Decision #53/20 - Type: Workers Compensation
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A hearing was held on March 5, 2020 to consider the appeal.
Whether or not the claim is acceptable.
The claim is not acceptable.
The worker filed a Worker Incident Report with the WCB on September 1, 2016 indicating that he suffered from vertigo as a result of an incident that occurred while performing his job duties on June 9, 2015. The worker reported that he did not have any issues directly after the incident; however, he attended at a local emergency department on June 22, 2015 with "…bad vertigo, nausea and vomiting for the last three days." He reported he was diagnosed with a gastrointestinal virus and discharged. On April 12, 2016, the worker again sought medical treatment due to vertigo, nausea and vomiting and was referred to an Ear, Nose and Throat (ENT) specialist. The worker reported two further incidents of vertigo, nausea and vomiting on June 15, 2016 and August 20 and 21, 2016. He stated he was advised on August 22, 2016 that the vertigo was related to his job duties.
The WCB requested and received a copy of the June 22, 2015 report from the emergency department and the April 12, 2016 report from the worker's treating physician confirming the diagnoses of viral infection and vertigo, respectively.
In a discussion with the WCB on September 23, 2016, the worker advised that he would see an ENT specialist on September 26, 2016. He also advised he had been attending for physiotherapy with a therapist who specialized in vestibular therapy based on the August 22, 2016 diagnosis of benign positional vertigo (BPV) and the treatment helped with his symptoms. The ENT specialist examined the worker on September 26, 2016 and reported that the worker’s history was consistent with positional vertigo possibly related to inner ear barotrauma.
On October 19, 2016, the worker provided the WCB with a log of his job duties he believed related to his difficulties. On November 9, 2016, the worker advised the WCB that his symptoms had increased and he had to miss work as a result. Due to the increase in symptoms, the worker's treating ENT specialist requested an MRI study on November 14, 2016. The study conducted on December 7, 2016 indicated normal findings. At a follow-up appointment on December 12, 2016, the ENT specialist noted the worker's "vertigo markedly improved on exercises" and that the worker reported being "80% better".
On March 6, 2017, the worker's file was reviewed by a WCB ENT consultant who requested WCB obtain additional from the worker's treating healthcare providers. After that information was received, on May 28, 2017, the WCB ENT consultant again reviewed the file and noted that the worker's physiotherapist reported the worker suffered from recurrent episodes of benign paroxysmal positional vertigo (BPPV) but could not supply a specific cause for the worker's symptoms. Further, investigation to determine whether the worker had another health concern that may be causing his symptoms resulted in negative findings. The WCB ENT consultant noted that the worker did not report any vertigo symptoms shortly after his job duties and opined that the vertigo could not be related to those duties. On May 30, 2017, the worker was advised by the WCB that his claim was not acceptable as a relationship could not be established between his diagnosis and his job duties.
The employer contacted the WCB on May 24, 2018 to advise that they would be submitting further medical information in support of the worker's claim for reconsideration by the WCB. On June 22, 2018, the employer submitted a report dated April 17, 2018 from the worker's treating ENT specialist opining that the worker's ongoing vertigo and vestibular dysfunction were related to "…various pressure changes…" the worker was exposed to each time he performed or attempted to perform his job duties. Further, the specialist noted that since the worker had been restricted from performing those duties, "his overall symptoms have improved." Included with the ENT specialist's report were research study reports regarding the vestibular effects related to the worker's job duties. A copy of the worker's vestibular test results from February 16, 2018 were requested and on October 14, 2018, the WCB ENT specialist opined, after a review of the worker's file and the additional medical information received, that the information did not support the worker suffered either a middle or inner ear barotrauma in relation to his job duties and accordingly, his intermittent vertigo could not be medically related. On October 16, 2018, the worker was advised there was no change to the earlier decision that his claim was not acceptable.
On April 15, 2019, the worker and the employer jointly requested reconsideration of the WCB's decision to Review Office. Both the worker and the employer noted disagreement with the WCB ENT specialist's opinion and noted that more weight should be placed on the worker's treating ENT specialist's research and opinion.
Review Office, on May 16, 2019, determined the worker's claim was not acceptable. Review Office compared the dates of the worker's job duties as provided in his log to the onset of his symptoms and could not find any correlation between the performance of the worker's job duties and the development of his vertigo symptoms. Review Office found that if the worker's symptoms were related to his job duties, the worker would have experienced those symptoms shortly after performing those duties. Further, Review Office relied upon the WCB ENT specialist's opinion that the medical information did not support a relationship between the worker's vertigo symptoms and his job duties.
The employer filed an appeal with the Appeal Commission on behalf of the worker on May 29, 2019. An oral hearing was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations under that Act and the policies established by the WCB's Board of Directors.
The Act sets out the definition of an accident in s 1(1) as a chance event occasioned by a physical or natural cause, as a result of which a worker is injured. The definition includes events arising out of and in the course of employment as well as occupational disease. When it is established that a worker has been injured as a result of an accident at work, the worker is entitled to benefits under s 4(1) of the Act.
