Decision #47/20 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to wage loss and medical aid benefits after July 29, 2018. A hearing was held on February 26, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after July 29, 2018.

Decision

The worker is not entitled to wage loss and medical aid benefits after July 29, 2018.

Background

The worker reported an injury to her head to the WCB on March 6, 2017. In the claim, the worker described slipping on a patch of ice, falling backwards and hitting her head on the cement at work on February 14, 2017. After the fall, she was driven to a local walk-in clinic by a co-worker where the physician diagnosed a closed head injury, concussion, musculoskeletal neck pain. The WCB accepted the worker's claim and payment of various benefits began.

On April 25, 2017, the worker attended a call-in examination with a WCB medical advisor who determined that based on the mechanism of injury, the lack of objective findings at that time and the natural history of such an injury, the worker should be able to tolerate a return to work on a graduated basis. The WCB medical advisor noted that the worker reported her “…biggest problem to be with her eyes and concentration…” but concluded those complaints were not medically accounted for in relation to her compensable injury.

Following the call-in examination, the WCB confirmed with the worker details of the graduated return to work (“GRTW”) plan with a planned end date and return to full duties as of June 19, 2017. On June 2, 2017, the WCB advised the worker that her wage loss benefits were suspended as she failed to participate in the GRTW program.

The worker's representative requested reconsideration of the WCB's decision to Review Office on November 10, 2017 on the basis that the worker was not medically capable of participating in a gradual return to work program and was still suffering from symptoms of post-concussion syndrome. Review Office returned the file to the WCB on November 15, 2017 for further investigation. On November 30, 2017, the WCB advised the worker that she was entitled to benefits to June 18, 2017 when the GRTW plan was to have concluded. Because the worker failed to return to work after that date, her wage loss benefits were terminated as of June 18, 2017.

On December 7, 2017, the worker's representative requested reconsideration of the November 30, 2017 WCB decision to Review Office. The worker's representative stated that the worker was still displaying clinical signs and symptoms consistent with post-concussion syndrome that prevented her from continuing the graduated return to work program initiated by the WCB.

Review Office, on January 17, 2018, determined that the worker was not entitled to further benefits beyond May 27, 2017, accepting that the worker suffered injury from a blow to her head and reported headaches and other symptoms, but was cleared for her regular duties on February 21, 2017. Review Office found that the worker's regression to total disability as of March 14, 2017 with no improvement over the following three months was not supported by objective medical findings or normal recovery patterns. Review Office determined that the worker's loss of earning capacity beyond May 27, 2017 was the result of her choice not to participate in the GRTW plan rather than her disability. Further, Review Office determined that there was no entitlement to further medical aid benefits.

The worker's representative appealed to the Appeal Commission on January 31, 2018 and a hearing took place on September 25, 2018. On November 23, 2018, the Appeal Commission determined that the worker was entitled to further benefits to July 30, 2018, the date ultimately she did return to work. The Appeal Commission held that the worker’s ongoing difficulties after February 14, 2017 through to July 30, 2018 were the result of a concussion that was causally related to her workplace injury. The question of entitlement to benefits after that date was referred back to WCB's Compensation Services for further adjudication.

As of July 30, 2018, the worker returned to full-time work in a new position with the employer.

On December 10, 2018, the worker contacted the WCB and advised that she had started to have issues related to the concussion even before receiving the Appeal Commission decision of November 23, 2018. She reported that on October 18, she was driving through a "white out" and began to have blurry vision, with moving snow and driving in the dark acting as triggers for her migraines. She saw her treating optometrist on November 6, 2018 because her vision was getting blurry and her optometrist stated she had "…standard post-concussion symptoms." She also noted that her employer had just replaced the lights at her workplace and the extra brightness was increasing her migraine symptoms. The worker reported she would be seeing her doctor the next day.

On December 12, 2018, the worker advised the WCB that she planned to return to work the next day for 4 hours, noting that bright lights caused her to feel dizzy and that this was a permanent condition since her workplace accident. She also stated that her eyes are permanently damaged from her injury, in that she never required bifocals before but has had to wear them since the accident.

