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 further benefits after November 28, 2018. A teleconference hearing was held on September 17, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits after November 28, 2018.

Decision

The worker is entitled to further benefits after November 28, 2018.

Background

The employer provided an Employer's Incident Report to the WCB on November 14, 2018 reporting the worker sustained trauma to his head and left wrist in an incident at work on November 10, 2018 when he was "…struck several times" with a broom handle. The worker was taken to a local hospital where he was diagnosed with "minor trauma."

On November 23, 2018, the WCB contacted the worker to discuss his claim. The worker confirmed the incident and advised he was not able to finish his shift as he was taken to the hospital after the incident. He also confirmed that on November 21, 2018, he sought medical attention from his treating family physician who noted "ongoing pain on his head where he was hit" and a healing abrasion on his scalp. The Doctor First Report from that date diagnosed soft tissue injuries secondary to assault and recommended the worker remain off work for a week. The worker's claim was accepted by the WCB on November 28, 2018. On December 12, 2018, the worker advised he continued to have headaches but that he had returned to work on November 28, 2018.

The worker attended a specialist for further testing on January 8, 2019 after reporting headaches and skull sensitivity that worsen with "…physical activity and thinking/cognitive activity." The physician noted a mostly normal examination except for tandem stance and gait tests and diagnosed the worker with post traumatic chronic headaches. The physician recommended the worker return to work more gradually beginning with shorter hours and increasing over time, and also that he access physiotherapy.

A WCB medical advisor reviewed the worker's file, including the January 8, 2019 medical report on January 27, 2019. The medical advisor was of the view there was not a new diagnosis based on the January 8, 2019 medical reporting. The initial diagnoses made shortly after the workplace accident was of minor soft tissue injuries with no mention of a concussion and based on the medical evidence on file, the WCB medical advisor stated a diagnosis of a concussion would not be accepted in relation to the workplace accident. Further, the WCB medical advisor stated his opinion that "It is improbably [sic] and not consistent with the natural history of this type of injury to have the incident followed by a return in function for several weeks and then to subsequently experience functional impairment."

A WCB physiotherapy consultant also reviewed the worker's file and provided an opinion on February 1, 2019 that vestibular physiotherapy was not required for the worker based on the January 8, 2019 medical report.

On February 1, 2019, the WCB advised the worker it had determined he recovered from the effects of his workplace injury and was not therefore entitled to further benefits after November 28, 2018.

The worker's representative provided the WCB with further medical information on January 13, 2020 in the form of a follow-up medical report from the worker's treating physician dated May 8, 2019 and an email from the worker dated May 2, 2019, and requested the WCB reconsider its earlier decision. On January 13, 2020, the WCB advised the worker there would be no change to the February 1, 2019 decision that he was not entitled to further benefits after November 28, 2018.

On February 26, 2020, the worker's representative requested reconsideration of the WCB's decisions to Review Office. The worker's representative submitted that the worker's chronic post-traumatic headaches were a result of the workplace accident and the worker continued to experience symptoms and required restrictions and further treatment beyond November 28, 2018. As such, the worker was entitled to further benefits. On April 14, 2020, the employer provided a submission in support of the WCB's decision, a copy of which was provided to the worker and his representative on April 15, 2020. The worker’s representative provided a further submission on April 16, 2020.

Review Office determined on April 23, 2020 the worker was not entitled to benefits after November 28, 2018. Review Office relied upon the January 27, 2019 opinion of the WCB medical advisor that the increase in the worker’s symptoms affecting his vestibular function was inconsistent with the natural history of this type of injury. Review Office found there was no medical evidence to support the worker was entitled to benefits after November 28, 2018 when he was medically cleared to return to work.

The worker's representative filed an appeal with the Appeal Commission on April 28, 2020. A teleconference hearing was arranged and held on September 27, 2020.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under that Act and the policies established by the WCB's Board of Directors.

When it is established that a worker has been injured as a result of an accident at work, the worker is entitled to compensation under s 4(1) of the Act. 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 was represented in the hearing by a union representative who provided a written submission in advance of the hearing, and made an oral submission on behalf of the worker in the hearing, as well as posing questions to the worker. The worker provided oral testimony through answers to the questions posed by the union representative and members of the panel.

The worker’s position, as outlined by his advocate, is that as a result of the compensable workplace accident of November 10, 2018, the worker sustained injury to his head and body that had not fully resolved by November 28, 2018 and as such, the worker should be entitled to further benefits beyond that date.

