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 wage loss and medical aid benefits. A hearing was held on December 5, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further wage loss and medical aid benefits.

Decision

That the worker is not entitled to further wage loss or medical aid benefits.

Background

On October 22, 2010, the worker reported to the WCB that she sustained multiple injuries in a motor vehicle accident on October 19, 2010. She saw her family physician on October 25, 2010 and was diagnosed with soft tissue injuries of her neck and low back and "anxiety post MVA." The worker's claim was accepted and payment of wage loss and medical aid benefits commenced.

The worker returned to work on a graduated basis on December 1, 2010 and to her full regular duties on December 15, 2010. A Discharge Report from the treating physiotherapist dated February 24, 2011 indicated that the worker last attended for treatment on January 7, 2011. By letter dated March 23, 2011, Compensation Services advised the worker that as she was no longer seeking medical treatment for her workplace injury, her claim with the WCB would become inactive.

The worker's file remained inactive until March 29, 2012 when the worker contacted the WCB to advise that she was suffering from chronic headaches and chronic back pain in the cervical area. She also reported that her right hand shook, she was in constant pain and could not sleep. She noted that she had ongoing depression stemming from her work and that she thought she suffered from PTSD as a result of the workplace accident.

The worker's treating physician provided a report on April 27, 2012 indicating that the worker was treated on September 7, 2011 for complaints of headaches for the past four weeks. It was noted that she was awaiting dental work and the physician's stated impression was of dental related headaches. On March 7, 2012 she was seen for complaints of insomnia and migraine headaches. The worker reported burning occipital pain and a sore neck on March 14, 2012 and the physician diagnosed her with myofascial pain.

In a discussion with a WCB case manager on July 11, 2012, the worker advised that she was missing time from work due to her symptoms of neck pain and headaches that she related to having three cervical vertebrae pressing on her spinal cord from the workplace accident. The case manager offered to make a psychological appointment for the worker if she wished, and on July 13, 2012, the worker advised that she would like a referral to a psychologist. In a report dated November 22, 2012, the worker's treating psychologist provided a diagnosis of "Adjustment Disorder with depressed mood (intermittent) and anxiety (in remission)."

By letter dated March 8, 2013, the WCB advised the worker's family physician that there appeared to be no relationship between the worker's reported ongoing symptoms and the workplace injury of October 19, 2010. The letter was copied to the worker.

On January 2, 2014, the worker contacted the WCB to advise that on December 27, 2013, she woke up with pain to the entire left side of her body, the side on which she was hit by the air bags after the workplace accident. She advised that she would be seeking medical treatment for the pain. The worker's family physician provided a report dated March 28, 2014 indicating a diagnosis of myofascial pain syndrome of upper back and neck, migraine headaches and major depression.

On June 20, 2014, the worker was seen by a neurologist who opined: "[The worker] presents with posttraumatic headaches since her concussion 3 years ago. These certainly have migrainous features…"

On September 2, 2014, the worker was seen by a neuro-ophthalmologist, who diagnosed her with post-concussion syndrome, migraine with aura, occipital neuralgia and convergence insufficiency.

On September 10, 2014, the worker was advised that an appointment had been made for her to attend a call-in examination with a WCB psychiatric consultant. On September 17, 2014, the worker advised that she would not be attending the call-in examination. On September 18, 2014, the WCB advised the worker that entitlement to benefits would depend on her agreement to attend a call-in assessment/examination. On October 22, 2015, the worker's representative advised the WCB that the worker would attend a call-in examination.

The worker was examined by the WCB psychiatric consultant and a WCB medical advisor on March 10, 2016. The WCB psychiatric consultant provided the opinion that "there are no psychiatric diagnoses which are attributable to the workplace injury." The WCB medical advisor opined that the current presentation in regard to ongoing symptoms was not accounted for in relation to the workplace injury, diagnosed as "soft tissue injuries +/- mild concussion suffered over five years ago." The medical advisor noted that there were currently no medical findings to correlate with the reported widespread symptoms and associated reported functional limitations.