The worker's treating optometrist reported to the WCB on December 20, 2018 that the worker's symptoms during the exam "…seemed classic of post concussion syndrome." The optometrist went on to note that the worker's "…visual status is not reliable and is unstable" and that she "…does not have the visual and processing skills necessary for quality of daily life or the level of work performance she had before the concussion."

The worker's family physician reported to the WCB on December 21, 2018 that both she and the treating optometrist

"…have determined that [the worker's] visual information processing problems are caused by post-concussion syndrome. This caused her inconsistent visual acuity, photophobia, difficulty with concentration, particularly visual processing, ocular-vestibular symptoms including loss of balance, and mood lability related to the combination of all her symptoms."

The physician went on to opine that the worker's current symptoms were related to her February 14, 2017 workplace accident.

On January 10, 2019, the worker saw a neuro-developmental optometrist who reported to the WCB on January 21, 2019, diagnosing binocular vision disorder unspecified, pursuit eye movement dysfunction, saccadic eye movement dysfunction and convergence excess, and recommending neuro-visual therapy for the worker.

A WCB medical advisor reviewed the worker's file on March 8, 2019 and noted that concussion symptoms should improve with the passage of time, rather than get worse. As the worker did not report a second impact head injury, the WCB medical advisor could not medically account for the onset and increase of the worker's eye-related symptoms as being causally related to her workplace accident.

On April 4, 2019, the WCB advised the worker that it determined her current and ongoing symptoms were not related to the workplace accident and she was not entitled to wage loss and medical aid benefits beyond July 29, 2018.

The worker's representative requested reconsideration of the WCB's decision to Review Office on June 5, 2019. The representative submitted that the worker's healthcare providers recommended the worker remain off work due to the severity of her post-concussion symptoms and that those symptoms were a factor in the worker missing work starting in October 2018.

Review Office determined on July 11, 2019 that the worker was not entitled to wage loss or medical aid benefits after July 29, 2018, noting that in the November 23, 2018 Appeal Commission decision, the worker was deemed to have recovered from the post-concussion syndrome as of July 30, 2018. Further, Review Office could not establish a causal relationship between the symptoms the worker began experiencing in October 2018 and the workplace accident of February 14, 2017. As such, Review Office found that the worker was not entitled to further benefits after July 29, 2018.

The worker's representative filed an appeal with the Appeal Commission on July 24, 2019. An oral hearing was arranged.

Reasons

Applicable Legislation and Policy

Under s 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. That compensation includes wage loss, medical aid and awards for permanent partial impairment, as set out in s 37 of the Act:

Compensation payable 

37 Where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable: .

(a) medical aid, as provided in section 27; 

(b) an impairment award, as provided in section 38; and 

(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.

Entitlement to wage loss benefits is addressed in s 4(2) of the Act which provides that wage loss benefits are payable for loss of earning capacity resulting from an accident. Section 39(2) of the Act sets out 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.

Section 27(1) of the Act provides the WCB with authority to provide the worker with medical aid as is "…necessary to cure and provide relief from an injury resulting from an accident."

Worker’s Position

The worker appeared at the hearing with a worker advisor. The worker advisor provided the panel with a written copy of the oral submission made on behalf of the worker. The worker provided direct evidence to the panel through questioning by the worker advisor as well as by members of the panel.

The worker’s position, as set out by the worker advisor is that the worker’s compensable post-concussive syndrome did not fully resolve by July 29, 2018; rather, the worker’s condition improved sufficient to allow for a full resumption of work after July 29, 2018 but then deteriorated in the fall due to seasonal changes and changes in her work environment. The worker advisor stated that the worker’s symptom experience after July 29, 2018 represents a continuation or recurrence of her compensable injury and the WCB is therefore responsible to provide benefits in relation to any resulting time loss and medical aid required.

The worker advisor relied in part upon the worker’s testimony given at the September 25, 2018 hearing. At that time, the worker outlined for that appeal panel the details of her symptoms and functional experience during the summer of 2018 leading up to the hearing, including her continuing migraines and dizziness. The worker advisor also relied upon printouts of screenshots of text messages sent by the worker to her manager during the period from August through December 2018 as confirmation that the worker was still dealing with migraines during that time, which the worker attributed to a high temperature work environment and to pushing herself too far.