As part of the written submission provided by the worker’s union representative on September 9, 2020, the panel also received a series of medical chart notes prepared by the worker’s treating physician for the period from November 14, 2018 through March 2, 2020 as well as a number of photographs showing the areas of the worker’s injury to his head and left arm.

In the written submission, the union representative provides detail as to the worker’s position on appeal. The submission sets out that despite a persistent headache which had not relented since the assault, the worker returned to work on November 28, 2018 based on the treating physician’s advice. He continued working, primarily sedentary duties, until January 8, 2019 when he saw a specialist who recommended he start physiotherapy and reduce his working hours, returning to work gradually, due to “post traumatic chronic headaches.”

The union representative commented, in the written submission that the WCB medical advisor opinion of January 27, 2019 is based on an erroneous understanding of the facts, noting that the worker returned to work even though he continued to struggle with symptoms of persistent headache. Further, the evidence does not support the WCB medical advisor’s conclusion that the worker’s “return to function for several weeks and [subsequent] functional impairment” was inconsistent and improbable because there was no evidence of concussion. The worker’s position is that as a result of being struck in the head with a wooden rod such that he fell facedown to the floor and then was struck again, he was significantly injured causing persistent headache in the weeks that followed as outlined in the medical chart notes and ultimately, some degree of vestibular dysfunction.

In his testimony, the worker described to the panel the circumstances of the accident that took place in the course of an overnight shift that began on November 10. At the time of the assault, he was working alone and on a break in his office. He was hit on the left wrist and then on the left side of his head, causing him to fall to the floor. He was then hit again on the back of his head before help arrived. On getting to his feet, he recalled having trouble with his balance and feeling pain in the areas of impact. Afterwards, he filled out some paper work and was taken to hospital by a colleague. The worker noted he did not return to work the next day as he felt sore from the injuries sustained.

In the first week following the injury, the worker stated that he rested as much as he could and did not walk very much as he felt shaky on his feet. He took over-the-counter pain medication as required and noted that moving around too much made his headache worse. He saw his family physician on November 14, 2018 in follow-up as suggested when he attended hospital after the injury. He returned for further follow-up on November 21, 2018 and was advised then to monitor his symptoms and return if his condition worsened. At that time the physician authorized his return to work after another week of rest.

The worker described his return to work on November 28, 2018, noting he returned to light duties and an abbreviated shift schedule. He told the panel he did not feel safe to return to his usual duties and was not certain he could handle a full shift. The employer provided alternate duties to him as a kind of informal accommodation. The worker noted he felt about the same at that time as he had in the two weeks since the injury occurred and needed to take more frequent breaks or break up his tasks when he returned to work.

The worker advised the panel that when he tried to increase his work hours from 8 to his usual 12-hour shifts, he found he could not tolerate working more than two of the three longer shifts and began to use his sick time as a result. When he returned to see his treating physician on December 18, 2018 he was still unable to work 12-hour shifts without discomfort. He was experiencing ongoing headaches during this time. He requested a referral to a head injury specialist at that time and saw the specialist on January 8, 2019.

The worker described to the panel that in December he was not at his pre-injury performance level and his energy lagged during a 12-hour shift. Over a pre-booked vacation week at the end of December, he rested a lot and did not engage in any activities. When he returned to work after vacation and seeing the specialist, he did so on reduced hours at the recommendation of the physician, slowly increasing his hours over a period of weeks to full-time shifts.

The worker confirmed to the panel that although the specialist had recommended he obtain a vestibular assessment from a physiotherapist, he never did so as WCB did not agree to cover the cost. The worker indicated that medication has helped with his headache but described that he continues to experience a consistent headache, although the pain is no longer debilitating.

In sum, the worker’s position is that he is entitled to further wage loss and medical aid benefits because the evidence supports that the persistent headaches that required a gradual return to work in January 2019, as well as the vestibular symptoms that were noted as requiring further assessment and possibly treatment, were, on a balance of probabilities, caused by the November 10, 2018 workplace accident.

Employer’s Position

The employer was represented in the hearing by its Workers Compensation Coordinator who provided an oral submission on behalf of the employer.

The employer’s representative outlined the employer’s position that the decision of the Review Office with respect to the worker’s entitlement to benefits beyond November 28, 2018 is correct and should be upheld.

The employer’s representative noted that the worker was placed on alternate duties upon his return to work on November 28, 2018 as a response to his involvement in a traumatic event and that the worker worked 12-hour shifts beginning December 12, 2018 through to his vacation. The employer confirmed that the worker’s vacation week had been approved well before the compensable injury occurred.