The worker appeared on his own behalf in the appeal. A representative of the worker’s union attended the hearing as an observer. With the worker’s consent, the employer’s workers compensation coordinator made submissions on behalf of the worker.
The worker’s position, as outlined by the employer’s workers compensation coordinator is that the claim is acceptable as the evidence establishes that as a result of an incident that occurred arising out of and in the course of the worker’s employment, he was injured. The facts establish that an accident occurred as defined by the Act and the claim should therefore be accepted.
The worker described to the panel that his job duties include scuba diving from time to time. In order to maintain his certification, the worker must complete specified dive training from time to time, in addition to any dives required as part of his job duties. On June 9, 2015, the worker was participating in such a training event, undertaking a deep dive with a junior, less experienced partner. He described how shortly after their descent, at approximately 83 feet below the surface, his partner signaled to him that he needed to ascend and needed assistance. The worker took hold of his partner and helped him to ascend. In the process, the worker testified that he was not able to monitor and properly control the speed of the ascent. On arriving at the surface, a boat picked up both the worker and his partner. His partner was treated by a diver assistance physician for the “bends” but the worker noted no immediate effects from the rapid ascent.
The worker described to the panel the symptoms that he experienced beginning June 19, 2015. On waking, he felt the room spinning and experienced nauseousness and vomiting, as well as diarrhea and headache. After several days of these symptoms, the worker sought medical treatment on the morning of June 22, 2015 at the emergency department of a nearby hospital. The worker was diagnosed with a viral illness based upon his reported symptoms. He was told to return to hospital if symptoms of headache and dizziness increased.
After June 22, 2015, the worker testified that he slowly got better, but was unsteady on his feet and had some headache for awhile. His next dive was June 30, 2015 and from that date until April 8, 2016, he did not experience any further symptoms. After diving in an indoor pool on April 8, the worker again began to experience symptoms he identified as vertigo, nausea and vomiting. He saw a doctor on April 12, 2016 who submitted a Doctor First Report that diagnosed vertigo, noting it occurred after diving.
The worker testified that he next experienced these symptoms from June 11–13, 2016. He explained he had conducted a deep dive on June 8, 2016.
On July 8 and 9, 2016, the worker testified he undertook four more dives, including another deep dive on July 9. He next experienced symptoms on August 20, 2016 which led him to seek treatment in the emergency department on August 21, 2016. The Emergency Treatment Record from that visit sets out the diagnosis of “vertigo – likely BPV”.
The worker testified he was then referred to a physiotherapist with a certification in vestibular physiotherapy. The physiotherapist, according to the worker’s testimony, believed that his recurrent BPV was related to his diving.
In the fall of 2016, the worker was also seen by a physician with a specialty in otolaryngology (“ENT specialist”). The worker testified that this physician also believed that the symptoms of vertigo were related to his diving.
The employer’s workers compensation coordinator submitted for the panel’s consideration a summary of the worker's dive log for the period of June 8, 2015 through November 30, 2016 with corresponding symptoms noted as they appeared. He also referenced the research studies already on file and noted that these suggested that vestibular effects can occur in some cases a few days after diving.
The workers compensation coordinator urged the panel to find that the worker’s symptoms were caused by and the result of his occupational activities, suggesting that the panel could find that the worker was injured as a result of an occupational disease or as a result of the incident that occurred on June 9, 2015. He noted that the symptoms were gone four months after the worker’s last dive and that this timing suggests a causal relationship.
Further, he noted that while BPV could arise idiopathically, as a result of head trauma or in aging patients, it could also be related to barotrauma. In support of this view, the worker’s compensation coordinator pointed the panel to the opinion of the treating ENT specialist.
In sum, the worker’s position is that his BPV is related to and the result of the diving he undertook in the course of his job duties, whether as a result of the specific events of June 9, 2015 or more generally as an occupational disease arising out of his ongoing diving duties.
The employer was represented in the hearing by a workers compensation coordinator. The employer brought the appeal on behalf of the worker and the workers compensation coordinator offered submissions on behalf of the worker, as outlined above.
The issue for determination by the panel is whether or not the claim is acceptable. In order to find that the claim is acceptable the panel must find that the worker was injured as a result of an accident that occurred arising out of and in the course of his employment, or as a result of an occupational disease. The panel was unable to make such findings for the reasons that follow.
The panel noted that the objective findings and medical opinions on file were equivocal in terms of the question of causation. On initial assessment on June 22, 2015, the worker was diagnosed with a viral illness. When symptoms next appeared one year later, the worker was diagnosed with vertigo. The report from the April 12, 2016 physician visit indicates the worker’s report of vertigo after diving, but does not address the question of causation other than to note that symptoms appeared “on head movement”. The Emergency Treatment Record of August 21, 2016 also diagnosed vertigo, “likely BPV”.