The worker advisor noted that there is evidence that the headaches and sensitivity to noise and light pre-dated the discontinuance of benefits, demonstrating a continuity of previously accepted and compensable post-concussive symptoms. Further, the medical reports provided by the worker’s treating physician and optometrist both contain opinions that the worker’s medical presentation in late 2018 was consistent with post-concussive syndrome.

The worker advisor urged the panel to attach little weight to the WCB ophthalmologic consultant’s report from March 2019, particularly with respect to the statement that concussive symptoms “should improve with the passage of time, they should not get worse.” The worker advisor noted that the evidence here is to the contrary; in fact, the worker’s symptoms worsened over time due to work and non-work environmental factors out of her control. Further, the worker advisor noted that the WCB ophthalmologic consultant limited his comments to the worker’s documented visual findings and did not address the continued presence of a post-concussive syndrome with symptoms that included but were not limited to the visual difficulties.

In answer to questions from the worker advisor and from panel members, the worker testified that after July 2018 she continued to experience issues with her memory, which she related to her visual symptoms as well as migraines. She explained to the panel that she kept a record of her days away from work due to migraine, because that was part of her work duties, but did not document everything.

The worker testified that during the return to work period beginning in August 2018, she was learning a new job and was recovered, feeling “thrilled with how she was doing”.

The worker noted that she continues to attend regular visual therapy sessions and has done so since she resumed that therapy in January 2019. As a result, she believes, her migraines are reduced. She also noted that she is no longer sensitive to loud noise. The worker stated that she drives but still does so only while wearing sunglasses and will not drive in snow.

At present, the worker testified, she is attending school on a regular basis in a hairdressing program that she started in September 2019. She stated she is not able to do computer work and still experiences symptoms when doing theory work or reading. She noted that she has missed only a few days of school in the past year to date as a result of migraine. Symptoms are brought on, she testified, when she pushes herself, noting, “If I’m going to do something, I want to do it right.”

In sum, the worker’s position, as outlined by the worker advisor is that the worker continued to suffer the effects of her concussion, including migraine headache and visual disturbances beyond July 29, 2018. Given the effects of a concussion vary from person to person in terms of presentation and duration, and external stimuli can cause a worsening of post-concussive symptoms, the evidence here supports the conclusion that the WCB is responsible for the injurious consequences of the worker’s post-concussive symptoms, whether caused by work-related stimuli or not, beyond July 29, 2018 when the worker’s benefits were terminated.

Employer’s Position

The employer was represented in the hearing by a workplace safety and health associate who made an oral submission on behalf of the employer.

The employer’s position, as outlined by its representative, is that the worker’s symptoms and behaviour seemed to change “overnight” after the Appeal Commission’s November 2018 decision was received and that this caused the employer some suspicion in terms of the timing of the worker’s complaints. Prior to this, the worker was being successfully accommodated in the workplace and the employer was able to help her to manage symptoms by, for example, changing her work hours. But, immediately following the success on appeal, the employer noted that the worker’s symptoms began to increase and worsen, and after that point, it became difficult for the employer to accommodate the worker’s symptoms.

In sum, the employer presented to the panel its concern with respect to the timing of the worsening of the worker’s symptoms in light of the effective accommodation to December 2018, suggesting that this change may have been related to something other than the injury arising out of the compensable workplace injury of February 14, 2017.

The employer’s representative advised the panel on the day of the hearing that a witness was available to testify further as to details of the accommodation provided to the worker and on the job duties undertaken by the worker from July 30, 2018 through to December 18, 2018. The employer’s representative indicated to the panel that the witness was available if the panel felt that it needed to hear that evidence. Upon hearing the submission of the employer’s representative as to the possible testimony of that witness, the panel adjourned the hearing to consider whether the witness should be called. When the hearing reconvened, the panel advised the participants that it determined not to hear from the proposed witness.

Analysis

In order for the worker's appeal on this issue to succeed, the panel must find that the worker continued to experience a loss of earning capacity as a result of her compensable injury, or that she required medical aid to cure and provide relief from her compensable injury beyond July 29, 2018. On the basis of the evidence before us, the panel was not able to make such a finding.

