Decision #32/20 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to wage loss benefits after March 8, 2019. A hearing was held on January 14, 2020 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss benefits after March 8, 2019.
That the worker is not entitled to wage loss benefits after March 8, 2019.
On December 21, 2018, the worker reported to the WCB that she injured her head, whole back and neck on December 20, 2018 when she slipped while exiting a parkade at work, landing on her back then hitting her head on the cement by the exit door. The worker reported a lump on her head and a headache but no loss of consciousness. She continued in to work but then reported feeling light-headed, dizzy and nauseous. The worker attended at the local emergency department on the same date where her complaints of headache, "seeing stars" and pain to her upper back and neck area were noted. A CT scan was performed indicating "No intracranial/cervical spine injury is seen." The worker was diagnosed with a neck strain and a concussion was queried. It was recommended that the worker remain off work, follow up with her family physician and attend physiotherapy.
The worker was seen at a walk-in clinic on December 24, 2018, where she reported that she injured her head and back after slipping in the parkade at work and had dizziness, nausea, a sore neck, back and shoulders and felt light-headed. The physician who examined the worker noted tenderness in her neck, shoulder and back, with a decreased range of motion. The physician diagnosed her with a concussion and a neck/back/shoulder strain, and recommended physiotherapy and that the worker remain off work for one week.
The worker discussed her claim with a WCB adjudicator on December 31, 2018. She confirmed the mechanism of injury as set out in her initial report. She noted that it took her a while to get up after she fell and she immediately felt "off" and "whoozy" but made her way in to work. The worker further noted that she had a "rush of nausea" and once her co-workers had arrived, left work to be seen at the emergency department. On December 31, 2018, the worker was seen for a follow-up appointment at the walk-in clinic, where the attending physician noted that the worker was awaiting a consult with the WCB's concussion program. At an initial physiotherapy assessment on January 8, 2019, the physiotherapist noted the worker's complaints of extreme dizziness, loss of balance (vertigo) and functional difficulties, and provided a diagnosis of concussion, headaches, whiplash cervical spine, and dizziness/loss of balance - vertigo.
On January 18, 2019, the worker attended a call-in examination with a WCB medical advisor. Following the examination, the WCB medical advisor opined that the worker "…does not meet the WCB criteria for concussion diagnosis." The medical advisor noted that the worker had full recollection of the events of December 20, 2018, and while she reported symptoms, including dizziness, nausea and some visual symptoms after the accident, there was no evidence that a material interruption in brain function occurred immediately at the time of incident as would be substantiated by an observed or self-reported loss of consciousness, confusion and/or disorientation, or loss of memory of events immediately before or after the accident. The medical advisor opined that the worker's likely diagnosis with respect to the workplace accident was a contusion head injury and a neck strain/sprain. The medical advisor recommended a graduated return to work of four hours a day, increasing to eight hours a day over two to four weeks, and continued physiotherapy related to her neck. A workplace restriction of sedentary work only was also recommended, to be reviewed in two to four weeks' time. The employer was advised of the worker's restrictions and the recommended graduated return to work schedule on January 21, 2019.
On January 25, 2019, the worker was seen by a sports medicine physician, who noted the worker's complaints of constant headaches, sensitivity to light and noise, and dizziness, and diagnosed the worker with "post concussion syndrome withour (sic) medical management - untreated." On January 29, 2019, the worker's file, including the January 25, 2019 sports medicine physician's report and the report of a January 18, 2019 MRI were reviewed by the WCB medical advisor. The WCB medical advisor noted that the January 18, 2019 MRI was normal and there was no new medical information which would substantiate a change in the opinion from the January 18, 2019 call-in examination, including with respect to the worker's capacity to participate in a graduated return to work program. The medical advisor further opined that the worker's diagnosis of a neck sprain/strain and contusion head injury had "…an excellent prognosis for complete recovery over a period of days to weeks, rather than months." On February 4, 2019, the worker's treating sports medicine physician referred the worker to a neurologist who specializes in headaches on an urgent basis.
