The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to wage loss benefits beyond October 31, 2017 or medical aid benefits beyond December 28, 2017. A hearing was held on February 27, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after October 31, 2017; and

Whether or not the worker is entitled to medical aid benefits after December 28, 2017.

Decision

That the worker is not entitled to wage loss benefits after October 31, 2017; and

That the worker is not entitled to medical aid benefits after December 28, 2017.

Background

On November 6, 2017, the worker reported to the WCB that he injured his head and neck in an incident at work on October 27, 2017. He described the incident as:

…we sometimes have a truck to take guys back & forth to the worksite. We were just leaving the jobsite & heading to our work trailer going home for the day. I was in the passenger seat behind the driver. We were going over a set of rough train tracks & I hit my head up against the upper door frame as we went over the tracks. I didn’t think anything of it at the time. I was wearing a hard hat. I got to my vehicle and started to go home.

I got home. Everything was fine. Woke up Saturday Oct. 28, 2017 felt a little funny but since we work 10 hr days it's not uncommon for me to feel tired. By Sat evening & through the night I started having really bad dizzy spells & headache to the point of having a couple of vertigo attacks. Went through the weekend, had a few more dizzy spells.

A note on file indicates that the worker also advised that he was not wearing a seatbelt at the time of the incident.

The worker further reported that he went to work on October 30, 2017 and advised his co-workers he was not feeling well because of the incident on October 27, 2017. On October 31, 2017, he "…worked a couple of hours but was feeling sick & dizzy again." He left work and went home, then sought treatment from his chiropractor. When he returned to work on November 1, 2017, he had a different job with lighter duties and was able to sit and work the whole day. On November 2, 2017, approximately 15 minutes into his shift, he "…passed out & woke up on the ground to people calling my name & was taken by ambulance" to a local hospital.

On November 8, 2017, the worker's treating chiropractor provided an initial report to the WCB referring to his examination of the worker on October 31, 2017. The chiropractor noted that the worker reported neck pain, headaches and extreme dizziness when changing positions and diagnosed the worker with "cervical subluxation with concussion." The chiropractor noted that the worker "…worked Oct 30 in discomfort, could not work Oct 31, RTW [returned to work] light duties Nov 1, off again Nov 2 + 3, off Nov 6, RTW lighter duties 7."

A CT scan was performed November 2, 2017, and in the report of that scan it was noted that the worker had a clinical history of syncope and vertigo. The stated impression was that "No significant intracranial abnormality was seen." The worker's diagnosis on discharge from the hospital on November 2, 2017 was "BPV – Benign paroxysmal vertigo," and it was recommended that he remain off work November 2 and 3, 2017.

The worker returned to work on November 7, 2017, but was sent back to the local hospital for further assessment. The emergency room physician noted at that time that he thought the worker had a concussion and recommended he follow-up with his family physician and he stay off work the rest of that week.

On November 9, 2017, the worker saw his family physician, who noted that the worker reported he was a "passenger in the truck behind driver and went over a very rough section of train track and hit his head against the door frame and glass. Wearing his hard hat." The worker further reported that he went home and "…started getting dizzy, headaches, vertigo." He said he was sent to emergency twice and was diagnosed with a concussion by the emergency room physician on the second visit. The treating family physician did not provide a diagnosis, but recommended the worker not return to work for two weeks and referred him to a neurologist.

On November 9, 2017, the employer provided a letter setting out the results of their investigation with respect to the workplace incident. The employer advised that the worker had not reported his workplace injury until November 7, 2017 and had signed off on "100% safe cards" for each of October 27 and 30, and November 1 and 2, 2017. The employer also provided the WCB with written statements from two co-workers who were in the truck with the worker on October 27, 2017 and who confirmed they were not aware any such incident occurred. The employer further noted that the worker had disclosed a past history of vertigo. On November 22, 2017, the WCB spoke to the co-workers who were in the vehicle with the worker on October 27, 2017, neither of whom was able to verify an incident occurred.

On November 20, 2017, the WCB's Compensation Services advised the worker that his claim was accepted, but he was not entitled to benefits. Compensation Services stated that they were unable to relate the worker's ongoing difficulties to a workplace incident on October 27, 2017, given the worker's delay in reporting the incident despite the employer's strict incident reporting procedures, his delay in seeking medical treatment, and the absence of confirming witnesses to the injury.

On April 9, 2018, a worker advisor representing the worker requested that Review Office reconsider Compensation Services' decision. The worker's representative submitted that the worker sustained a head/neck injury while travelling in a work truck on October 27, 2017, and required time off and medical treatment to recover, and that he should therefore be entitled to benefits.