The employer’s representative urged the panel to accept the opinion of the WCB medical advisor that it was not probable that the worker’s decline in function some weeks after the injury occurred was related to the injury of November 10, 2018 as the medical evidence supported that the worker had recovered from that injury. The records from the November 11, 2018 hospital attendance do not reference any loss of consciousness and the chart notes, when read chronologically, do not provide consistent reporting of headache or an increase in severity of symptoms. For example, the November 21, 2018 Doctor First Report does not make mention of headache. Furthermore, the worker did not ever advise the WCB he saw his treating physician on November 14, 2018.

The employer’s position, as outlined by its representative is that the evidence supports the findings of the Review Office and therefore the Review Office decision that the worker is not entitled to benefits beyond November 28, 2018 should be upheld.

Analysis

The question on appeal is whether or not the worker is entitled to further benefits after November 28, 2018. In order for the worker's appeal to succeed, the panel must find that as a result of the compensable injury, the worker experienced a loss of earning capacity or required medical aid to cure and provide relief from that injury beyond that date. On the basis of the evidence before us and for the reasons that follow, the panel was able to make such findings.

In considering whether or not the worker is entitled to benefits after November 28, 2018, the panel considered the evidence on file as well as the submissions of the parties and the evidence provided by the worker in advance of the hearing and in his oral testimony.

The Emergency Treatment Record on file from the worker’s post-accident assessment indicates “+H/A 9/10” which the panel understands to mean the worker complained of headache at that time and that he described the pain level as 9 on a scale of 1 to 10.

The medical chart notes from the worker’s treating physician outline that subsequent to the injury, the worker reported ongoing headaches. The November 14, 2018 chart note indicates “ongoing with headaches”. The November 21, 2018 chart note indicates “still with ongoing pains where he was hit on the head”. On the next visit on December 18, 2018 the chart records “still with ongoing headaches, sometimes generalized, sometimes on the area of trauma, throbbing”. The January 16, 2019 chart note indicates the worker’s report “seen by Dr. [specialist], was told to go for vestibular physiotherapy, still with headaches”. On February 7, 2019, the chart note again indicates “still with occasional headaches”.

The specialist seen by the worker on January 8, 2019 outlined in chart notes that the worker complained of “headache and skull sensitivity” and diagnosed post traumatic chronic headaches on the basis of the physical examination and history provided.

The panel also reviewed the opinion provided by the WCB medical advisor after reviewing the file documents on January 27, 2019. The panel noted that the medical advisor referenced a concussion diagnosis, but that there is no record in the file of such a diagnosis. The medical advisor concluded that there is no basis for a diagnosis of concussion related to the workplace injury. The medical advisor then goes on to substantiate his further conclusion that the worker’s present functional impairment is not probable on the basis that the file evidence is not consistent with the diagnosis of concussion.

As noted by the worker’s union representative, the factual underpinnings of the WCB medical advisor’s January 27, 2019 opinion are not consistent with the evidence on file. For this reason, the panel did not find the opinion of the WCB medical advisor to be helpful in its assessment of the question before it. The panel in this case preferred to rely upon the evidence provided by the worker’s treating physician and the specialist. The worker’s testimony before the panel was consistent with the information provided contemporaneously to the treating medical practitioners and to the WCB in its investigation of the claim. This evidence supports the worker’s position that he continued to experience symptoms arising out of and relating to the head injury incurred in the compensable workplace accident of November 10, 2018 after his return to work on November 28, 2018, and that these symptoms impacted his ability to return to regular duties and hours.

The worker’s treating physician continued to monitor his condition beyond the return to work date and within three weeks made a referral to a specialist when it was clear that the worker’s symptoms were not improving with time. The specialist ultimately offered a diagnosis of post traumatic chronic headache and recommended further assessment by a physiotherapist.

The panel finds that the evidence before us supports a finding, on a balance of probabilities, that the worker was not fully recovered from his compensable workplace injury as of November 28, 2018, and that he continued to require medical aid to cure and provide relief from that injury beyond that date. Furthermore, the panel finds that the evidence supports a finding, on a balance of probabilities, that the worker was not fully capable of a return to his regular duties by November 28, 2018. Therefore, to the extent that this impacted the worker’s earning capacity, the panel finds that he is entitled to wage loss benefits after that date.

Therefore, the worker is entitled to further benefits after November 28, 2018, and the appeal is allowed.

Panel Members

K. Dyck, Presiding Officer
D. Loewen, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 30th day of September, 2020