On February 6, 2019, the WCB case manager met with the worker, her union representative and the employer to discuss the graduated return to work plan and the employer's offer for accommodation of sedentary duties starting at four hours per day to begin February 7, 2019. The worker advised, however, that she was declining to participate in the graduated return to work program based on the advice of her physician that she remain off work. By letter dated February 6, 2019, Compensation Services advised the worker that her claim had been accepted for a neck strain/sprain and contusion injury, which would typically resolve within approximately six to eight weeks. Compensation Services set out the graduated return to work plan and noted that the worker's entitlement to wage loss benefits would end on March 9, 2019, being the date the worker was to return to her full regular duties upon completion of the return to work plan.
Additional medical information from the worker's treating sports medicine physician was received on February 21, 2019, and reviewed by the WCB medical advisor. On March 6, 2019, the WCB medical advisor opined that the submitted medical information did not change the earlier opinions on the file. On March 7, 2019, Compensation Services advised the worker that there was no change to their February 6, 2019 decision.
The WCB subsequently received a report dated March 20, 2019 from the neurologist who specializes in headaches. The neurologist opined that the worker had "…a history of posttraumatic chronic migraine" and had been dealing with vestibular dysfunction. An adjustment to the prescribed medication was recommended. On March 25, 2019, Compensation Services advised the worker that the neurologist's March 20, 2019 report provided no new medical information and there was no change to the February 6, 2019 decision.
On April 29, 2019, the worker requested that Review Office reconsider Compensation Services' decisions, noting her disagreement with the decisions and that her treating healthcare providers had diagnosed her with a concussion. The worker further noted that she continued to suffer the effects of the concussion, including fatigue, headaches, nausea, irritability and forgetfulness.
On May 30, 2019, Review Office determined that the worker was not entitled to wage loss benefits after March 8, 2019. Review Office accepted and relied on the opinion of the WCB medical advisor that the worker did not meet the criteria for a concussion diagnosis, and the opinion of the worker's treating neurologist, who did not diagnose the worker with a concussion or post-concussion symptoms but provided a diagnosis of posttraumatic chronic migraine. Based on the opinions provided, Review Office found that the worker was capable of participating in the graduated return to work plan, with the modified duties, as of February 7, 2019. Review Office noted that had the worker participated in the graduated return to work plan, she would have returned to her full regular hours as of March 9, 2019.
On July 2, 2019, the worker's representative appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.
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 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.
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 responded to questions from her representative and from the panel.
The worker's position was that the evidence supports her injuries were greater than what the WCB accepted on this claim, that she had not sufficiently recovered from the effects of her workplace accident to allow her to return to full duties as of March 8, 2019, and she is entitled to wage loss benefits beyond that date.
The worker's representative submitted that the worker's fall and hit to her head were significant enough to cause trauma to her head and/or brain and structures of her neck. The representative referred to the early reports on file and submitted that the reported symptoms fell in line with a concussion, a neck strain/sprain or whiplash-type injury as well as a head contusion.
The worker's representative pointed to medical literature which was provided in advance of the hearing, referring to general information on concussions, and submitted that the medical information on file confirmed that the worker had all of the symptoms which were referenced in that literature. The representative noted that the worker saw stars when she fell and hit her head, and that the symptoms at the time of the accident and as documented by the WCB medical advisor in his January 18, 2019 report are symptoms of a concussion, post-concussion syndrome and neck dysfunction.
The representative submitted that the mechanism of injury in this case, of a blow to the back of the head, neck and upper back, was consistent with the cause of a concussion as described in the medical literature. The representative submitted that the literature further indicated that symptoms from a concussion that last months or even a year or more after the injury, including headaches and dizziness, are post-concussion symptoms or syndrome, and that the worker continued to experience these symptoms.
The worker's representative noted that the WCB accepted the worker's injuries as strain/sprain and contusion injuries, and accepted that the ongoing difficulties were directly related to her workplace injury up until March 8, 2019. The representative submitted that while the decision to discontinue benefits was based on the WCB medical advisor's report that the major symptoms appeared to be related to a resolving neck sprain/strain injury, the medical evidence subsequent to his examination counters this opinion, as the worker's neck pain and disability continued and was not resolving. The representative further submitted that other ongoing symptoms were also caused by the fall which still affected the worker's functioning and should also be accepted as compensable.
