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 after May 29, 2017. A hearing was held on February 14, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits after May 29, 2017.

Decision

That the worker is not entitled to further benefits after May 29, 2017.

Background

The worker reported to the WCB that she injured her neck, upper to lower back and hand in a July 13, 2016 incident which she described as follows:

I was at my client and just left to go to my next client. I was at [street name] and [second street name]. I had stopped at the 4-way intersection and then I proceeded to go through the intersection as it was safe to do so and just as I did this, a car came and T-boned me.

I was dazed. I sat in my vehicle for a while. An ambulance was called. I was checked over by the attendants. The firefighter spoke to my husband. My husband came on the scene.

The worker attended a physician on July 14, 2016, with complaints of pain in her right arm and on the right side of her chest, a burning feeling down her spine and pain on the sides of her neck. The physician diagnosed the worker with an acute musculo-ligamentous strain in her neck and spine and queried a contusion to her right chest. He referred the worker for an x-ray of her right ribs and recommended physiotherapy. The x-ray, taken July 15, 2016, indicated that no rib fractures were identified.

At an initial assessment by a physiotherapist on July 18, 2016, the worker reported burning pain down her spine, a stiff/achy neck and shoulder and upper back and neck spasms. The physiotherapist diagnosed the worker with WAD (whiplash associated disorder) or cervical and thoracic spine sprain/strain.

At a follow-up appointment with her family physician on July 25, 2016, the worker reported a frontal/occipital headache as one of her subjective complaints and the physician added a "probable concussion" to the diagnosis.

On July 28, 2016, the worker's physiotherapist noted continuing complaints of radiating pain down the worker's spine, a constantly sore and stiff cervical spine, and a burning sensation in the worker's right shoulder with right shoulder pain, and recommended that the worker not return to work at that time due to pain.

On August 9, 2016, the worker's family physician noted that the worker had ongoing pain in her neck, right shoulder and arm that had not improved. She noted that the worker had been feeling nauseated since the accident, with no vomiting. The physician referred the worker for a cervical spine x-ray and a CT scan of the brain. The cervical spine x-ray, taken August 9, 2016, indicated that no fractures were demonstrated.

At a follow-up appointment with the physiotherapist on August 12, 2016, the worker reported that her biggest issue was nausea and headaches, that her neck and mid-back still felt stiff, but her low back and ribs were improving. The physiotherapist advised the worker to discuss further pain medication with her physician.

The CT scan of the worker's brain performed August 30, 2016 noted no evidence of intracranial hemorrhage, mass effect, or infarction, and that no other intracranial abnormality was identified.

On September 7, 2016, the worker was seen by her treating psychiatrist, who opined:

She is presenting with a two month history of symptoms of Post Traumatic Stress Disorder and Post Concussion Syndrome following a motor vehicle accident on July 13, 2016. At the time, she was T-boned and sustained damage to the left side of her body, as well as a significant concussion…

When the diagnosis of Post Traumatic Stress Disorder and Post Concussion Syndrome was discussed, initially [the worker] showed a high degree of denial and stated that she wished this was just plain depression. Prior to the motor vehicle accident, her depression was not a plain depression. It was complicated by a significant degree of borderline and dependent personality traits. Now it is also compounded by the presence of PTSD and Post Concussion Syndrome.

On December 12, 2016, the worker attended a call-in examination with a WCB medical advisor. Based on her review of the information on file and her examination of the worker, the medical advisor opined that the worker's diagnosis after the workplace accident was a neck strain/sprain or non-specific neck pain. It was noted that the worker's healthcare providers had diagnosed the worker with a concussion and subsequent post concussion syndrome. The WCB medical advisor stated that while the worker did have a mechanism of injury that had been associated with concussions, no reported disrupted brain function was noted on the worker's accident report, the ambulance report or the initial medical assessments.

In response to questions from the WCB, the WCB medical advisor further opined, in part:

3. What would appear to be the current diagnosis? 

4. What medical findings would support his diagnosis?

Responses 

There may still be a component of non-specific pain. This is supported by her report of pain and tenderness, with mild reduction in ROM [range of motion].

She reports many other symptoms that are affecting her day to day life such as headache, dizziness, vision problems, hearing issues, memory and cognitive problems, sleep problems, and pain. Her own practitioners have labeled these as post-concussion symptoms. A patho-anatomic diagnosis in relation to the compensable injury cannot be provided for these symptoms as they are not expected to occur with a resolving strain type injury.