When the worker was treated with vestibular physiotherapy in fall 2016, the physiotherapist diagnosed benign paroxysmal positional vertigo (BPPV). In her report of April 19, 2017, she noted that there is “…no method to determine causality for BPPV. It is documented that BPPV can follow head trauma, motor vehicle accidents, a vestibular neuritis or labyrinth it is, but in the majority of cases, there is no way to determine the cause.” She also noted that selected case reports outline the occurrence of BPPV following pressure changes experienced during diving.
The treating ENT specialist reported on October 5, 2016 that the examination of the worker revealed no pathology, but that the history was in keeping with positional vertigo that “…is possibly likely [sic] related to barotrauma of the inner ear.” On November 14, 2016, the ENT specialist reported that the worker’s symptoms had worsened “in the last couple of months” and again stated his belief that the symptoms were related to barotrauma of the inner ear related to diving. In a further report dated April 17, 2018, the treating ENT specialist outlined the worker’s history and provided the following opinion:
“My initial opinion is that recurrent diving with the various pressure changes did cause some degree of sensitivity and inner ear abnormality which had been progressive over time, and as [he] continued to dive or attempted to dive through some of this activity exacerbated his symptomatology. Since he has been restricted from this activity, his overall symptoms have improved. I have suggested to [him] that returning to this activity is likely not in his best interest and likely will exacerbate his condition.
I am aware that the time frame is slightly prolonged from the first event of vestibular dysfunction from his diving but likely [his] continu[ed] to drive this issue with continued dives going forward.
It is my opinion that likely the continued barotrauma exposure had some way of continuing his symptoms during the time frame of his illness.”
The medical reporting on file was reviewed by a WCB ENT consultant who provided opinions on March 6 and May 28, 2017, and on October 14, 2018. The WCB ENT consultant noted on March 6, 2017 that the worker “…never had any vertigo during or immediately after diving” and stated that “If his vertigo was caused by barotrauma during diving, I would expect that his symptoms of vertigo would occur during diving or shortly after the dive, not weeks and months after.” On May 28, 2017, the WCB ENT consultant again noted that the worker did not report vertigo during or shortly after dives and concluded that, therefore “…we cannot conclude that diving caused his vertigo.” The WCB ENT consultant reviewed the April 17, 2018 report of the treating ENT specialist noting that there was no evidence to support the conclusion that the worker had barotrauma secondary to his diving. The WCB ENT consultant concluded that the medical information on file did not support that the worker had clinical features of either inner or middle ear barotrauma. Further, the WCB ENT consultant reviewed the research studies submitted and noted that one was not relevant to the worker’s reported experience, and the other did not support a conclusion that the worker experienced barotrauma as a result of diving given
that there is a lack of evidence of long-term vestibular disorder and the delay in onset of the worker’s symptoms. The WCB ENT consultant concluded that the worker’s intermittent vertigo was not medically accounted for in relation to his diving experiences.
In order to find that the worker’s symptoms are related to his occupational activities or to the specific incident of June 9, 2015, the panel would have to find that the evidence leads, more likely than not, to the conclusion that the worker’s complaints and symptoms arose out of and were caused by the workplace incident and/or activities. The evidence here does not lead us to that conclusion.
The panel finds that the medical support for the worker’s position that his BPV was related to his occupational diving is weak. Some of the medical reporting suggests a possible relationship between the symptoms and the worker’s diving, but the findings do not point us to a clear causal relationship. Furthermore, as outlined by the WCB ENT consultant, even the possible explanations are not supported by the medical findings.
The panel noted as well that there are significant gaps in time between the worker’s dives and onset of symptoms, and gaps in time between incidents of presentation of symptoms. For example, the evidence establishes first onset of symptoms some 10 days after the June 9, 2015 emergency ascent, but then there are no further symptoms until some 10 months later, although the worker logged at least 10 more dives in the intervening period. Furthermore, the symptoms did not arise on or after each incidence of diving after the initial appearance in June 2015. A satisfactory explanation for these gaps has not been offered.
The panel acknowledges that a significant incident occurred on June 9, 2015 arising out of and in the course of the worker’s employment, as the worker testified, but finds that the evidence does not support a determination that the worker was injured as a result. Further, the evidence does not support a finding that the worker’s diagnosis of BPV arose out of his continuing diving activities, as an occupational disease, as the employer’s workers compensation coordinator posited.
While it is clear that the worker suffered positional vertigo beginning in 2015 and continuing from time to time until these symptoms resolved in early 2018, there is less clarity about the cause for that diagnosis. On the basis of the evidence before us, we are unable to conclude, on the standard of a balance of probabilities, that the diagnosis is the result of a chance event arising out of and in the course of the worker’s employment, nor that the diagnosis is the result of an occupational disease related to the worker’s diving duties in particular.
The panel therefore determines that the claim is not acceptable. The appeal is dismissed.
K. Dyck, Presiding Officer
P. Challoner, Commissioner
P. Kraychuk, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 28th day of April, 2020