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 in relation to the June 14, 2015 accident.

A hearing was held on December 19, 2018 and reconvened on December 9, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits in relation to the June 14, 2015 accident.

Decision

The worker is not entitled to further benefits in relation to the June 14, 2015 accident.

Background

The worker filed a Worker Incident Report with the WCB on June 15, 2015 indicating he suffered an injury to his forehead at work on June 14, 2015. He reported: "A client put his dish in the sink, turned and punched me in the forehead without any warning. He was not agitated at the time. I was not knocked down. I have a 2 cm cut just above my left eyebrow."

The worker was taken to a local emergency department where he reported feeling "fuzzy" and having blurred vision to the emergency department physician. Under "Past Medical History,” the worker reported that he had a history of three concussions, the last one approximately three years prior. The physician noted that the worker did not lose consciousness, did not have a headache and was not vomiting and had no neural deficits. A small superficial laceration was noted on the worker's left forehead. It was recommended that the worker follow-up with his family physician for ongoing symptoms.

On June 16, 2015, the worker attended for an appointment with his family physician. He reported to the physician that he had been "...struck on head with tablespoon…" and was seen in the emergency department the day before due to being diagnosed with a concussion. The worker indicated that he felt "…about 85% but still a little off" and it was recommended by the treating physician that the worker remain off work until he had two consecutive days of feeling normal.

The worker returned to his regular duties on June 24, June 25 and June 26, 2015 however, he stopped working after June 26, 2015 due to ongoing symptoms of headaches, difficulty concentrating, nausea and dizziness. At a follow-up appointment with his family physician on June 29, 2015, it was recommended that the worker remain off work until July 15, 2015.

The worker was seen by a physician at the concussion care clinic on July 16, 2015. The worker's complaints of concussion-related symptoms of headache, dizziness, blurred vision, fatigue and sensitivity to light were noted. The physician at the concussion care clinic opined that the worker met the clinical criteria for post-concussion syndrome and referred the worker for cervical and vestibular therapy. It was further recommended the worker begin a return to work program as soon as he could tolerate it.

On July 24, 2015, the worker attended for a call-in examination with a WCB medical advisor. The WCB medical advisor opined that given the reported mechanism of injury, the worker's condition was a minor head injury with related relatively minor and short-term post-concussion syndrome. The WCB medical advisor noted that the worker was reporting "…quite marked and varied symptoms which are consistent with post-concussion syndrome, the degree of which at this stage, now over seven weeks post-injury is unexpected."

The WCB medical advisor went on to recommend that the worker continue with the vestibular therapy and that he would be fit for a graduated return to work in a few weeks. On August 31, 2015, a graduated return to work schedule of half days (4 hours) for two weeks, then full days (8 hours) for two weeks and then progress to twelve hour (12) shifts after that was recommended by the WCB medical advisor. The worker returned to work, on the graduated schedule, on September 3, 2015.

The worker contacted the WCB on January 29, 2016 to report a recurrence of his post-concussion syndrome symptoms. He reported nausea, dizziness, headache, no sense of balance, and short term memory loss after a stressful week at work on January 6, 2016. A doctor's report completed on January 18, 2016 noted the worker's complaints to be similar to his previous post-concussion symptoms with headaches increasing with stress, nausea and vomiting and blurry vision at times. The worker was diagnosed with a headache, post-concussion and a referral for an MRI was made.

The worker's file was reviewed by a WCB medical advisor on March 1, 2016. The WCB medical advisor opined that it had been three months since the worker had resumed his full duties and the recurrence of symptoms without a new head injury would not be typical. The WCB medical advisor further opined that the worker had not reported significant symptoms and had returned to his normal unrestricted activities for three months indicated that the worker's post-concussion condition had resolved and his current difficulties "…are not accounted for in likely (sic) relation to effects of the June 2015 compensable injury."

On March 3, 2016, the worker was advised that he was not entitled to further benefits in relation to the June 14, 2015 workplace accident.

Additional medical information was received by the WCB on the worker's file including a March 16, 2016 report from the worker's treating family physician. The physician provided his opinion that the worker's diagnosis was "…headaches thought to be post-concussive in nature." Further, the family physician noted the worker's neurologist's consult supported a "post traumatic headache diagnosis". The WCB medical advisor reviewed the worker's file together with the additional medical information received and opined on April 1, 2016 that the worker's current reported symptoms were not accounted for in relation to the June 14, 2015 workplace accident as it was determined the worker had materially recovered from the workplace injury. On April 5, 2016, the worker was advised that there was no change to the WCB's earlier decision and he was not entitled to further benefits.

On June 2, 2016, the worker requested reconsideration of the WCB's decision to Review Office. In his submission, the worker noted his healthcare providers' position that he had returned to his regular full time duties too quickly after the workplace accident which resulted in insufficient recovery time and caused a recurrence in his symptoms.

The employer provided a response in support of the WCB's decision on July 18, 2016 and the worker responded further on August 1, 2016. Copies of all submissions were provided to the parties.