The panel considered the evidence provided by the worker in the course of this hearing, as well as that she provided previously in conversations with the WCB and in the course of the September 25, 2018 hearing before the Appeal Commission. The panel also considered the medical reports and other documents found in the worker’s WCB file.

The panel found the evidence provided to the panel by the worker to be incomplete and sometimes contradictory. The worker explained to the panel that she experienced memory issues when experiencing migraine headaches, but then noted that she wrote everything down as a result. Nonetheless, the worker was not able to account for gaps and inconsistencies in her own notes and records put to her by members of the panel. As a result the panel found that she was not a reliable historian particularly in respect of the details of her return to work and continuing symptoms.

Given the memory gaps that the worker admitted to experiencing and the passage of time since her return to work in August 2018, where there are gaps or inconsistencies in the worker’s evidence with respect to the first two months of her return to work, in particular, the panel preferred to rely upon the testimony she provided to the previous Appeal Commission panel on September 25, 2018.

The evidence before the panel portrays the worker doing very well in her return to work, during the period from August through October, 2018. The success of her return to work was confirmed by the employer, as well as by the worker’s own testimony at both this hearing and the September 2018 hearing. On December 10, 2018, in a conversation recorded in a WCB memo to file of the same date, the worker advised that “…she loves working. In the summer everything was good but since it became dark and started to snow it has become worse.”

As well, the employer confirmed it was able to accommodate the worker with respect, for example, to her hours of work and the lighting in her work space through the fall of 2018.

During this period, the worker continued to experience occasional migraine headaches, as evidenced by her testimony in September 2018 and the copies of text message screenshots of conversations between the worker and the employer, submitted by the worker advisor. The panel noted that there is no evidence of any issues with the worker’s vision during this period, until early November when the worker raised the concern with her treating professionals. The panel noted that this was more than three months following the worker’s return to work.

The panel noted the worker’s testimony on September 25, 2018 that:

“I feel like I am like 90, 95 percent recovered. Most of my personality is back. I can add, I can problem-solve, I am happy, I — but I still do have issues once in a while with my wording, depending on the situation, if I’m nervous or if I’m tired.”

The panel also noted the testimony from a witness who worked with the worker both before and after the injury, provided on September 25, 2018 as follows:

Q And how would you describe [the worker] now at the meetings, compared to your observations of her following her accident? 

A She’s starting to look like the same [person] now, giving her input and talking, and just acting herself, happy, where before you could just see it in her face, that she was struggling. But she’s starting to finally resemble the same [person] that I knew before the accident.

The panel finds that this evidence supports that the worker had recovered from the effects of the February 14, 2017 compensable injury by July 29, 2018. While she continued to report occasional migraines after that date, the evidence on the whole points us to the conclusion that her symptoms were largely resolved and manageable, such that she was able to succeed in her return to work.

In the December 10, 2018 WCB memo to file, the worker is noted to have stated that she went to see the optometrist on November 6, 2018 after the incident she reported in October 2018, when she was driving through a “white-out” and began to experience blurry vision. She noted the moving snow and driving in the dark both act as migraine triggers for her. She also noted that newly installed bright overhead lighting at work also triggered her headache.

The worker’s treating optometrist, in a report dated December 20, 2018 stated that the worker “…has been a regular patient of mine since 2011, with visits to me for annual eye exams. Until her most recent visit on November 6, 2018, she has had no concerning symptoms or ocular health problems.” The optometrist does note however that after the worker’s head injury on February 14, 2017, the worker received her ocular health care elsewhere as the optometrist was away on a leave.

The panel noted that there is no evidence of any further injury or event that could have precipitated a recurrence of the visual symptoms previously found to be related to the worker’s post-concussive syndrome.

