The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his recurrent health difficulties are not a consequence of the March 23, 2017 accident. A hearing was held on January 17, 2020 to consider the worker's appeal.

Issue

Whether or not the worker's recurrent health difficulties are a consequence of the March 23, 2017 accident.

Decision

The worker's recurrent health difficulties are a consequence of the March 23, 2017 accident.

Background

On March 27, 2017, both the worker and the employer filed incident reports with the WCB indicating that the worker sustained an injury to his left ribs on March 23, 2017 in an accident involving a snowmobile while working in a remote area. The worker attended for treatment at a local emergency department on March 24, 2017. On the triage report, the worker reported injuries to his head and abdomen after being thrown from a snowmobile. The treating emergency physician noted no loss of consciousness witnessed by co-workers, the worker was alert and oriented but had a left sided headache and pain to his left side ribs with deep breaths. A laceration was noted on the worker's left forehead that was healing. An x-ray taken that day of the worker's chest noted no left-sided rib fractures. The physician recommended the worker remain off work for one week.

The worker had a follow-up appointment with a nurse practitioner on March 29, 2017. A diagnosis of MTBI (mild traumatic brain injury) post concussion and a soft tissue injury to his left side/shoulder, neck and ribs was provided. The worker reported that he had post concussion symptoms of headaches every day with associated nausea. It was further reported by the worker that at the time of the accident, he possibly may have had a brief change or decline in his loss of consciousness but did not completely lose consciousness and had no seizures.

The WCB contacted the worker to discuss his claim on April 26, 2017. The worker confirmed the mechanism of injury and advised that his symptoms "…are getting a bit better." He noted that only the pain in his head, at the base of his neck and ongoing headaches and nausea remained. He further advised the WCB that he had an incident approximately two weeks prior of losing consciousness and waking up in an ambulance. He reported having a headache that day, more severe than normal. He was taken to a local hospital where he was advised this incident was a result of his ongoing difficulties from his head injury.

The worker continued to seek medical treatment from his family physician and a physiotherapist and attended for a call-in examination with the WCB on July 21, 2017 to be assessed for his ability to return to work and any restrictions required. The WCB medical advisor opined that the worker's current diagnosis was "…non-specific neck pain with no ominous or neurogenic features." Further, it was noted that the worker's ongoing complaints of a headache "…would be related to a cerviogenic headache rather than concussion." The WCB medical advisor based the diagnosis on the reported mechanism of injury, the active range of motion of the worker's neck, noted tenderness with testing at the worker's C5, C6 and C7 paraspinal areas, no reported loss of consciousness, no dazed feeling, no noted headache at the time of the accident but appearing later at the emergency department and the worker's improvement with traction and mobilization of his neck. The WCB medical advisor further provided that the worker would be capable of returning to work with recommended restrictions of no repetitive flexion, extension and rotation of the cervical spine; positional changes every 30 minutes; and no lifting greater than 50 pounds. It was further recommended that the worker return to work gradually, starting with four hours per day, increasing by two hours every two weeks until full hours are reached. The employer advised the WCB on July 31, 2017 that the worker would be returning to work on August 8, 2017. On October 26, 2017, the employer advised the worker had returned to his full regular duties.

On December 5, 2017, the WCB was contacted by the worker and the employer notifying that on November 29, 2017, the worker had re-injured his neck while on a snowmobile and was suffering from a recurrence of his initial March 23, 2017 injury with his neck stiffening and a headache developing. In a discussion with the WCB on December 11, 2017, the worker confirmed that he felt his symptoms returning after patrolling on a snowmobile on November 29, 2017. He reported that he remained at the remote site he was working out of until November 30, 2017 when he went to the hospital. The hospital report for November 30, 2017, noted the worker's complaint of a headache, neck pain and nausea for the past three days and provided a diagnosis of a headache, queried whether it was a tension headache, and anxiety.

