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 benefits after June 11, 2019. A hearing was held on February 6, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after June 11, 2019.

Decision

That the worker is not entitled to benefits after June 11, 2019.

Background

On January 14, 2019, the worker reported to the WCB that she injured her head and neck at work on January 10, 2019 when she crouched down while leaving a crawl space area and "…as I stood up I hit my head on plumbing and it caused my neck to jolt back." The employer's report, which was filed January 15, 2019, confirmed the worker's reported mechanism of injury and noted she was currently receiving treatment for whiplash through her automobile insurance. On January 17, 2019, the WCB spoke with the worker, who confirmed she was in a motor vehicle accident on April 8, 2018. The worker said she was approximately 75% recovered when the workplace accident occurred, and she felt the workplace accident set her back 15 to 20% in her recovery.

In an Initial Physiotherapy Report dated January 16, 2019, the worker’s athletic therapist noted that the worker reported pain at a forehead contusion, pain in her right shoulder and neck area, difficulty sleeping when on her back and side due to pain, decreased right shoulder strength and endurance, and a forehead contusion. The athletic therapist noted limited left cervical rotation and side flexion, and diagnosed the worker with a neck flexor strain and left side frontal head area contusion.

On March 25, 2019, the worker saw her family physician, who noted that the worker reported a "new onset of vertigo-like dizziness…poor balance, room spinning." The physician reported a change in diagnosis, with "cervical vertigo now present," and referred the worker for vestibular therapy. The worker saw her athletic therapist that same day. The athletic therapist noted the worker was experiencing vertigo associated with head movements, and that she felt less dizzy and less nauseous after treatment. The therapist diagnosed the worker with "Benign Paroxysmal Positional Vertigo [BPPV] affecting her left posterior canal."

On March 26, 2019, the worker contacted her WCB adjudicator to advise that she had a vertigo attack on March 20, 2019, which her treating athletic therapist believed was due to the whiplash. The worker advised that she had had vertigo her "entire life," but it never lasted more than a minute or two. She reported that in this instance, however, it lasted five days. She further reported that prior to this attack of vertigo, she felt approximately 75 to 80% recovered, and her headaches had decreased to once a week. She said the vertigo caused a setback and aggravated her neck.

The worker's file was reviewed by a WCB medical advisor on May 20, 2019. The WCB medical advisor noted that at a follow-up appointment with the vestibular therapist on March 28, 2019, the worker reported another incident of vertigo the previous day. The medical advisor further noted that Dix-Hallpike testing, which had to be positive to confirm a BPPV diagnosis, was negative on March 28, 2019, and that a diagnosis for the worker's reported symptoms that day was not clear. The medical advisor went on to opine that in order for the worker's BPPV and non-specific dizziness to be causally related to a head bump accident such as occurred on January 10, 2019, the symptoms would have had to be immediate or within the first 24 hours of the head bump incident. The medical advisor noted that the worker reported no vertigo symptoms for more than two months after the January 10, 2019 accident, and as such, her symptoms could not be attributed to her workplace accident.

On June 5, 2019, the WCB's Compensation Services advised the worker that she was not entitled to further benefits effective June 12, 2019. Compensation Services advised that they had accepted responsibility for the worker's injury that occurred on January 10, 2019, with the accepted diagnosis being a neck flexor strain and a head contusion. Compensation Services went on to advise that the diagnosis of BPPV and subsequent non-specific dizziness was not accepted by the WCB, as these were not considered to be related to the workplace accident. Compensation Services concluded that the worker was "functionally recovered" from the effects of her compensable injury and workplace accident, and no further treatment or restrictions were required in relation to her claim.

Additional medical evidence was subsequently received, including reports from the worker's optometrist and from an MRI of the worker's brain dated July 10, 2019. The new medical information was reviewed by the WCB medical advisor, and on July 26, 2019 the medical advisor reaffirmed her May 20, 2019 opinion that the worker’s vertiginous symptoms could not be medically accounted for in relation to the January 10, 2019 workplace accident. The medical advisor further noted that "…there are no documented complaints of visual symptoms or of tracking issues prior to the optometrist's report of June 6, 2019," and opined that the worker's visual and concentration complaints were not medically accounted for in relation to the workplace accident. The medical advisor stated that although the worker's optometrist had provided a diagnosis of post-concussion syndrome, the medical evidence on file did not support the worker suffered a concussion from the workplace accident, as there was no evidence of amnesia, or of an acute neurologic deficit or alteration of the worker's mental status immediately after the accident. On July 30, 2019, Compensation Services advised the worker there was no change to the June 5, 2019 decision.

