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 wage loss benefits after December 1, 2017. A hearing was held on December 6, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after December 1, 2017.

Decision

The worker is not entitled to wage loss benefits after December 1, 2017.

Background

The employer reported that the worker injured his head in a workplace accident on November 28, 2016. The report from the emergency department on November 28, 2016 noted the following clinical findings:

Struck by 60 lbs 2x2 square steel tubing that was under approx. 5 tons of pressure as per patient to left temporal head while using jack today at work. Denies LOC (loss of consciousness) with same. fell to right knee when struck "felt dazed" able to get up per self immediately after. Denis (sic) dizziness, admits to HA (headache) to left side of head. no analgesia taken for same. Refusing analgesia in ER. denies vision changes, nausea or emesis. palpable hematoma left temporal area. scant bleed from site. denies neck pain.

A CT scan conducted while the worker was at the emergency department noted "Equivocal findings of undisplaced left middle cranial fossa skull fracture which requires clinical correlation.

The worker's claim for an undisplaced skull fracture, whiplash injury and concussion was accepted by the WCB on December 12, 2016. The worker attempted to return to work on December 13, 2016 but did not due to ongoing symptoms of headache and dizziness. The worker was referred by his family physician to see a neurologist.

On January 9, 2017, the worker was examined by the neurologist who reported: "[The worker] suffered a concussion and whiplash injury from the head trauma sustained on November 28, 2016 while at work. His symptoms are gradually improving with time which is encouraging." The worker was also referred to a neurosurgeon.

The worker attended for a call-in examination with the WCB medical advisor on February 1, 2017. The WCB medical advisor confirmed the worker's diagnosis of a concussion and noted that recovery from a concussion is typically several days to weeks. The WCB medical advisor advised that the worker's prognosis was favourable for a full recovery. It was further noted that if the worker's symptoms continue to improve, consideration could be given to starting a graduated return to work, possibly half days with lighter duties.

On May 15, 2017, the worker was seen by the neurosurgeon. The neurosurgeon reported that the worker had constant tinnitus but had no specific management recommendations for treatment.

The worker was seen for a follow-up call-in examination with the WCB medical advisor on May 17, 2017 who opined, in part:

The diagnosis in [the worker's] case remains concussion with a degree of associated whiplash/cervical strain. Investigations including x-rays of the cervical spine, CT of the brain, and assessments by a neurologist and neurosurgeon have not identified any other concerning pathology or conditions.

… 

At present, headaches and ringing appear to be the most troubling symptoms, though interestingly headaches were not noted to be a major problem initially, and ringing was not noted on file until the physiotherapy report of February 16, 2017, two months post injury. There was no mention of ringing at the previous WCB assessment on Feb 1 2017. Regardless, a degree of headache and tinnitus (ringing) would be accounted for by the head injury. These would not however be consider disabling.

Now at six months post-concussion, a significant degree of improvement would typically be anticipated. No specific concerning features were noted at examination today. Rather, it is noted that [the worker] is able to perform high-level functions such as operating his motor vehicle and carrying out daily activities without assistance.

While acknowledging the presence of a degree of ongoing symptoms (headache and ringing), at this point it would be safe and appropriate for [the worker] to consider a graduated return to work, possibly commencing at half days and progressing subsequently as tolerated.

Suggested restrictions would include avoiding work at heights and avoiding heavy lifting or push/pull greater than 25 pounds. Consideration of commencing the graduated return to work does not need to await the results of the ENT consultation which is scheduled for August.

The WCB advised the worker on May 25, 2017 that his restrictions would be a gradual return to work, avoid working at heights and avoid heavy lifting or push/pull greater than 25 pounds. The employer advised the WCB that they could not accommodate the worker's restrictions.

On July 30, 2017, the worker underwent an MRI brain scan. The MRI results were: "There is no evidence of an intracranial mass lesion, hemorrhage, infarction or demyelination. No intracranial abnormality is identified." Note was made of a possible sinus issue.

The worker was recommended for and attended a four week reconditioning program beginning on September 27, 2017, scheduled to end on October 25, 2017. The reconditioning program was arranged by the WCB to help the worker increase his work tolerance, strength and endurance. Due to slower than expected results, the program was extended for a further two weeks to November 10, 2017. The discharge report, dated November 20, 2017, noted that "[The worker] self-limited his functional abilities stating that heavier weights 'put him out for days'. We did not observe a biomechanical reason for [the worker] to limit his activities in the clinic."