The worker's file was reviewed by a WCB medical advisor on December 18, 2017. The WCB medical advisor opined the worker's diagnosis was a non-specific headache, "…based on subjective symptoms rather than consistent objective findings via multiple healthcare providers." It was noted that there was no accident or injury noted as occurring on November 28, 2017 and that the worker had returned to his full regular duties. The WCB medical advisor could not relate the worker's current difficulties to his original compensable injury on March 23, 2017. On December 20, 2017, the worker was advised that his current difficulties were not related to his March 23, 2017 workplace accident.

The WCB received a report from the worker's treating neurologist on January 22, 2018. The neurologist noted the worker's report of chronic headaches at least twenty days per month after a snowmobile accident "…when he fell off and hit his head against the ice. This was particularly around the left front region and he did suffer from loss of consciousness." The neurologist diagnosed the worker with posttraumatic chronic migraine and recommended preventative medication. The neurologist's report and the worker's file was again reviewed by a WCB medical advisor on February 11, 2018 who noted that the treating neurologist's report did not provide objective findings to "…support an anatomical diagnosis" for post-traumatic migraines, which was noted to be a diagnosis applied to subjective symptoms. The WCB medical advisor could not support the neurologist's diagnosis and was unable to relate the worker's current symptoms to the workplace injury. On February 13, 2018, the WCB advised the worker the December 20, 2017 decision remain unchanged.

On March 27, 2019, the worker requested reconsideration of the WCB's decision to Review Office. With his request, the worker submitted written statements from two of his co-workers who witnessed the March 23, 2017 accident and provided a chronology of his ongoing symptoms. Review Office returned the worker's file to the WCB on March 28, 2019 for further investigation.

The WCB gathered further medical information from the worker's treating healthcare providers from June and July, 2018 and on April 15, 2019, a WCB medical advisor reviewed the worker's file. The WCB medical advisor opined, after review of the new medical information, that the information did not support the worker sustained a concussion from the workplace accident of March 23, 2017. Further, the WCB medical advisor could not relate the worker's current symptoms to the workplace accident. The worker was again advised on April 16, 2019 that there was no change to the previous decisions and the worker's difficulties were not acceptable as related to the March 23, 2017 accident.

On May 14, 2019, the worker requested reconsideration of the April 16, 2019 decision to Review Office. The worker relied on the information he submitted with his initial March 27, 2019 request. The employer provided a response in support of the WCB's decision on July 10, 2019 and the worker submitted a further response on July 24, 2019. Copies of each submission was provided to the parties.

Review Office determined on July 26, 2019 that the worker's recurrent health problems were not compensable. Review Office relied on the medical information provided nearest in time to the workplace accident and noted that when the worker was first injured, he did not report losing consciousness, "…there was not (sic) neurological compromise or altered mental state, he had no vision issues and was alert and orientated." It was noted that the worker had a contusion to his left torso, a neck strain and an abrasion on the left side of his forehead that was noted to be healing when he attended at the hospital. Review Office noted from the file that the worker returned to his full regular duties, after being cleared to return by his family physician, on October 4, 2017. Review Office accepted the December 18, 2017 opinion of the WCB medical advisor who could not relate the worker's symptoms after November 29, 2017, to the March 23, 2017 workplace accident.

The worker's representative filed an appeal with the Appeal Commission on August 1, 2019. An oral hearing was arranged.

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.

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.

The WCB's Board of Directors has established WCB Policy 44.10.20.50.10, Recurring Effects of Injuries and Illness (Recurrences) (the "Recurrence Policy") which addresses the circumstances where a worker returns to work following a compensable injury or illness, and subsequently suffers a further loss of earning capacity. The WCB will consider that the further loss of earning capacity results from a new and separate accident if the loss of earning has no relationship to the previous injury or illness. If the WCB determines that the loss of earning capacity is not the result of a new and separate accident, then the further loss of earning capacity will be considered a recurrence of the effects of a previous injury or illness.

The WCB's Board of Directors has also established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Pre-Ex Policy") which deals with issues involving pre-existing conditions. The WCB is responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment. The WCB will not provide benefits for disablement resulting solely from the effects of a worker’s pre-existing condition, as a pre-existing condition is not personal injury by accident arising out of and in the course of employment.

Worker's Position

The worker was represented by his union. The union representative made a presentation to the panel. A written copy of the presentation was provided to the panel and the employer in advance of the hearing. The worker and the union representative answered questions posed by the panel.