5. Would this diagnosis(es) appear to be medically accounted for in relation to the compensable injury?

Response 

There has been continuity of medical attention with ongoing documentation of the upper back symptoms and findings. Most people do recover within three months, but we know there are some that can take longer. She has documented degenerative conditions on the x-ray and that can delay recovery from a soft tissue injury. So this non-specific upper back to mid-back pain can be medically accounted for in relation to the compensable injury.

It is difficult to account for her other symptoms in relation to the compensable injury since she did not meet the criteria to confirm concussion and her presentation is not consistent with the natural history of either concussion or post-concussion syndrome. (Please note, even with concussion or post-concussion symptoms, the natural history is for improvement with time. This worker has had no improvement with the current treatment (rest) for over five months. Most with these symptoms have increased symptoms with activity, but she reports no pattern to her increased symptoms.)

In response to a question regarding the worker's ability to return to work, the WCB medical advisor applied a risk, capacity and tolerance assessment, noting that there was no risk in the worker returning to work but there was risk in her not returning to her normal activity; and that while the worker did have some mild reduction in active range of motion in her neck and thoracolumbar spine, it should not affect her function. The WCB medical advisor noted, however, that the worker was unlikely to tolerate a return to work because of her multitude of symptoms, and her tolerance should be improved through an active-based rehabilitation program.

On January 20, 2017, the worker's claim was reviewed by a WCB psychiatric advisor, who opined, in part:

The treating psychiatrist has stated in her report dated September 7, 2016, that [the worker] has pre-existing diagnoses of Depression and Borderline Personality Disorder with dependent traits. She has also made diagnoses of PTSD and Post Concussion Syndrome. 

… 

For a diagnosis of PTSD, specific criteria must be met. Within Criterion A, Exposure to a traumatic event, there must be exposure to actual or threatened death, serious injury or sexual violence. The DSM-5 then goes on to describe some of these events, listing such things as being held hostage, military events, and severe motor vehicle accidents.

While the CI [compensable injury] was unexpected, it could not be described as a serious MVA [motor vehicle accident]. She was able to decline transport to the hospital, waited at her vehicle for her spouse to pick her up, and there were no focal injuries noted by the paramedics.

Her MVA is not medically found to be within the domain of PTSD criteria. There is no medical information on file that supports the presence of a psychiatric diagnosis that is medically related to the CI.

On January 26, 2017, Compensation Services advised the worker that the accepted diagnoses in relation to the compensable injury were cervical/thoracic sprain/strain. Compensation Services further advised that the suggested diagnoses of PTSD and Post-Concussion Syndrome would not be accepted in relation to the workplace injury of July 13, 2016.

On March 14, 2017, the WCB medical advisor conducted a further review of the worker's claim and opined that since the worker had been off work for a lengthy period of time, a graduated return to work program would provide the best chance for a successful return to normal activity. The medical advisor recommended that a reasonable schedule for a graduated return to work would be:

• Week one - ½ time, sedentary duties 

• Week two - ¾ time, sedentary duties 

• Week three - full time, sedentary duties 

• Week four - ½ time, sedentary duties, - ½ time, regular duties 

• Week five - ¼ time, sedentary duties, - ¾ time, regular duties 

• Week six - full time regular hours

On March 22, 2017, the worker was seen by a neurologist who provided the following impression based on his examination of the worker:

The neurologic examination is completely normal with no evidence of any residual problem that may have been present earlier. The symptoms are indeed suggestive of a post-concussion syndrome and I would anticipate definite improvement. It is not my position to state whether she could or could not work at this point as I cannot measure the symptoms in terms of severity. I would be very supportive in a gradual return to work program if this is available. I note that her CT scan of the brain was normal and that her cervical spine x-rays shows some degenerative changes as well as mild left posterolateral disc protrusion at C4-C5. I do not think that these findings are relevant to her symptoms at this time.

On May 15, 2017, Compensation Services advised the worker that based on the description of the workplace accident, the accepted diagnosis of cervical/neck strain/sprain and thoracic strain/sprain, which typically resolve within three months, and the length of time since her workplace accident, they had decided she had recovered from the effects of her July 13, 2016 accident. Compensation Services advised that they would support a graduated return to full duties over a six-week period, based on the recommended schedule, effective May 16, 2017.