The worker's representative submitted that prior to wage loss benefits being discontinued, the sports medicine physician was provided with a form related to the employer's offer of sedentary duties, including a job description, on which the physician stated that the worker was not fit for work as at February 12, 2019, and supported a diagnosis of concussion for which the worker had not had proper medical care from the beginning, which would often lead to prolonged symptoms and longer recovery.
The worker's representative asked that the panel take into consideration all medical reports beyond March 8, 2019 as they support a loss of earning capacity existed and do not support a return to regular employment. The representative noted that none of the worker's attending healthcare providers cleared the worker to return to full regular duties beyond March 8, 2019, due to ongoing difficulties.
The representative submitted it is clear that a loss of earning capacity exists because of the workplace accident and the symptoms associated with the accident. The representative noted that the neurologist's March 20, 2019 report confirmed the report of headaches and findings of tenderness in the occipital regions of the head, being areas which coincide with the mechanism of injury. There is a continuum of ongoing difficulties associated with the areas of injury, being the occiput head area and neck, and the WCB accepted vestibular deficits, which continue to disable and prevent the worker from returning to regular duties and counter the WCB's position that she has recovered.
It was submitted that medical information from the WCB's own physiotherapy consultant dated April 3, 2019 confirmed non-recovery, as he authorized six vestibular sessions on the compensable diagnosis of neck strain and contusion. The June 17, 2019 discharge report subsequently confirmed that the worker was disabled from work beyond the date of the incident, noting ongoing severe daily headaches, identifying a further treatment plan and indicating that a return to regular duties is unknown. A further physiotherapy report dated November 26, 2019 which was provided in advance of the hearing confirms the worker's ongoing difficulties as caused by the workplace accident continued beyond March 8, 2019.
In conclusion, the worker's representative submitted that there is no doubt the worker suffered injuries to her head, neck and upper back at the time of the fall. The WCB accepted injuries to the neck and head related to the workplace accident, and the medical information continues to support the head and neck difficulties have not resolved to the point of allowing medical clearance to return to some form of employment. The medical evidence therefore supports a loss of earning capacity continued to exist beyond March 8, 2019, and as such the worker is entitled to wage loss benefits after that date.
The employer was represented by an advocate and by the employer's WCB Coordinator. The advocate provided a written submission in advance of the hearing and made an oral submission to the panel.
The employer's position was the worker had been fairly compensated, receiving over 11 weeks of benefits for a head contusion and neck strain injury, and was capable of returning to work in her regular sedentary duties by March 8, 2019 when her benefits ended.
The employer's advocate noted that they did not dispute the mechanism of injury. They did not, however, agree that the worker sustained a concussion. The advocate submitted that the worker had a history of severe headaches and similar symptoms prior to this claim. The advocate submitted that the same sort of complaints of headaches, nausea, dizziness and neck pain, and an aversion to returning to work due to headaches, were noted in connection with a March 18, 2011 injury and a September 8, 2017 claim.
The advocate submitted that the symptoms the worker described are not specific to a concussion. She noted that the medical advisor on the 2017 claim and the medical advisor on this claim each indicated that the cause of headaches are multifactorial in nature, and that symptoms of both concussion and neck strain may include the sort of complaints which were made by the worker in this claim. In both prior claims, the worker complained of headaches, dizziness and nausea, but did not have a concussion.
It was submitted that the WCB physiotherapy consultant's authorization of vestibular treatment did not mean he agreed with the diagnosis of a concussion. Rather, the physiotherapy consultant clearly stated that the treatment was for headaches and dizziness.
The advocate submitted that the November 26, 2019 report from the worker's physiotherapist provided in advance of the hearing validated the employer's position. The advocate noted that the report referred to the worker's unusual presentation and that a migraine disorder, high anxiety and the worker's "exaggerated perception of symptoms" might become a problem in her progression, and stated that in their view, this was exactly what happened in this case.
The advocate asked that the panel accept the opinion of the WCB medical advisor who examined the worker on January 18, 2019, less than one month after the workplace accident, and concluded that the worker did not have a concussion based on several factors, including her clear recall of the event. The advocate submitted that the WCB medical advisor's opinion was validated by the treating neurosurgeon, who examined the worker on March 20, 2019 and did not provide a diagnosis of concussion, but reported that she presented with a history of posttraumatic chronic migraine.