The worker’s position, as submitted by his union representative, is that his ongoing symptoms are a direct result of the work-related accident and injuries that he suffered on March 23, 2017. The worker's union representative submitted that medical evidence supports that the worker “more likely than not” sustained a concussion as a result of the accident. The union representative acknowledges the worker having improved sufficiently so as to be able to return to work in August, 2017 but that the symptoms the worker experienced following the November, 2017, accident are consistent with a recurrence as contemplated by WCB Policy 44.10.20.50.10. The worker's union representative denied that there is any medical evidence to conclude that he had a full recovery and that, on a balance of probabilities, the worker sustained a head and neck injury as a result of the March 23, 2017 accident which is responsible for his persistent difficulties.

Employer's Position

The employer was represented by their Workers Compensation Coordinator. The Coordinator made a presentation and answered questions from the panel.

The Coordinator's position is that the worker had recovered from the effects of his compensable injury and that his ongoing issues can not be causally linked to the compensable injury sustained on March 23, 2017. The Coordinator urged the panel to consider the WCB’s Concussions Position Statement which sets out criteria that must be present to substantiate a diagnosis of concussion related to a workplace accident. The Coordinator submits that there is no evidence establishing that the worker lost consciousness following the accident, thus the criteria for concussion was not met. Accordingly, the Coordinator concluded that the worker’s on-going symptoms are not compensable in accordance with the Act and WCB policies.

Analysis

The panel carefully considered the medical evidence, particularly in relation to the question of whether or not the worker suffered a concussion. The evidence supports a conclusion that the worker suffered a minor traumatic brain and neck injury as a result of the March 2017 accident. The panel does not find it necessary to determine whether or not the worker suffered a concussion; the WCB accepted that he suffered a compensable injury as a result of the March, 2017 accident.

The panel accepts that the worker's symptoms from his March 2017 compensable injury gradually improved throughout 2017 which resulted in him participating in a graduated return to work in the fall of 2017.

However, although the panel notes that the worker returned to full duties, he was still experiencing ongoing medical issues. This is supported by a file note dated September 5, 2017 where the worker identified ongoing headaches and difficulty with his vision. The issues of ongoing headaches is also referred to in an October 18, 2017 medical report.

The panel also notes that although the worker returned to full duties without restrictions in October 2017, his evidence at the hearing was that his duties remained generally sedentary during that period of time until he went on his snowmobile trip on November 29, 2017. The worker noted that he is not required and does not wear a helmet when operating a snowmobile in remote areas.

The worker's reported symptoms resulting from him driving his snowmobile to a remote lake were; headaches, vertigo, nausea, severe pain to his neck and left trapezius. The panel notes that these symptoms are consistent with his post-accident symptomology reported after his March 2017 compensable injury.

It is the panel's understanding that driving a snowmobile through the bush to a remote area would be an activity that involved exposure to loud noises, constant changes in speed and direction, physical exertion as well as constant repositioning of the body in relation to the terrain. The panel accepts that for an individual who may still be symptomatic from the residual effects of a head injury, driving a snowmobile in the conditions noted could trigger the worker's symptoms as he noted occurred on November 29, 2017.

As a result of the foregoing, as well as the information contained in the file, the panel is able to find, on a balance of probabilities, that the worker suffered a recurrence of his symptoms that are the result of his March 2017 compensable injury

The panel accepts that the worker’s symptoms gradually dissipated and he participated in a graduated return to work in August 2017. However, the panel finds the snowmobile incident in November 2017, resulted in symptoms such as vertigo and nausea, which were consistent with those which he suffered following the March 2017 accident. The panel finds, on a balance of probabilities, based on the claim information submitted in relation to the November 2017 incident that the worker suffered a recurrence of symptoms which were related to the compensable injury of March 2017.

There was insufficient medical evidence provided to the panel regarding the period of time for

which the worker is entitled to WCB benefits. The panel refers the claim back to initial adjudication for a determination of the duration of the worker’s benefits.

Panel Members

K. Gilson, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Gilson - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 19th day of February, 2020