Review Office determined on August 12, 2016 that the worker was not entitled to further benefits. Review Office accepted and placed weight on the WCB medical advisor's April 1, 2016 opinion that the worker's ability to resume his normal unrestricted activities for three months indicated that his concussion/post-concussion syndrome condition had resolved and his current difficulties were not related to the June 14, 2015 workplace accident. As such, the worker was not entitled to further benefits.

The worker's representative filed an appeal with the Appeal Commission on July 4, 2018. An oral hearing was convened on December 19, 2018. The hearing was adjourned in order for the panel to request additional information from third party insurers. The information was received and shared with the interested parties and the hearing was reconvened on December 9, 2019.

Reasons

Applicable Legislation and Policy

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.

In that regard, 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.

Subsection 4(2) provides that 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 loss of earning capacity during any period after the date on which the accident happens.

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…".

Further, subsection 39(2) provides that the WCB will pay wage loss benefits until such time as the worker’s loss of earning capacity ends, or the workers attains the age of 65 years.

Worker's Position

The worker was represented by a union representative who made an oral presentation at the hearing and responded to questions from the panel.

It is the worker's position, as submitted by his union representative, that he is entitled to further benefits on account of the fact that he continued to experience symptoms as a direct result of the compensable injury which he incurred on June 14, 2015.

In particular, it was the worker's position that contrary to Review Office's finding that following conservative treatment, the worker returned to his regular duties on September 30, 2015 with no reported difficulties at this time, the worker was in fact experiencing symptoms at that time. In addition, the worker's union representative pointed to physician and neurologist's statements that his symptoms were related to the June 14, 2015 accident.

In that regard, the worker's union representative submitted that the panel ought to accept that the evidence on file supports that the worker continued to suffer the ongoing effects of his compensable injury and it ought to overturn the Review Office's decision to deny him with entitlement to further benefits.

Employer's Position

The employer was represented by a Case Management Specialist who made oral submissions and responded to questions from the panel.

The employer's representative agreed with the Review Office's decision that the worker was rehabilitated appropriately from his original injury and that any impairment of ability to participate in his pre-injury workplace activities is unrelated to the June 14, 2015 injury.

In particular, the employer's representative highlighted the fact that Review Office determined that the worker sustained a minor head injury on June 14, 2015 and that following conservative treatment and short return to work plan, he returned to regular duties on September 30, 2015.

In addition, the employer's representative highlighted that the worker did not contact the WCB about any difficulties until January 29, 2016 and he did not seek any medical treatment until approximately the same time. This was more than three months after he had returned to regular duties.

Analysis

The issue before the panel is whether or not the worker is entitled to further benefits in relation to the June 14, 2015 workplace accident.

For the worker's appeal to be successful the panel must find, on a balance of probabilities, that the worker continued to experience a loss of earning capacity as a result of the injury that occurred on June 14, 2015. The panel is not able to make that finding for the reasons that follow.

Having considered the totality of the evidence on the worker's file and presented by the worker, through his union representative, at the hearing, the panel finds that the evidence does not support a cause of relationship between the worker's difficulties and the injury occurred on June 14, 2015.

In considering the question before it, the panel considered in particular the medical reports provided by the worker and those relied upon by the Review Office.

In particular, the panel finds the WCB medical consultant's opinion of March 1, 2016 to be persuasive, as they reflect the panel’s general understanding of the relationship of concussions and post-concussion syndrome as well as the findings of fact that the panel has made based on the evidence on file and as presented at the hearing. This opinion stated:

[The worker] reportedly suffered a degree of post-concussion symptoms in relation to an incident in June 2015. The typical natural history of head injuries/concussions is for gradual resolution of associated symptoms over a matter of a few days to weeks. By Sept 30, 2015, [the worker] had resumed full unrestricted duties as of Sept 30 2015, three and a half months post injury.

Three months after resuming full work duties [the worker] reported onset of headache, fatigue, dizziness and other non-specific symptoms in apparent relation to stressful and demanding duties at the workplace (Jan 4 2016).

Once symptoms of concussion have resolved, recurrence of symptoms in the absence of a new head injury is not typical. The absence of significant symptoms and the ability to resume normal unrestricted activities for a three month period following resolution of concussion/post-concussion syndrome is indicative of resolution of the condition.

The recent symptoms with onset in January 2016 are not accounted for in likely relation to effects of the June 2015 compensable injury.

With regard to the worker's physician, the panel finds it significant that, despite the fact that the physician advised the worker to report any concerns to him, or his employer, there are no complaints made by the worker to support his assertion at the hearing that he had ongoing difficulties when he returned to work and beyond. Indeed, it is significant that the worker's physician does not have any reports from the worker between September and December of 2015.

With regards to the neurologist statements, the panel notes that he appears to be relying upon an inaccurate history provided by the worker, such as reported disorientation and amnesia that is not reported or corroborated by any other healthcare providers. The panel places little weight on these opinions, as they were made without the full knowledge of the facts of the claim.

Therefore, the panel concludes that, on the balance of probabilities, the worker's current difficulties are not related to the compensable injury sustained as a result of the accident of June 14, 2015.

The worker’s appeal is dismissed.

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 7th day of February, 2020