Compensation Services noted that the worker's entitlement to wage loss and other benefits would therefore end May 29, 2017, as she would have been expected to return to full hours by May 30, 2017.

On January 5, 2018, the worker's representative submitted further medical information and witness statements, and requested that Compensation Services review their decision. The worker's representative argued that the new evidence supported that the worker suffered a concussion from the workplace accident from which she had not recovered as of May 29, 2017.

The new medical evidence submitted by the worker's representative and claim file were reviewed by a WCB sports medicine advisor. On January 31, 2018, the sports medicine advisor opined that there was no new diagnosis on the worker's file and the worker's current presentation appeared to be nonspecific in nature and "highly symptom driven with little in terms of objective findings."

On February 1, 2018, Compensation Services advised that there was no change to their May 15, 2017 decision that the worker had recovered from the effects of her workplace injury and that her current presentation remained unaccounted for in relation to the July 13, 2016 compensable injury.

On February 27, 2018, the worker's representative requested that Review Office reconsider Compensation Services' decisions dated May 15, 2017 and February 1, 2018. The worker's representative advised that the worker felt she had not recovered from the effects of her workplace accident, which they believed to be a "whiplash cervical/thoracic injury causing muscular/ligamentous injuries along with an acceleration/deceleration type action causing a concussion."

On May 9, 2018, Review Office determined that the worker was not entitled to benefits after May 29, 2017. Review Office found that the worker's current self-reporting of concussion-like symptoms contradicted her reporting immediately following the workplace accident. The evidence provided did not support the diagnosis of a concussion and the worker's lack of improvement did not conform to post-concussion syndrome. Review Office determined, on a balance of probabilities, that there was no psychological or brain injury in relation to the compensable accident. Review Office found the claim was acceptable for musculoskeletal sprain/strain injuries, and the worker was functionally recovered from those injuries by May 29, 2017.

On June 7, 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 worker advisor, who provided two written submissions in advance of the hearing and made an oral presentation to the panel. The worker attended the hearing with her spouse, and responded to questions from her representative and the panel.

The worker's position was that the injuries she sustained as a result of her workplace accident had not resolved by May 29, 2017, and there was further WCB responsibility beyond that date.

The worker's representative submitted that the evidence supports the diagnosis of a concussion with post-concussive symptoms, and a secondary diagnosis of whiplash, as being related to the workplace injury. The medical evidence also supports that the worker had not recovered from her injuries when her benefits were discontinued and the diagnosed post-concussion syndrome and cervical whiplash continued beyond that date and were ongoing.

It was submitted that all information most proximal to the accident and beyond should be taken into account. The initial reporting to the adjudicator on July 20, 2016 confirmed that the worker reported that she was "out of it" after the accident and her husband said she seemed very confused. The employer's own Intake form also confirmed that the worker reported she did not really remember what happened.

It was submitted that evidence presented to the WCB and the opinion of the WCB's sports medicine advisor supported a relationship between the worker's diagnosis and symptoms and the accident. The representative also pointed to witness statements from the worker's spouse and her insurance agent and noted that the WCB's sports medicine advisor stated that this information appeared to affirm an impairment of cognition in close temporal proximity which in consideration of the mechanism of injury could indicate a concussion occurred. The representative submitted that based on the WCB's own Healthcare Position Statement on Concussion, the criteria for a concussion had been met. The representative noted that although Review Office accepted the compensable injury as a cervical/neck strain/sprain, the sports medicine advisor's opinion also accepted that a concussion could have occurred. The representative submitted that the evidence supported that a concussion did occur based on disorientation, memory gaps and cognitive impairment on the day of the accident.

With respect to whiplash, it was submitted that this diagnosis was identified early in the claim as being related to the workplace accident. The representative noted that the initial physiotherapist's report dated July 18, 2016 provided a diagnosis of WAD. The representative referred to medical literature which indicated that the impact which results in whiplash can come from any direction, and the head may move backwards and sideways, not just forward, and submitted that this same mechanism of injury caused the worker's ongoing strain/sprain injury or whiplash.

The worker's representative submitted that the WCB psychiatric consultant erred in her assessment of the accident. It was submitted that the accident was not as trivial as suggested, and there does not need to be head trauma to cause a concussion. An acceleration and deceleration mechanism with the head and neck is also an accepted cause for a concussion, and such forces were involved in the worker's case, causing neck and upper back injuries diagnosed as both concussion and whiplash injuries.