On August 28, 2019, the worker requested that Review Office reconsider Compensation Services' decision. The worker submitted that she had been seen by a second athletic therapist on June 5, 2019, who confirmed post-concussion symptoms as a result of the workplace accident in January 2019. The worker stated that she had not experienced vertigo symptoms prior to March 20, 2019 and was not diagnosed with vertigo until March 25, 2019. The worker attached further medical documents, including reports from her optometrist and her athletic therapists.

On October 22, 2019, Review Office determined that the worker was not entitled to benefits beyond June 11, 2019. Review Office placed weight on the opinions of the WCB medical advisor and accepted the worker's compensable injury as being consistent with a neck flexor strain and a head contusion, which would typically resolve within a short period of time. Review Office stated that they were unable to establish a more significant injury occurred or to account for the worker's symptoms getting worse, including the further diagnoses of BPPV and vertigo, in relation to the January 10, 2019 workplace accident. Review Office therefore found that they were unable to account for the worker's reported difficulties in relation to the workplace accident.

On October 30, 2019, the worker appealed the Review Office decision to the Appeal Commission and 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.

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 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 the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, or the worker attains the age of 65 years.

The WCB's Board of Directors has established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Policy"), which deals with issues involving pre-existing conditions. The Policy provides that:

The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of 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." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

The following definitions are set out in the Policy:

Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.

Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.

Worker's Position

The worker was self-represented on the appeal. The worker made an oral presentation at the hearing and responded to questions from the panel.

The worker's position was that she is entitled to benefits beyond June 11, 2019 as her post-concussion symptoms and vertigo are directly related to her January 10, 2019 workplace accident and claim.

The worker noted that prior to her workplace accident, she was being treated for whiplash which she suffered as a result of a motor vehicle accident on April 9, 2018. The worker submitted that when she hit her head at work on January 10, 2019, it aggravated her whiplash and resulted in a goose egg in the middle of her forehead.

The worker stated that she started having vertigo symptoms on March 20, 2019, which continued through to March 31, 2019, during which time she was physically unable to work. Her athletic therapist assessed her with vertigo, and treated her twice for that condition, on March 25 and March 28, 2019. The worker stated she had never experienced such symptoms prior to her January 2019 workplace accident.

The worker said she communicated to her athletic therapist that she continued to have vertigo symptoms and vision issues for months after her initial treatment on March 25, 2019. Due to her lingering issues, she was reassessed by her new treating athletic therapist on June 5, 2019, who confirmed she had post-concussion symptoms from her January 2019 workplace accident. The following day, she saw her optometrist, who also confirmed she had convergence insufficiency and binocular vision issues secondary to her post-concussion syndrome. The worker noted that these vision issues were not present prior to the January 2019 workplace accident.

The worker said she was told that the type of vertigo she was experiencing was cervical vertigo, which is caused by a head injury that disrupts the head and neck alignment, and can result from trauma to the neck. She said that based on her online research of medical sites, a large number of individuals who sustain closed-head injuries experience late onset symptoms of dizziness and vertigo. The worker noted that each individual is unique.

The worker submitted that documentation from her family physician, her athletic therapists and her optometrist all confirm that her vertigo and vision issues are related to her January 10, 2019 workplace accident. The worker noted that documentation with respect to the vision issues she has experienced is found in particular in the reports of her two treating athletic therapists. The worker said she has led a very active lifestyle, and her workplace accident has caused a huge disruption in her life.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is entitled to benefits after June 11, 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 and/or required medical aid benefits beyond June 11, 2019 as a result of her January 10, 2019 workplace accident. The panel is unable to make that finding, for the reasons that follow.

The worker has an accepted claim for a neck flexor strain and head contusion arising out of her January 10, 2019 workplace accident. Based on the evidence which is before us, the panel is satisfied, on a balance of probabilities, that those injuries or diagnoses had resolved by June 11, 2019 when the worker's WCB benefits ended. The panel notes that this was confirmed by the worker who indicated, in response to questions at the hearing, that she felt the neck strain and contusion and resultant aggravation of her previous whiplash condition had resolved once the WCB treatments ended, and she did not believe she was entitled to further benefits for those injuries.