The panel also reviewed the chart notes of the worker’s treating physician provided by the worker advisor for the period of July 17, 2018 through September 13, 2019. The panel noted that in July 2018, the worker’s physician was treating her for non-compensable issues, entirely unrelated to the post-concussion symptoms that were previously a concern. On July 23, 2018, the worker’s physician noted that the worker could return to work as of July 23, 2018 with accommodation related to her current non-compensable illness, and would be able to return to full duties as of July 30, 2018. The chart notes indicate that the worker next saw her physician in respect of a sport-related injury. There are no notes thereafter until November 2, 2018 when the worker next saw her physician and reported “weird” vision, headaches not as severe and migraines less frequent. On November 16, 2018 the worker again saw her physician regarding a number of non-compensable concerns. At that time the worker reported that she had seen her optometrist and would restart the eye exercises, because she was having trouble focusing. When the worker saw her physician on November 30, 2018 she reported that headaches were returning and were triggered by driving in snowstorms, driving in the dark, changes in weather, light and loud environments.

The worker’s treating physician, in a December 3, 2018 Doctor Progress Report provided to the WCB, outlines the worker’s complaints including recurrence of ocular/vestibular symptoms, poor concentration, mood lability, visual focus dysfunction, migraine and light sensitivity. She noted the worker’s difficulty in providing a history and in finding words. No other clinical findings are reported, but the physician advises the worker to remain off work “for now” and to wear sunglasses even indoors, avoid driving in the dark or in snow conditions, limit screen time, avoid noisy environments and resume visual therapy.

The physician chart notes for December 11, 2018 indicated the worker reported she was feeling better and her headaches were more manageable and less severe. At that time she noted she felt ready to return to work with accommodation in terms of weather/brightness. Also noted in the chart notes from that visit was that the worker was upset with the WCB case manager.

The worker’s treating physician concluded that, as outlined in her narrative report to the WCB dated December 21, 2018, on the basis of the worker’s reported symptoms, the worker’s:

“…visual information processing problems are caused by post-concussion syndrome. This has caused her inconsistent visual acuity, photophobia, difficulty with concentration, particularly visual processing, ocular-vestibular symptoms including loss of balance, and mood lability related to the combination of all her symptoms.”

The worker’s optometrist agreed with the conclusion reached, stating in her December 20, 2018 report that the worker’s “…symptoms during our exam seemed classic of post concussion syndrome.” Further she noted that the worker’s visual status “…is not reliable and is unstable….At this time, she does not have the visual and processing skills necessary for quality of daily life or the level of work performance she had before the concussion”. Both recommend the worker resume visual therapy as a result.

The WCB ophthalmologic consultant in January 2019 reviewed the worker’s file including the most recent reports from the worker’s treating physician and optometrist as well as the neuro-developmental optometric vision evaluation report of January 21, 2019. On the basis of this review, the WCB ophthalmologic consultant concluded that the worker’s current presentation (at that time) was not accounted for as being related to the February 2017 head injury and resulting concussion. The WCB consultant noted that the reported onset of the stated visual symptoms occurred after the worker had returned to work for more than 2.5 months, apparently triggered by driving in a snowstorm. The consultant concluded that the eye related symptoms reported by the worker could not be medically accounted for in relation to the February 14, 2017 injury.

The panel is persuaded by the conclusions of the WCB ophthalmologic consultant. Considering that opinion, and in light of the worker’s successful return to work as of July 30, 2018 and the subsequent medical reporting, the panel is unable to draw a causal link between the compensable injury of February 14, 2017 and the worker’s inability to return to work in mid-December 2018 after more than 4 months of a successful return to work. While the panel does not dispute that the worker experienced vision-related symptoms beginning in November 2018, it is unable to tie these to the concussive injury that the worker’s treating physician stated she had recovered from by late July 2018, and that worker herself stated she was more than 90% recovered from in September 2018.

Having considered the evidence of the worker’s recovery and return to work after July 29, 2018 as well as the subsequent medical evidence and reporting, the panel concluded, on a balance of probabilities, that the worker’s inability to return to work after mid-December 2018 is not accounted for as a result of the compensable injury of February 14, 2017.

The evidence does not support, on a balance of probabilities that the cause of the worker’s loss of earning capacity or need for medical aid was the result of the February 14, 2017 compensable injury. The worker is therefore not entitled to wage loss and medical aid benefits after July 29, 2018.

The appeal is dismissed.

Panel Members

K. Dyck, Presiding Officer
P. Challoner, Commissioner
R. Ripley, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 16th day of April, 2020

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