On May 29, 2018, Review Office determined that the worker sustained a minor head and neck injury as a result of the October 27, 2017 workplace incident, and was entitled to benefits associated with his injuries. Review Office returned the file to Compensation Services to determine the extent of benefits payable.

On June 1, 2018, the worker's file was reviewed by a WCB medical advisor, who opined that the medical evidence on file did not substantiate that the worker sustained a concussion related to the workplace events of October 27, 2017. The medical advisor opined that the reported symptoms were accounted for by the reported diagnosis of BPV, which would be unrelated to effects of the workplace incident. The medical advisor noted that if the worker had suffered an injury to the vestibular or balance system of the brain or inner ear, "immediate onset of symptoms would be anticipated rather than delayed onset."

On June 5, 2018, Compensation Services noted that Review Office had determined his claim was acceptable for a minor head and neck injury. Compensation Services advised the worker that they accepted responsibility for wage loss on October 31, 2017 to attend an initial assessment with his chiropractor. Any time loss after October 31, 2017, however, was not accepted as it was not considered causally related to the October 27, 2017 injury. Compensation Services advised that the cost of chiropractic treatment between October 27 and December 28, 2017 would also be accepted as being related to the accepted diagnosis of a minor head/neck injury. Any costs associated with the worker's diagnosis of a concussion, however, would not be accepted.

On July 26, 2018, the worker submitted further information, including letters in support of his claim from his treating family physician and chiropractor, and requested that Compensation Services reconsider their decision. Also included with his request for reconsideration was a May 14, 2018 report from a neurologist, who provided as diagnoses/conclusions: "Head injury symptoms were potentially related to whiplash injury with cervicogenic headaches, cervicogenic vertigo (in addition to possible Benign Positional Paroxysmal Vertigo – BPPV)." On August 9, 2018, Compensation Services advised the worker that the new information had been reviewed, but their June 5, 2018 decision remained unchanged.

On August 23, 2018, the worker requested that Review Office reconsider Compensation Services' decisions. The worker noted that all of his treating healthcare providers related his symptoms, time loss and need for medical treatment to the effects of his head and neck injury sustained at work on October 27, 2017.

On October 31, 2018, Review Office determined that the worker was not entitled to wage loss benefits beyond October 31, 2017 or medical aid benefits beyond December 28, 2017. Review Office noted their previous decision that the worker's claim was accepted as a minor neck and head injury, and the worker's reports of a concussion and vertigo were not accepted in relation to the compensable incident. Review Office accepted the WCB's coverage of the worker's time loss for October 31, 2017.

Review Office found that the recommendations from the worker's healthcare providers that he remain off work were not due to the compensable diagnosis, but to diagnoses of a concussion and vertigo, which were not accepted by the WCB as related to the workplace incident. Any benefits related to those diagnoses were therefore not accepted by Review Office.

Review Office further noted that coverage for chiropractic treatment was based on normal recovery norms, taking into account the injury, time, duration and treatment itself. Review Office advised that the request for chiropractic treatment beyond the approved period of eight weeks, ending December 28, 2017, could not be explained by the acceptable compensable injuries, and as such, the worker would not be entitled to medical aid benefits beyond that date.

On June 5, 2019, the worker's representative appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation

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.

Worker's Position

The worker was represented by a worker advisor, who provided a written submission in advance of the hearing and made an oral presentation to the panel, a written copy of which was also provided. The worker responded to questions from his representative and from the panel.

The worker's position was that he is entitled to wage loss benefits after October 31, 2017 and medical aid benefits after December 28, 2017 as a result of his workplace incident and injury.

The worker's representative submitted that the worker was seeking wage loss benefits for lost wages during the month of November 2017 only, when he was directed to refrain from all work until his return to work on November 27, 2017. The worker was also seeking reimbursement for chiropractic treatments after December 28, 2017 for the compensable symptoms of vertigo, in the amount of $150.00.

Referring to early medical reports on file, the worker's representative submitted that the worker was medically directed to stay off work as a direct result of his workplace incident, and as such, a loss of earning capacity existed beyond October 31, 2017. The worker's representative submitted that there is no doubt the worker suffered a mild head injury, which caused the onset of his difficulties and symptoms. The hit to the worker's head, even with a hard hat on, was sufficient to have caused the worker's onset of dizziness and confirmed extreme vertigo, and the medical supported that the symptoms of vertigo and the diagnosis of BPV were causally related to the workplace incident.