The advocate referred to a prior Appeal Commission decision which referenced the WCB's Healthcare Position Statement for Concussions (the "WCB Position Statement"). While acknowledging that each case is considered on its merits, the advocate noted that prior appeal panel decisions have generally accepted the criteria that must be met to substantiate a diagnosis of concussion as set out in the WCB Position Statement, and submitted that the worker did not satisfy those criteria.
The advocate noted that the prognosis for recovery from a neck strain and contusion, such as was diagnosed in this case, was for complete recovery over a period of a few days to weeks, rather than months. The advocate recognized that each individual recovers at a different rate, but stated that the employer is of the view that the worker was capable of returning to her regular sedentary duties, especially since the employer offered a six-week graduated return to work as an "extra" in the unit, starting at four hours per day on February 7, 2019.
In the employer's view, there was no valid physical reason why the worker could not have started the graduated return to work. Duties which the worker described as being stressful were not necessarily even part of the initial return to work. The advocate noted that the worker had indicated to the WCB medical advisor at the call-in examination on January 18, 2019 that she felt she was capable of working at that position, but did not even start or attempt a return to work and had not returned to work at the time of the appeal hearing.
In conclusion, the advocate submitted that the worker's history of headache, nausea and vomiting is a pre-existing chronic condition and that any loss of earning capacity beyond March 8, 2019 is not due to the workplace injury. The advocate submitted that the decision to end benefits as of that date was reasonable and appropriate, and the worker's appeal should be dismissed.
The issue before the panel is whether or not the worker is entitled to wage loss benefits after March 8, 2019. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity after March 8, 2019 as a result of her December 20, 2018 workplace accident. The panel is unable to make that finding.
Based on our review of all of the evidence, on file and as presented at the hearing, and the submissions of the parties, the panel is not satisfied, on a balance of probabilities, that the worker's symptoms or ongoing condition as at March 9, 2019 were related to her December 20, 2018 workplace accident or injury.
The panel accepts that the evidence establishes the worker suffered a neck sprain/strain and contusion injury as a result of her December 20, 2018 accident. The panel is unable to find, however, that the worker suffered a concussion as a result of the December 20, 2018 accident.
In concluding that the worker did not suffer a concussion, the panel considered the criteria in the WCB Position Statement and finds that they have not been met. The panel notes that while the WCB Position Statement is not binding on us, we are of the view that it is based on current thinking on concussions, and is consistent with our understanding of the current literature on concussions. The WCB Position Statement states, in part, as follows:
The following criteria must be met to substantiate a diagnosis of concussion in relation to a workplace accident:
The application of a force to the brain of sufficient intensity, either from blunt trauma to the head, an acceleration or deceleration mechanism or exposure to blast that results in one or more of the following immediate manifestations:
• Observed or self-reported loss of consciousness
• Observed or self-reported alteration in mental state at the time of injury, such as confusion and/or disorientation
• Loss of memory for events immediately before or after an injury
• The occurrence of an acute neurologic deficit.
Post accident symptoms such as headache, dizziness, irritability, fatigue and/or poor concentration, including when identified soon after an injury, can be used to support the diagnosis of concussion but cannot be used to make the diagnosis of concussion in the absence of the criteria listed above.
The panel notes that the worker has consistently indicated that she did not suffer a loss of consciousness at the time of the incident. The WCB Position Statement indicates, however, and the panel accepts, that there does not have to be a loss of consciousness for there to be a concussion. The Position Statement refers to four criteria or manifestations of a concussion, one or more of which must be established. Based on our review of the evidence, the panel is unable to find that any of these criteria have been satisfied in this case.
The worker described the workplace accident at the hearing. She said that when she fell, she hit her back and the back of her head "pretty hard." Describing her symptoms, she said she "immediately started to see stars…and needed a minute just to get a grip of what had just happened." The panel notes that the worker's description of "seeing stars" was also reported on the hospital emergency report from the day of the accident.
While the worker's representative argued that seeing stars indicates that the worker was "a little bit disoriented" and fulfills the criteria for a concussion, the panel does not accept this argument. The panel is not satisfied, based on the evidence, that there was physical trauma of sufficient force that would lead to an immediate brain injury, an alteration in the worker's mental state at the time of injury as contemplated under the Position Statement, or an acute neurologic deficit. The panel further notes that the evidence on file and at the hearing shows that the worker was able to recall a significant amount of detail with respect to the incident and events immediately before and after the incident.
