination. She had essentially a normal neck examination.

As such, there are no objective findings of a significant brain or neck injury. The presentation would be termed a non-specific head and neck injury.

[…]

Based on the mechanism of injury, the lack of objective findings, and the natural history of any expected injury, it would be expected at this time the worker should be able to tolerate work activity. Her regular duties are mostly sedentary in nature. As such, she should be able to tolerate a return to half time hours for a week, three-quarter hours for a week, and then full hours. There would be no contra-indication to return to normal activity in relation to this nonspecific head and neck injury. She reports her biggest problem to be with her eyes and concentration, etc., but those could not be medically accounted for in relation to this compensable injury.

On May 25, 2017, the WCB confirmed with the worker her graduated return to work plan. The schedule was set out as:

May 28 - June 3/17: 2 hours per day, 5 days per week.

June 4-10/17: 4 hours per day, 5 days per week.

June 11-17/17: 6 hours per day, 5 days per week.

June 19/17 Return to regular work hours.

On June 2, 2017, the worker was advised by the WCB that her wage loss benefits were suspended as she had failed to participate in the graduated return to work program set out by both the WCB and her employer, based on the recommendation of her family physician. The WCB advised the worker that the medical information had been reviewed by the WCB medical advisor who confirmed the opinion that the worker was fit to participate in the graduated return to work program.

The worker's representative requested reconsideration of the WCB's decision to Review Office on November 10, 2017. The worker's representative noted that the WCB's decision that the worker was medically capable of participating in a gradual return to work program was incorrect and the worker was still suffering from symptoms of post-concussion syndrome. Review Office returned the worker's file to the WCB on November 15, 2017 for further investigation as to whether or not there was further entitlement to medical aid or wage loss benefits beyond May 29, 2017 and if so, to what extent.

On November 30, 2017, the WCB advised the worker that based on a review of her claim, it was determined that she was entitled to benefits to June 18, 2017. The WCB advised that as the worker was scheduled to return to work on a graduated basis, which plan was due to end on June 18, 2017 and the worker failed to return to work after that date, her wage loss benefits were terminated as of June 18, 2017.

On December 7, 2017, the worker's representative requested reconsideration of the November 30, 2017 decision of the WCB to Review Office. The worker's representative once again suggested that the worker was still displaying clinical signs and symptoms consistent with post-concussion syndrome which prevented her from continuing the graduated return to work program initiated by the WCB.

Review Office, on January 17, 2018, determined that the worker was not entitled to further benefits beyond May 27, 2017. Review Office accepted that the worker clearly suffered from a blow to her head and it was noted that the worker reported headaches and other symptoms but was cleared for her regular duties on February 21, 2017. It was further noted that the worker's regression to what her family physician suggested as total disability as of March 14, 2017 with no improvement over the following three months, was not supported by objective medical findings or normal recovery patterns.

Review Office determined that the worker's choices and the perceptions they were based on are not a compensable consequence of her workplace accident and as such, Review Office did not accept that the worker was totally disabled beyond May 27, 2017 and that the graduated return to work program was appropriate. Review Office found that the worker's loss of earning capacity beyond May 27, 2017 was related to her choice not to participate in the graduated return to work plan. Review Office also found that there is no entitlement to further medical aid benefits as there was no evidence to support that it would be curative or provide relief from the worker's compensable injury.

The worker's representative filed an appeal with the Appeal Commission on January 31, 2018. 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 by the WCB.

Subsection 4(2) of the Act provides that a worker who was injured in an accident is entitled to wage loss benefits for the loss of or incapacity resulting from the accident, but no wage loss benefits are payable where injury does not result in a loss of or incapacity 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 any 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 assisted by a worker advocate, who made a presentation on her behalf. The worker’s position is that she is entitled to further benefits in relation to the February 14, 2017 accident.

During submissions, it became apparent that the worker’s position was that she had suffered a concussion on account of the February 14, 2017 incident. As a sequalae to that concussion, the worker has suffered from post-concussion syndrome causing ongoing impairment. In that regard, for all intents and purposes, the worker recovered from those symptoms as at July 30, 2018. The worker is also seeking coverage for prescription lenses that she relates to her injury.