The worker's representative noted that the WCB's medical advisor opined on June 1, 2018 that the worker's reported symptoms were accounted for by the reported diagnosis of BPV. While the medical advisor further opined that the presence of BPV was not recognized to be related to head injuries, the representative disagreed, and pointed to a medical information sheet which confirmed that when a cause is determined, BPV is often associated with a minor blow to the head. The representative submitted that the worker's description of the incident and the onset of dizziness the next day and after was associated with a minor head injury as reported to the WCB, and as documented in the November 2, 2017 hospital report. The hospital report provided the diagnosis of BPV and was in close proximity to the incident.

The worker's representative noted that on November 20, 2017, Compensation Services disallowed all benefits related to the symptoms of dizziness or vertigo. Six months later, in their May 29, 2018 decision, Review Office determined that there was entitlement to benefits for these symptoms for a minor neck and head injury, but no timeframe was identified. Following that decision, Compensation Services accepted chiropractic benefits for an eight-week period, to December 28, 2017. During this period of time, however, the WCB had disallowed any benefits, and the worker had not been able to get the proper treatment.

The worker's representative submitted that in fairness, since the WCB accepted eight weeks of chiropractic benefits, those eight weeks should be applied to five sessions in March and April 2018 when the worker was able to attend chiropractic treatment for his work-related injuries. The representative noted that the Act and WCB policy do not limit medical aid to a specific timeline, and the worker should be reimbursed for these five sessions of chiropractic treatments which provided relief from the effects of his workplace injuries.

In response to questions at the hearing, the worker also described the incident. He confirmed that the truck was not travelling fast when it went over the tracks. He said it was not a violent movement, but was enough that it threw him sideways and he "whacked" his head against the truck window and door pillar and jarred his neck. The worker noted that he hit his head all the time in his work, while doing basically anything, but this was different in that it was sudden. The worker said he did not feel anything at the time and did not remember having any symptoms that night.

With respect to previous episodes of vertigo the worker stated that he had hit his head on a girder about 15 years earlier, but nothing came of it. On another occasion about five years later, when it was very hot, he had been going in and out of an air conditioned building and this had triggered his vertigo. He sought treatment and after two chiropractic sessions, his symptoms resolved and he had not had symptoms since then.

The worker stated that the five chiropractic treatments he received in March and April 2018 helped with his symptoms. He said that still has headaches, but they are nowhere as bad as they were. He also still has the odd dizziness, but he can function and drive again.

Employer's Position

The employer was represented by an advocate, who participated in the hearing by videoconference.

The employer's position was that the worker should not be entitled to wage loss benefits after October 31, 2017 or medical benefits after December 28, 2017.

The employer's advocate noted that the worker reported having sustained a moderate to severe brain injury as a result of a bump to the head while travelling approximately seven to ten kilometers in a truck and wearing a hardhat. The advocate submitted, however, that the worker reported no symptoms at the time of the incident and continued to work for the remainder of the day. He returned to work the next work day, Monday, October 30, 2017 and worked a ten-hour shift. On October 31, 2017 he reported to the site for three hours, then left work saying he felt ill. He worked another ten hours on November 1, then a few hours into his shift on November 2, 2017, he had an incident where paramedics had to provide treatment and transport him to hospital.

The employer's advocate stated that in their view, the WCB applied the "benefit of the doubt" in accepting the worker's claim and offering treatment for a minor injury that occurred on October 27, 2017. She submitted that there was a lot of evidence to dispute the claim. She noted that from October 27 to November 2, 2017, the worker reported nothing on the "100% safe cards" which were to be completed twice a day, the worker did not require any medical attention, witness statements from others who were in the vehicle indicated they were not even aware an incident occurred, there did not appear to be a definitive diagnosis on the file, and statements supported that the worker had a diagnosis of vertigo prior to the incident.

The employer's advocate submitted that this was a safety sensitive site and if there was a report of dizziness and headaches on October 30, 2017 as the worker suggested, the employer's process was for the person to be assessed immediately. She stated that the employer was not disputing the worker suffered an episode of vertigo on November 2, 2017. What they disputed was that this was caused by the October 27, 2017 incident. The advocate submitted that any number of external factors could have caused this episode, and just because the medical information from November 2, 2017 supported treatment for symptoms of reported dizziness, that did not mean the dizziness was the result of the workplace incident. All it showed was that the worker experienced an episode of vertigo which required treatment, and as had occurred in the past.

Analysis

Issue 1: Whether or not the worker is entitled to wage loss benefits after October 31, 2017.