On April 11, 2016, Compensation Services advised the worker that based on their further review of all the information available on her claim, they remained of the view that she had recovered from the workplace accident of October 19, 2010 and was not entitled to any further benefits.

On June 6, 2017, the worker's union representative asked the WCB to reconsider their decision that the worker was not entitled to further benefits. The union representative argued that the worker suffered from headaches as a consequence of the workplace accident and these should be accepted as part of her claim.

The WCB medical advisor was subsequently asked to review the worker's file and provide an opinion with respect to the proposed diagnosis of cervicogenic headaches and occipital neuralgia. In his response provided July 13, 2017, the WCB medical advisor opined, in part: "…the diagnoses of cervicogenic headache or occipital neuralgia imply an identification of a pain generator which is speculative in nature and not based on objective findings." The medical advisor further opined that "It was not until March 29 2012 (seventeen months after the accident) that [the worker] reported that she was experiencing symptoms including headache which she attributed to effects of the ci [compensable injury]. Development of headaches many months after initial recovery is not consistent with the typical natural history of injury-related cervicogenic headache or occipital neuralgia."

On August 10, 2017, Compensation Services advised the worker's union representative that the worker's claim had again been reviewed with the WCB medical advisor, and there was no change to the April 11, 2016 decision that the worker was not entitled to further benefits. Compensation Services also advised that responsibility for the diagnoses of cervicogenic headaches and occipital neuralgia would not be accepted as being related to the October 19, 2010 workplace injury.

On February 9, 2018, the worker's union representative requested that Review Office reconsider Compensation Services' decision. She submitted that the worker had not recovered from the workplace accident and continued to suffer from headaches. The representative commented that the worker's family physician had been treating the worker for over 16 years and confirmed that the worker did not experience migraines prior to the workplace accident and consistently reported headaches at the base of her neck throughout the life of her claim. The representative submitted that these headaches had been consistently documented by medical practitioners, the treating physiotherapist and the employer regarding the reason for the worker's absence from work. She asked that Review Office overturn the decision to disallow continued benefits, accept the ongoing complications of the worker's compensable injury and provide ongoing wage loss and medical treatment benefits.

On April 25, 2018, Review Office determined that the worker was not entitled to further benefits. Review Office accepted and placed weight on the WCB medical advisor's July 13, 2017 opinion that no structural abnormalities were identified at the worker's cervical spine or occipital regions that would serve as pain generators. Review Office noted that a cervicogenic headache is a secondary headache caused by another physical issue or illness. Occipital neuralgia is a condition characterized by chronic pain in the upper neck, back of the head and behind the eyes, and can occur when there is pressure or irritation to the occipital nerves possibly due to an injury. The report of the CT scan of the worker's head and cervical spine conducted on the date of the workplace accident of October 19, 2010 was normal. The worker was diagnosed with soft tissue injuries of the neck and back, and no diagnosis was provided which would cause long-term difficulties. Review Office therefore found, on a balance of probabilities, that the worker did not have a loss of earning capacity beyond December 14, 2010 or a requirement for medical aid related to the October 19, 2010 workplace injury and there was no entitlement to further wage loss and medical aid benefits.

On May 8, 2018, the worker's 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.

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 wage loss benefits are payable 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 responded to questions from her representative and the panel.

The worker's position was that she has not fully recovered from her serious compensable injury and is entitled to further wage loss and medical aid benefits.

The worker's union representative reviewed and commented on the history of the worker's claim. The representative noted that the worker was involved in a serious motor vehicle accident while in the course of her employment. Her car was hit by a bus; it flipped over and she was suspended upside down in the vehicle. She received physiotherapy treatment to address her sprain/strain type injury. She returned to work six weeks after the motor vehicle accident and her file became inactive five months after the compensable injury. It was submitted that when the worker reached out for help from the WCB she appeared to be treated with suspicion. It seemed that everyone assumed all was well and moved on, and the worker was left to manage on her own.

The union representative stated that they did not believe that the worker has fully recovered from her compensable injury, and submitted that this was demonstrated by the continued need for treatment from the worker's treating neuro-ophthalmologist.