The panel notes that our conclusion in this regard is consistent with the opinion of the WCB medical advisor based on his call-in examination of the worker on January 18, 2019. The panel also places weight on the March 20, 2019 opinion of the worker's treating neurologist who, following his examination of the worker, diagnosed her with a "history of posttraumatic chronic migraine," and did not diagnose her with a concussion. While the worker stated at the hearing that the neurologist had told her at the time that she had a concussion, the panel is unable to accept that statement as we would have expected the neurologist to have referred to a concussion or post-concussion syndrome in his report if he had indeed made such a diagnosis.
With respect to the duration of the worker's injury, the panel places weight on the January 29, 2019 opinion of the WCB medical advisor, who opined that:
A neck sprain/strain injury without associated radiculopathy, and a contusion head injury (with or without associated concussion) are self-limiting conditions, both with an excellent prognosis for complete recovery over a period of days to weeks, rather than months.
It should be noted that even in the setting of concussion, the prognosis for complete recovery remains the same as the medical literature supports that the vast majority of individuals will recover from concussion over a period of a few days, to a few weeks, with a small minority having symptoms which persists (sic) up to or beyond 3 months.
The panel accepts the WCB's opinion in this regard, which is consistent with our understanding of the typical recovery period for such an injury. The panel is unable to identify any exceptional circumstances which would support that the worker's compensable injury would have been extended so far beyond the typical recovery period and remain ongoing at the time of the hearing and beyond.
Based on the available evidence, the panel finds that the worker's injury had sufficiently resolved to enable her to begin a graduated return to work as contemplated, starting February 7, 2019 and ending with her return to full hours or duties on March 9, 2019. In this regard, the panel places weight on the WCB medical advisor's notes of his call-in examination of the worker on January 18, 2019, where he noted, in part that the worker:
… reported she would like to go back, and feels that she would be capable of working at the front desk, but does not think she could work in [position] at the present because this requires too much quick activity…
I also discussed with [the worker] the possibility of a graduated return to work. She reported that she is open to this idea as long as she is not working at the [position]. She reported she feels that she would be capable of working at the front desk, but that there is too much activity at the [position] and she does not think she is ready for that yet. I discussed with [the worker] that early return to work at a safe capacity has been shown to benefit recovery. She was open to this concept.
My recommendation is therefore return to work at four hours a day graduating up to eight hours a day over the course of the next two to four weeks….
The panel notes that when these comments were put to the worker at the hearing, she responded that:
…I didn't say that then. While I met with [the WCB medical advisor] I had my notes and what not on my phone, I wasn't able to just readily let him know what had happened. I had everything documented. When he did talk to me about work, he asked me if I enjoyed my job, it if would be, you know, if I was able to return, where I would be comfortable returning…But I never at no time said that I was ready to return. There was definitely conversation about work though.
The panel acknowledges the worker's comments, but is unable to accept her evidence in this regard. Rather, the panel prefers the comments of the WCB medical advisor, as having been documented at the time, and accepts that the worker was fit to return to work at that time. The panel further finds that this is supported by a memorandum on file of a conversation between the worker and her case manager on January 22, 2019, where the case manager reported that the worker said "…she is willing to go back to work despite feeling nauseous and having difficulty driving…"
The panel recognizes that the treating sports medicine physician has maintained that the worker was not fit to return to work. On February 12, 2019, the physician wrote that "WCB is incorrect. She is not fit for work…we do not send patients back to work with active symptoms. She is following the active concussion recovery protocol." The panel is unable to place weight on the sports medicine physician's opinion in this regard, and notes that it is based on her diagnosis of a concussion injury and post-concussion syndrome which as we have previously found not to be acceptable as a compensable injury arising out of her December 20, 2018 workplace accident.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's compensable injury had resolved and the worker did not suffer a loss of earning capacity after March 8, 2019 as a result of her December 20, 2018 workplace accident. The worker is therefore not entitled to benefits after that date.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Payette, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 13th day of March, 2020