The worker further confirmed that the issue on the appeal related to her vertigo and post-concussion symptoms and vision issues only, which she submitted had not resolved as at June 11, 2019. The worker stated that after her WCB benefits ended, her athletic therapist continued to treat her previous whiplash injury through her automobile insurance. At the same time, and intermingled with those treatments, her athletic therapist continued treating her ongoing vertigo symptoms and vision issues. The worker said she was discharged by her therapist in October 2019 on the basis that she had recovered from her whiplash injury. She submitted, however, that she was still suffering from her vertigo symptoms and vision issues which were related to her January 10, 2019 workplace accident and for which she was and is entitled to benefits.

The panel questioned the worker in detail at the hearing with respect to what occurred on January 10, 2019 and in the period that followed. Based on our review of the information on file and as presented at the hearing, the panel is unable to relate the worker's vertigo or post-concussion symptoms or vision issues to her workplace accident.

In arriving at that conclusion, the panel notes that we are not satisfied the mechanism of injury, as described on file and at the hearing, would have resulted in BPPV or vertigo.

Moreover, the panel notes that medical and other information on file indicates, and the worker confirmed at the hearing, that she first experienced symptoms of vertigo on March 20 or 21, 2019, more than two months after the January 10, 2019 accident. The report from the worker's family physician thus stated that the worker complained on March 25, 2019 of a "new onset of vertigo-like dizziness…" and reported a change in diagnosis, noting "Cervical vertigo now present." The treating athletic therapist, who is also described on file as being a vestibular rehabilitation practitioner, first noted vertigo or vestibular symptoms on March 25, 2019, when she reported that the worker had experienced an "episode of vertigo over the weekend…"

The panel accepts and places weight on the April 23, 2019 opinion of the WCB medical advisor, who reviewed the worker's file and opined that:

The BPPV and subsequent non-specific dizziness is not medically accounted for in relation to [the worker's] January 10, 2019 workplace accident. BPPV is relatively common in the general population. For a determination of causality to be applied to BPPV in the context of a head bump (such as occurred on January 10, 2019), the BPPV symptoms would need to be immediate or within the first 24 hours of said bump. [The worker] reported no vertigo symptoms for more than 2 months following her workplace accident. As such, said symptoms cannot be ascribed to the workplace accident of January 10, 2019.

In these circumstances, especially given the significant gap in time between the workplace accident and the onset and first mention of vertigo-like symptoms, the panel is unable to find that the worker’s symptoms of vertigo were or are causally related to her January 10, 2019 accident.

The panel is further unable to relate the worker’s diagnosis of post-concussion symptoms or syndrome and vision issues to the worker's January 2019 workplace accident.

It is the panel's understanding that diagnoses of concussion and post-concussion are linked, and that for a diagnosis of post-concussion syndrome to be accepted as compensable, it must first be established that a worker suffered a concussion.

The panel notes the worker acknowledged at the hearing that she had not been diagnosed with a concussion. The panel also reviewed the evidence to assess whether the worker's injury and symptoms met the definition of a concussion. In assessing the evidence, the panel referred to the WCB's Healthcare Services Position Statement on Concussion. The panel recognizes that the Position Statement is not binding on us, but understands it to be consistent with the current literature on concussions.

The criteria to substantiate a diagnosis of concussion in relation to a workplace iccident, as outlined in the Position Statement are:

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.

The Position Statement further states that:

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.

Based on our review of the evidence, and in particular, the medical evidence closest in time to the workplace accident, the panel finds that none of the criteria for a concussion as outlined in the Policy Statement are met. The panel is therefore unable to find that the worker suffered a concussion on January 10, 2019. The panel further finds that in the absence of a confirmed concussion in the workplace, the presence of any post-concussion symptoms cannot be medically accounted for in relation to the workplace accident.

The panel notes that the worker indicated at the hearing that she also had vision issues initially, but finds that this is not supported by the early medical reports on file. The panel also acknowledges that in his report of his examination of the worker on June 6, 2019, the worker's optometrist diagnosed the worker with vision issues "…that are secondary to Post-concussion syndrome as were not present prior to the incident." However, the panel is unable to place weight on that report or diagnosis as being related to the workplace accident, given our previous finding that the worker did not suffer a concussion as a result of her workplace accident and the fact that the worker did not see the optometrist until almost five months after the accident.

In conclusion, the panel finds, on a balance of probabilities, that the worker did not suffer a loss of earning capacity or require medical aid benefits beyond June 11, 2019 as a result of her January 10, 2019 workplace accident. The worker is therefore not entitled to benefits after June 11, 2019.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
D. Neal, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 2nd day of April, 2020