The representative noted that previous information had been provided to the WCB by the worker and her union to highlight the consistency of her symptoms which they believed caused her need for additional treatment and wage loss benefits for time lost from work. The representative asked that the panel review the worker's claim for consistencies, and the worker be provided with the time loss and medical treatment that she had needed historically and may need in the future.

Employer's Position

The employer was represented by an advocate and by its WCB Coordinator.

The employer's position was that the worker is not entitled to further wage loss or medical benefits, and her appeal should be dismissed.

The employer's advocate noted that while the worker's October 19, 2010 accident would have been very frightening, it did not necessarily translate into a serious injury. The advocate pointed to the initial medical reports, noting that they did not confirm a serious injury or a concussion or loss of consciousness.

The advocate submitted that although there was no question that the worker was involved in a traumatic car accident, all indications were that she had recovered from the effects of that accident by early 2011. The worker resumed working within six weeks. She did not seek medical treatment for over a year. She did not notify the WCB or her employer of any ongoing problems.

It was submitted that medical opinion offered by the worker's psychologist and her attending physicians years after the incident were based on her report of having sustained a concussion and of symptoms inconsistent with early reports. The advocate asked that the panel accept the opinion of the WCB psychological consultant, as well as those of the WCB medical advisor and the WCB psychiatric advisor who examined the worker.

Analysis

The issue before the panel is whether or not the worker is entitled to further wage loss and medical aid benefits. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained a further loss of earning capacity and/or required further medical aid as a result of her October 19, 2010 workplace accident. The panel is unable to make that finding, for the reasons that follow.

The worker has an accepted claim for multiple soft tissue (sprain/strain) injuries sustained in the October 19, 2010 motor vehicle accident.

The panel is satisfied that information on file shows that the worker's soft tissue injuries had resolved by February 2011. The panel notes in this regard that:

• The worker returned to work on a graduated basis on December 1, 2010 and to her full regular duties on December 15, 2010; 

• A December 15, 2010 report from the worker's family physician noted that the worker "returned to work on full duties, no problem;" 

• The worker did not complete her remaining physiotherapy treatments; 

• A Discharge Report from the treating physiotherapist dated February 24, 2011 indicated that the worker last attended for treatment on January 7, 2011, and that she was improving, had occasional headaches and no low back pain.

The panel is unable to find that the worker's ongoing reported symptoms are related to the workplace accident. The panel finds that there is a lack of clinical evidence to support the ongoing nature of her symptoms due to significant gaps in seeking medical attention or treatment, including an eight month gap from January to September 2011. The panel acknowledges that the worker stated at the hearing that she is a very private person and that she suffered in silence. She also indicated that she kept silent because everyone had deemed her a hero for having survived such a serious accident. The fact remains, however, that there is a lack of clinical evidence over several periods of time. The panel further notes that the worker is a healthcare professional, and would have expected, given her training, that she would have attended for medical attention in a timely manner if her symptoms persisted or were serious.

The panel notes that following her return to work, the worker performed duties of a complex nature for a significant period of time without concerns being raised as to her ability to properly or safely perform her tasks. The worker acknowledged at the hearing that she always wanted to be sure that her clients were not in an unsafe situation, and if she felt that they were, she would be the one to walk away.

The panel recognizes that the treating neuro-ophthalmologist has provided diagnoses of post-concussion syndrome, migraine with aura, occipital neuralgia and convergence insufficiency. The panel is unable to place much weight on the neuro-ophthalmologist's reports or to relate those diagnoses to the workplace accident. The panel notes that the neuro-ophthalmologist did not see the worker until almost four years after the accident and that his diagnoses, including his diagnosis of post-concussion syndrome is based on what the worker told him at that time regarding the history of the accident and her symptoms. The panel finds that the history as reported by the neuro-ophthalmologist is not consistent with the contemporary evidence of the workplace accident. For similar reasons, the panel is unable to place weight on or relate the diagnoses provided by the worker's treating neurologist to the workplace accident.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not sustain a further loss of earning capacity or require further medical aid as a result of her October 19, 2010 workplace accident.

The panel therefore finds that the worker is not entitled to further wage loss or medical aid benefits.

  The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
C. Devlin, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 1st day of February, 2019