The worker's claim was reviewed by the WCB medical advisor and on November 21, 2017, the WCB medical advisor opined, in part:

In terms of his work abilities, risk, capacity, and tolerance will be considered:

• RISK - refers to the likelihood of further injury if work activities are performed. At over one year post injury, there is no risk of further injury to the brain, even if he were going back to activity where there was an increased risk of blows to the head (such as professional football or hockey). Not returning to work actually carries a greater risk of poor health outcomes. 

• CAPACITY - refers to measurable impairments that equate to an inability to perform specific tasks. His neurological exam is normal. He has pain limited ROM of the neck. That would not be expected to affect his ability to perform his regular work duties. He has high tone hearing loss which would not affect his ability to perform his regular work duties. 

• TOLERANCE - It has been over a year since an injury expected to recover in a few weeks. He has been provided with ample treatment, including a reconditioning program. It is not concordant with the natural history of the accepted dx's (diagnoses) that there would be impaired tolerance for activity one year post-injury.

Based on this review, the worker may still have some lingering symptoms from the workplace accident, but his risk, capacity, and tolerance profile supports that workplace restrictions are no longer required. He has been off a considerable period of time but with the reconditioning program, there should be no requirement for a gRTW (graduated return to work).

The symptoms are being treated with the chiropractic treatment.

On November 27, 2017, the WCB advised the worker that it has been determined there are no further restrictions in relation to his workplace injury therefore he was not entitled to wage loss benefits after December 1, 2017.

The worker requested reconsideration of the WCB's decision to Review Office on December 13, 2017. The worker argued that he was not capable of performing his duties, which was supported by the medical information on his file.

Review Office requested the WCB medical advisor review the worker's file to advise whether the chiropractic treatment approved by the WCB in November 2017 was expected to result in sustained improvement in the worker's function or was it to assist the worker in transitioning back into his job duties after a long term absence. On February 6, 2018, the WCB medical advisor provided that the treatment was expected to result in sustained improvement in symptoms along with functional gains with a possibility of a return to work. The WCB medical advisor's opinion was provided to the worker, who submitted a response on February 20, 2018.

On February 27, 2018, Review Office determined that the worker was not entitled to further benefits after December 1, 2017. Review Office placed significant weight on the discharge report from the reconditioning program that noted the worker's self-limiting and lack of biomechanical reason for this during the reconditioning. Review Office noted that Compensation Services had indicated that the worker was "functionally recovered" in their letter of November 27, 2017. However, it was noted that additional chiropractic treatment was approved but it was concluded that the worker had sufficiently recovered from the workplace accident to resume working his regular job duties.

The worker's representative filed an appeal with the Appeal Commission on May 11, 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 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 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.

The worker has an accepted claim for a workplace injury. He disagrees with the Review Office decision that he is not entitled to benefits after December 1, 2017.

Worker's Position

The worker was represented by a worker advisor who provided an oral and written submission. The worker answered questions from his representative and the panel.

The worker's representative submitted that the November 28, 2016 workplace accident was significant, and that the worker continues to suffer from its consequences.

The worker described the accident. He said they were changing the pins on a 20 ton overhead crane bucket. They were using a 5 foot steel pipe which weighed about 60 pounds and a hydraulic jack. They removed one pin and while removing another pin, the worker was injured by the pipe. He said that he pushed down on the jack and then was laying way over on the floor.

The worker said that he got off the floor and right away, the millwright ran up to him and he asked if he was okay. He said his hard hat flew off. His coworkers told him to obtain medical assistance. The worker reported that:

And then I went and I reached in the back of my head, and I had a big lump right on the back of my skull right here, and it was just bleeding like crazy. And then they told me that I had to go to the hospital.

The worker said that he had a skull fracture, and that doctors put a staple in the back of his head.

The worker's representative noted that the WCB accepted the claim as a diagnosis of concussion and other whiplash/cervical strain injury. She said that the chiropractor's first report dated January 13, 2017 confirms the diagnoses are that of a cervical sprain/strain, concussion, and whiplash injuries.