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity beyond October 31, 2017 as a result of his October 27, 2017 workplace incident. The panel is unable to make that finding.

The worker has an accepted claim for a minor head and neck injury as a result of the October 27, 2017 workplace incident. The panel accepts that diagnosis.

The worker's representative confirmed at the hearing that they were relying on the diagnosis of BPV. The panel accepts that the evidence indicates the worker experienced an episode of vertigo on November 2, 2017, but is unable to find, based on the evidence which is before us, that the diagnosis of BPV or vertigo is causally related to the October 27, 2017 incident.

In arriving at that conclusion, the panel places weight on the evidence that there was no immediate onset of symptoms at the time of the incident. The worker stated in his Worker Incident Report to the WCB that he hit his head, but did not "think anything of it at the time." At the hearing, he confirmed that he did not feel anything at the time of the incident and did not remember having any symptoms that night. The worker described feeling some symptoms over the weekend, but returned to work on October 30, 2017 and worked a full 10 hours that day.

The panel also places weight on the evidence of the two co-workers who were in the vehicle with the worker on October 27, 2017 and indicated they were not aware the incident occurred. In addition, the panel notes that while the worker stated that he reported the incident to the employer or to co-workers when he returned to work on October 30, 2017, he did not report the injury on the "100% safe cards" which he signed on October 30, October 31 and November 1, 2017, or ask to fill out a incident report. The worker also did not report his injury to the WCB until November 6, 2017, although he acknowledged at the hearing that he had had several previous WCB claims and knew how to report an injury.

The panel notes that the worker worked only part of the day on October 31, then left and went to see his chiropractor, who diagnosed him with "cervical subluxation with concussion." The chiropractor did not, however, take him off work. The worker returned to work on November 1, 2017 and worked a full day.

The panel recognizes that a possible concussion was queried or diagnosed at various times in the course of the claim. The panel considered a diagnosis of concussion, but was unable to accept that diagnosis as being causally related to the workplace incident. The panel is satisfied that the mechanism of injury was not of sufficient force as would reasonably be expected to lead to an immediate brain injury. Further, the evidence shows the worker did not lose consciousness or show symptoms of an alteration of mental state or impairment of neurologic function immediately after the accident.

The panel is unable to place weight on the May 14, 2018 report from the worker's neurologist. The panel notes that the neurologist did not see the worker until more than six months after the workplace incident, and his report is based on the history as provided by the worker, including that the worker "…was jolted around the car where his head went side to side and ended up hitting the window on the inside," which is not consistent with previous reports of the incident. Further, the diagnoses/conclusions provided by the neurologist were speculative, indicating that the worker's symptoms "…were potentially related to whiplash injury with cervicogenic headaches, cervicogenic vertigo (in addition to possible Benign Positional Paroxysmal Vertigo – BPPV)."

In conclusion, the panel is unable to find, on a balance of probabilities, that the worker's ongoing loss of earning capacity beyond October 31, 2017 was related to his October 27, 2017 workplace incident or injuries arising from that incident.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer a loss of earning capacity beyond October 31, 2017 as a result of his October 27, 2017 workplace incident. The worker is therefore not entitled to wage loss benefits after October 31, 2017.

The worker's appeal on this issue is dismissed.

Issue 2: Whether or not the worker is entitled to medical aid benefits after December 28, 2017.

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker required medical aid beyond December 28, 2017 as a result of his compensable injury. The panel is unable to make that finding.

The worker has indicated that after he was advised that he was not entitled to benefits in November 2017, he was unable to seek further treatment due to financial constraints. Once he was in a position to do so financially, he attended further chiropractic treatment and was seeking to be reimbursed for the five further chiropractic sessions which he attended in March and April 2018, noting that the sessions were helpful in resolving his ongoing symptoms.

The panel acknowledges the worker's position, and his concern that he could not take full advantage of the benefits he was awarded as the benefit period had passed by the time he became aware of his entitlement to those benefits. The panel is satisfied, however, that the worker's compensable minor head and neck injury would have resolved by March 2018, whether or not he had received treatment for his injury. The panel therefore finds that the chiropractic treatment which the worker received in March and April 2018 was not related to his compensable injury arising out of the October 27, 2017 incident, and was not required to cure and provide relief from the worker's compensable injury arising out of that incident.

The panel therefore finds, on a balance of probabilities, that the worker did not require medical aid beyond December 28, 2017 as a result of his compensable injury, and is not entitled to medical aid benefits after that date.

The worker's appeal on this issue is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
R. Ripley, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 27th day of April, 2020