The worker's representative noted that Review Office discontinued benefits based purely on the 10½ month duration of the worker's disability and their opinion that she had recovered from the sprain/strain injury by that time. The representative referred to medical literature provided in advance of the hearing which confirmed that lingering pain and symptoms from both whiplash and concussion can persist for a year or more, and submitted that the worker's situation fell within this category.

The representative submitted that medical reports from a neurologist and a pain management physician which had also been provided in advance of the hearing supported that ongoing symptoms and diagnoses of whiplash and post-concussive syndrome which were directly related to the workplace accident.

Employer's Position

The employer was represented by an advocate and by its WCB Coordinator. The employer's position was that they agreed with the Review Office's conclusion that the worker is not entitled to benefits after May 29, 2017.

The employer's advocate reviewed the medical information on file in detail, and asked that the panel place weight on the information in close proximity to the workplace accident. The employer's advocate submitted that the employer does not believe there is evidence of an injury to the worker's head or brain which would have resulted in a concussion or any of the myriad of symptoms reported.

The advocate submitted that on a balance of probabilities and based on the symptoms which were reported at the time of the injury, the worker did not sustain a concussion. There were none of the hallmarks of a concussion or a serious neck injury. There were no complaints of headaches to treatment providers, and no complaints of photophobia, dizziness, nausea or any of those other symptoms at the time of injury. Subsequent complaints which were not evident at the time of injury could not be accounted for in relation to the workplace accident.

The advocate submitted that the employer agreed the worker sustained a strain in the cervical spine and neck area, noting that whiplash is a neck strain. The employer also agreed that there is a normal recovery period for this. In the worker's case, however, her symptoms evolved, becoming worse, even with treatment.

The employer's advocate further submitted that the medical evidence does not support disability. In the employer's view, there was no valid medical reason the worker could not return to work after May 29, 2017 as suggested by the WCB medical advisor and the treating neurologist, and accepted by the worker's family physician.

The employer's advocate stated that even if a diagnosis of post-concussion syndrome was accepted (which in their view should not be the case) or it was determined that the worker suffered whiplash, the natural history of recovery is for improvement in symptoms with the passage of time, not the opposite, as in this case.

The advocate asked that the panel accept the opinion of the three WCB medical advisors, all of whom indicated that there is no ongoing evidence of disability, whether psychological or physical, which is related to the strain injury that occurred over ten months earlier, and that the appeal be dismissed.

Analysis

The issue before the panel is whether or not the worker is entitled to further benefits after May 29, 2017. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained a loss of earning capacity and/or required medical aid after May 29, 2017 as a result of her July 13, 2016 workplace accident. For the reasons that follow, the panel is unable to make that finding.

The panel notes at the outset that while medical information on file refers to a diagnosis of PTSD, there is insufficient evidence to satisfy the criteria for such a diagnosis as set out in the DSM-5 (Diagnostic and Statistical Manual of Mental Disorders, fifth edition). As such, the panel is unable to accept a diagnosis of PTSD.

With respect to the diagnosis of concussion and post-concussion syndrome, the panel is unable to find, based on our review of the information on file and as presented at the hearing and on a balance of probabilities, that the worker sustained a concussion as a result of the July 13, 2016 motor vehicle accident.

In arriving at that conclusion, the panel places significant weight on the information of file provided at or around the time of the accident. The panel relies in particular on the medical report from the paramedics who attended the worker at the scene of the accident and indicated that she was alert and there was no focal neurologic deficit and no signs of head trauma/injury. Their assessment of the worker indicated that she had a Glasgow Coma Score (GCS) of 15, which the panel understands to be the highest possible score and confirms the worker was fully alert. The report further indicated that the worker complained of pain to her right shoulder, radiating pain down her right arm, and "denied any other injuries and denied need for ambulance transport." The paramedics reported that the worker was not knocked out, that she was assessed then picked up by her husband and that she signed a refusal of treatment/transport by the paramedic service.

The panel also places significant weight on the Intake report from the employer, which indicates that the accident occurred at 3:30 p.m. and that the worker reported it to the employer within 15 minutes, by 3:45 p.m. The panel notes that the Intake report contains a significant amount of detailed information with respect to the incident itself, including that:

There were 3 cars total at the 4 way stop, one to the left of her and one across from her. Then the worker proceeded to drive through the 4 way stop and then suddnely (sic) a car to the right of her T-boned her vehicle… The vehicle across from her stopped to help her, and the vehicle that hit her got out to exchange the information. Worker doesn't remember really what happened but the vehicle that wistnessed (sic) the incident didn't see the vehicle stop at the stop sign. Worker was able to exchange information with the other driver and both cars were towed. She also took the witnesses information.