She stated that;

[Family physician]'s report of October 12, 2017 continued to support these diagnoses are related to a concussion and a head injury. The symptoms of ringing in the head has been continuous with headaches, dizzy spells and a decreased eye focus.

She noted that a rehab service provider indicated that the worker would not meet the demands of his job. She also noted that a WCB medical advisor indicated on November 21, 2017 that the diagnoses of concussion with whiplash cervical strain are accepted as being related to the workplace accident.

The worker's representative disagreed with the medical advisor's position that there is no safety risk to return to normal activity and that there should be no requirement for a graduated return to work program after the completion of a rehabilitation program.

She also disagreed with the medical advisor's opinion that an expected recovery from the injury is in a few weeks, and that the worker's claim is not concordant with the natural history of the accepted diagnosis.

The worker's representative noted that the rehab service provider's correspondence dated November 17, 2017 does not support recovery to pre-accident status. The worker's representative provided information from a website which indicated that post-concussive syndrome may persist for a year or more.

The worker's representative noted that the worker's employer agrees that with symptoms of constant ringing in the ears, decreased concentration and focus, that the worker would be unable to perform his work safely. Therefore the employer is not prepared to allow him back until a full recovery to full-time regular work is approved.

She submitted that based upon the employer's letter, a loss of earning capacity continues to exist as the employer is not prepared to provide any alternate or modified work as of December 7, 2017. She also submitted that:

It is our position that a concussion and post-concussive symptoms are always accepted on subjective findings, and as long as the subjective symptoms continue and disable the worker, benefits are rightly payable.

In reply to a question, the worker advised that he started seeing his current chiropractor in the beginning of 2018. He stated that he started by seeing the chiropractor twice a week, reduced this to once per week but returned to twice a week because he felt better with more frequent treatments.

The worker said that his condition has improved but that he feels he still needs treatment. He said "there is something wrong with me because my neck is killing me" and that "It feels like somebody basically had a knife and just driving it right into the side of my neck, and it just burns like crazy."

Regarding treatment from his chiropractor, the worker stated that the chiropractor referred to it as "reverse whiplash" and said:

that jarred your neck so bad where it actually, your spine isn't straight anymore. So he said that all the nerves that run around my spine, he said that he's trying to work on those nerves to make them pull my spine back straight, and then they correct everything without having to manipulate it.

Regarding the treatment, the worker stated:

And then when I started seeing the guy, he actually started making some changes in my neck from what it was to what it is now. It's not 100 percent, but on a scale of 1 to 10, when I went and seen him, it was probably a 10, at least, and then now I would say I'm probably down around an 8.

In reply to a question about whether he has asked the treating chiropractor when he will recover, the worker stated:

I said like, is this ever going to go away? And he said, yes, it will go away, he goes, but in your case with the severity of the injury that you had, he goes, this is not going to be a quick recovery in any way, shape or form. He goes, the impact that you got hit at was so hard where, he goes, it actually made your spine all wonky...

In reply to a question about what is keeping the worker from going to work, he replied:

It would be my concentration, my focus, my memory. I have a very hard time remembering things now, like a very hard time. I just forget everything.

The worker described the treatment he is currently receiving from his chiropractor. He said:

• he lies on a bed with feet hanging over the end of the bed. 

• then the chiropractor grabs the his feet and pushes on his feet, and then touches certain parts of his neck and my skull. 

• then the chiropractor goes back to his feet and starts moving them, and pushing on the soles of his feet. 

• the chiropractor then moves his feet and lifts up his legs and pushes on the feet. 

• then the chiropractor touches a certain spot on his head and then he goes back to his feet. 

• then the chiropractor moves his feet and then pushes on them, and then he comes back up and he'll touch a certain spot. 

• after the chiropractor touches it, the second time, he uses a clicker, on the spot on his head, and then it goes click on the head.

The worker said that the chiropractor told him that "every time he clicks it, he said that that's hitting nerves that have basically lost feeling from the accident." He said he has received this treatment over the whole year. He said that he was told that he will probably need the treatment for the rest of his life.

At the close of the hearing, the worker's representative submitted that:

It remains our position that the workplace accident and accepted diagnoses of concussion and post-concussive syndrome, along with a left sided cervical injury, is responsible for [worker's] ongoing difficulties. In this case, there are no significant pre-existing conditions which are responsible for his ongoing difficulties on which to deny benefits.