Employer’s Position

The employer had a representative present at the hearing. The employer’s position was that it would be satisfied with whatever finding the panel makes based on the evidence before it.

Analysis

The issue before the panel is whether or not the worker is entitled to further benefits in relation to the February 14, 2017 accident. For the worker’s appeal to be successful, the panel must find, on a balance of probabilities, that the worker’s ongoing difficulties after February 14, 2017 and up to her return to work on July 30, 2018, were causally related to her workplace incident on February 14, 2017. For the reasons set out below, the panel is able to make that finding.

Concussion/Post-Concussion Syndrome

With respect to the issue of whether or not the worker suffered from a concussion and was continuing to suffer from post-concussion syndrome, the panel must first establish that the worker suffered a concussion while at work on February 14, 2017. The panel must therefore carefully assess the evidence as to what happened on the date of the workplace accident and in the period that followed, to determine whether the worker did suffer a concussion on that date.

The panel is assisted in this exercise by the criteria contained in the WCB’s Healthcare Position Statement for Concussions (“Healthcare Position Statement”). While the Healthcare Position Statement is not binding on the panel, it is based on current thinking on concussions and provides sound guidance with respect to making this assessment.

The relevant criteria in the Healthcare Position Statement requires a mechanism of injury of sufficient force to the brain, either from blunt trauma to the head or acceleration or deceleration mechanism, which results in one or more of the following immediate manifestations, namely:

1. Observed or self-reported loss of consciousness;

2. Observed or self-reported alteration in mental state at the time of injury, such as confusion and/or disorientation;

3. Loss of memory for events immediately before or after injury; and

4. 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.

Finally, the Healthcare 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 panel carefully questioned the worker at the hearing with respect to the mechanism of injury and her symptoms thereafter. In addition, the panel considered the medical evidence that was before it. There is no dispute with regards to the incident which occurred on February 14, 2017. The worker clearly suffered a blow to her head when she slipped and fell to the concrete. Further, in the period immediately following the workplace injury, the worker was clearly suffering from this blow to her head.

However, the WCB medical advisor’s examination notes dated April 25, 2017 state, at page 7:

[i]t should be kept in mind that the brain is well protected in the boney skull. There must also be immediate manifestations of disrupted brain functioning as evidenced by loss of consciousness, altered mental state, amnesia, and/or acute neurologic deficit. It is the brain specific symptoms or observations that separate a brain injury from any other musculoskeletal injury that can be present with pain, dizziness, seeing stars etc.

Further, on reviewing the worker’s report of her accident in terms of these criteria, it is noted that this worker does not meet the criteria as there was no evidence of impaired brain function immediately after the accident. She remembered everything about it, including someone walking by and not asking her if she was okay. She was able to get up on her own and performed purposeful activity. As such, there is no evidence that the worker sustained a workplace concussion.

Subsequent to the incident occurring the worker had complained of symptoms of ongoing head and neck pain, other symptoms such as phonophobia and photophobia, tinnitus, impaired memory and cognition, fatigue, decreased energy and impaired mood.

However, an April 3, 2017 medical report provided by the worker supports that the worker suffered a concussion and also met the clinical criteria for post-concussion syndrome. The worker complained of headaches, fatigue, sensitivity to light, sensitivity to noise, feeling slowed down, difficulty concentrating, difficulty remembering, drowsiness and irritability. In addition, her symptoms would get worse with thinking/cognitive activity.

As well, the panel heard from the worker’s husband and a co-worker who helped her on the day of the incident and thereafter. Both of these witnesses were clear in their evidence that the worker showed signs of confusion and/or disorientation immediately following the incident and for some time thereafter.

Taking the foregoing into account the Panel is able to make the determination that, on a balance of probabilities, that the worker did meet the criteria of the Healthcare Position Statement and suffered a concussion. The worker is entitled to ongoing benefits up to July 30, 2018 when she returned to work. Entitlement to benefits after that date, including the specific request for prescription lenses, will require further adjudication by the WCB.

The worker’s appeal is approved.

Panel Members

C. Monnin, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

C. Monnin - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 22nd day of November, 2018