The worker acknowledged at the hearing that she would have provided the information which is recorded on the Intake report.

The panel finds that the evidence from the time of the workplace accident is not consistent with the worker's later presentation or issues. The panel finds, in general, that the worker was a poor historian, as there are inconsistencies in the information on file and as presented at the hearing. The panel notes, for example, that the worker had very little recollection at the hearing of what happened after the accident. She indicated that the only conversation she recalled having with the paramedics was that they asked if they could take her vitals, and she did not remember signing the refusal of treatment. She went on to indicate, however, that she blacked out at the time of the accident. She said that she was mostly unable to see, but could hear. The panel notes that this information is inconsistent with not only the report from the paramedics, but also inconsistent with the worker's own evidence as provided to the employer and with the initial medical reports on file.

In this regard, the panel also notes that in response to questions from the panel, the worker's spouse indicated that he arrived at the scene of the accident within approximately ten minutes of its occurring. He said that he learned of the accident from a text message which the worker had sent him. The worker indicated that she thought she had phoned her spouse, but did not dispute that she had texted him.

Based on our review of the evidence, the panel is satisfied, on a balance of probabilities, that the worker was alert and oriented and did not suffer a loss or consciousness or alteration in her mental state at the time of the accident, and that her presentation was not consistent with a concussion.

The panel notes that in arriving at that conclusion, we considered the statements provided in advance of the hearing from the worker's husband and the insurance agent, but were unable to attach much weight to those statements. The panel notes that the statements, setting out their recollection of the worker's condition at that time, were prepared at least 15 months after the accident, and are not consistent with early evidence.

The panel also reviewed, but is unable to place weight on, medical reports from a treating neurologist and pain management specialist which were submitted in advance of the hearing. The panel notes that the reports were based on different histories than that accepted by the panel based on our review of the evidence, as both physicians noted, among other things, that the worker lost consciousness at the time of the accident.

In summary, the panel is satisfied that the evidence does not support that the worker sustained a concussion as a result of the workplace accident. Given our finding regarding the absence of a concussion, the diagnosis of post-concussion syndrome also cannot be supported.

With respect to the diagnosis of whiplash, the panel accepts that the worker suffered whiplash-like symptoms at the time of the accident, but is satisfied, on a balance of probabilities, that those symptoms had resolved by May 2017. While the worker's family physician noted in her September 9, 2016 report that the worker indicated on August 31, 2016 that her pain was slowly improving, the panel is satisfied that the medical reports overall show that the worker's symptoms were not progressing and the worker's condition inexplicably started to deteriorate without any rationale to explain why her recovery would be reversed.

The panel places weight on the WCB medical advisor's report, following her call-in examination of the worker on December 12, 2016, where she noted that most people recover from a strain type injury within three months, but some can take longer. The medical advisor went on to note that the natural history is improvement over time, but the worker had shown no improvement, with treatment, for over five months. The medical advisor indicated that she could not account for the worker's symptoms, noting that most of the worker's symptoms had increased with activity, but the worker reported no pattern to her increased symptoms.

The panel also places weight on the March 22, 2017 finding by the treating neurologist that the neurologic examination of the worker was completely normal with no evidence of any residual problem that may have been present earlier.

The panel notes that while he worker continued to report ongoing problems after that, the reports on file show that the medical professionals appeared unable to localize or diagnose the problem. In his December 6, 2017 report to the worker advisor, the worker's family physician thus stated that the worker's "symptoms unfortunately don't have any pattern that her or I could determine" and the "variability of her symptoms is challenging."

Based on the foregoing, the panel is unable to relate the worker's symptoms after May 29, 2017 to her workplace injury, and finds, on a balance of probabilities, that her compensable sprain/strain or whiplash injury had resolved by May 29, 2017.

In the result, the panel finds, on a balance of probabilities, that the worker did not sustain a loss of earning capacity or require medical aid after May 29, 2017 as a result of her July 13, 2016 workplace accident. The panel therefore finds that the worker is not entitled to further benefits after May 29, 2017.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 15th day of April, 2019