The workplace accident is responsible for the onset of the symptoms which persist and increase with activity, which are consistent with post-concussive syndrome. The employer confirms that there are no modified or alternate duties, and that they will not accept [worker] back to employment until he is cleared to do so.

It remains our position that the evidence in [worker's] case supports a loss of earning capacity continues to exist prior to and most definitely beyond December 1, 2017. As presented today, there is no attending physician or treatment provider that supports [worker] is clear to return to his full regular duties as of December 1, 2017. The evidence supports that he is not able to meet the demands of his occupation; therefore, a loss of earning capacity continues to exist. In this particular case the evidence supports greater than, on a balance of probabilities, that this particular worker has not sufficiently recovered from his workplace accident to resume his full regular duties.

Employer's Position

The worker's employer did not attend the hearing but provided a submission dated March 20, 2018.

In its submission, the employer advised that the worker was still suffering major symptoms of post-concussion syndrome as noted by the worker's doctor. It submitted that these symptoms prevent the worker from working in a safe manner.

Analysis

The worker has an accepted claim for a November 28, 2016 accident. He is seeking WCB benefits after December 1, 2017. For the worker's appeal to be approved, the panel must find that the worker continued to sustain a loss of earning capacity as a result of the November 2016 accident. The panel was not able to make this finding. The panel finds, on a balance of probabilities, that the worker is not entitled to wage loss benefits after December 1, 2017.

The evidence establishes that the worker was injured at work on November 28, 2016. The initial diagnoses was that the worker sustained a whiplash injury to his neck and a concussion.

At the hearing the worker focused on his whiplash injury. He advised that he is still receiving chiropractic treatment for this neck injury. He described his condition and related symptoms.

The panel notes that the whiplash injury was referenced in a report from a neurologist on January 9, 2017. The neurologist found:

• the patient's cognitive function was unremarkable. 

• otological examination was unremarkable. 

• he had a mild head and intention tremor bilaterally. 

• strength was 5/5 and equal bilaterally. 

• plantar responses were down going bilaterally and clonus was not present. 

• sensory and coordination examination were normal bilaterally. 

• gait was normal with a negative Romberg's test.

The neurologist opined that that the worker suffered a concussion and whiplash injury from the head trauma, and that symptoms were improving. The panel considers that this report set a baseline to assess the worker's progress and recovery.

On May 17, 2017, a WCB medical advisor examined the worker and recommended a graduated return to work; however, the employer was not able to provide a position. The medical advisor noted ongoing symptoms of headache and ringing. He also noted that the worker was performing high-level functions such as operating a motor vehicle and performing daily activities without assistance.

A July 30, 2017 MRI noted no evidence of an intracranial mass lesion, hemorrhage, infarction or demyelination nor intracranial abnormality.

On August 30, 2017 an athletic therapist examined the worker and noted that the worker's cervical range of motion was normal, suggesting further recovery.

The worker was enrolled in a reconditioning program on September 27, 2017. On November 17, 2017, it was reported that the worker was re-tested and had improved but that during his last test he self-limited his effort. The panel finds that the reports from this program support a finding that the worker's condition was improving.

The panel accepts the opinion of the WCB medical advisor dated November 21, 2017. The medical advisor reviewed all the medical information on the file. She opined that while the worker may have some lingering symptoms related to the workplace injury, workplace restrictions are no longer required for his return to work.

The panel finds, on a balance of probabilities, the worker is not entitled to further wage loss benefits after December 1, 2017.

The panel finds that the worker's condition, as described at the hearing, is much worse than that found by the neurologist in January 2017 and worse than that reported during his various treatments and assessments prior to the termination of his benefits in December 2017.

The panel is unable to relate this worsening of the worker's condition and his inability to return to work to the November 2016 workplace injury as it is inconsistent with the normal progression of a whiplash/concussion injury, as noted by the WCB medical advisor. The panel is also not able to relate the worker's current condition to his workplace injury. The panel finds, on a balance of probabilities, that the worker is not entitled to wage loss benefits after December 1, 2017.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
S. Briscoe, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 9th day of January, 2019