Decision #41/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to further benefits in relation to the December 30, 2019 accident. A videoconference hearing was held on January 27, 2021 to consider the worker's appeal.
Whether or not the worker is entitled to further benefits in relation to the December 30, 2019 accident.
That the worker is entitled to further benefits in relation to the December 30, 2019 accident.
On January 14, 2020, the worker reported to the WCB that she sustained a head injury in an incident at work on December 30, 2019. The worker described the incident as:
I was working with my client in the morning. I asked my client to turn down the volume down (sic) to the tv. Client got up, turned and struck me in my face with the tv remote. I was then head-butted twice in the head by the client. I then fell to the ground landing on my back.
The worker noted she had not missed any time from work, but was still experiencing problems with driving, dizziness and severe headaches.
In the Employer's Accident Report filed January 15, 2020, the employer described a similar mechanism of injury, with multiple injuries being reported, and noted:
I called the worker on December 30 about her incident. At that time, she reported an injury to her back/tailbone, chest, cheek and forehead. She did not know if she required medical attention, but she would advise me if she sought any medical attention. She never called me back. On Jan 14, 2020, WCB advised us about her claim. She then advised us that she sought medical on January 10, 2020. She has not missed any time from work. We have advised her that light duties are available.
The WCB received a Doctor First Report relating to a January 10, 2020 appointment with a family physician, who noted the worker's complaints of an ongoing headache after being attacked by a client. The physician diagnosed the worker with a head injury and referred her for a CT scan. On January 16, 2020, the WCB's Compensation Services advised the worker that her claim had been accepted.
On January 22, 2020, the worker underwent a CT scan of her brain, which indicated "No acute intracranial abnormality is seen." At a follow-up appointment with her family physician, the worker was referred to a neurologist.
In a discussion with the WCB on February 28, 2020, the worker advised that she noticed dizziness two days after the workplace accident and issues with her eyesight started a few weeks after that. The worker advised that she was having a hard time with driving, reading, turning lights on, watching television and using her phone. The worker also noted that she could not stand more than 15 minutes without getting dizzy, avoided bending down and had to lie down while reading.
On March 16, 2020, the worker was seen by the neurologist, who noted the worker reported she was hit in the head by a client in December 2019 and hit her head on the floor and two days later developed dizziness and headaches. The neurologist noted that the worker described dizziness or a spinning sensation when her head moved quickly, and that she started having nausea with the dizziness in the last few weeks. The worker further reported developing numbness and tingling in her right shoulder into their arm and having flashes of lights in her eyes. Other reported symptoms were being more forgetful since the incident; having difficulty following multiple conversations; having varied moods and being quick to get upset; and having ringing in her ears when talking on the phone. After examining the worker, the neurologist diagnosed the worker with symptoms consistent with post-concussion syndrome.
In a March 24, 2020 report, the worker's optometrist advised that the worker was initially seen on February 28, 2020 with complaints of experiencing a headache and feeling dizzy after reading for five minutes. The optometrist advised the worker returned to see him on March 3, 2020 because she had forgotten to advise him on the first visit of the workplace incident, specifically being head-butted, and the optometrist opined that "This is likely the cause of her dizziness and headache, probably suffered a concussion."
On March 31, 2020, the worker's file was reviewed by a WCB medical advisor, who noted that the initial medical information on file did not report any "…immediate post injury symptoms to support the occurrence of a brain injury" and that the WCB's criteria for a diagnosis of a concussion were not met. The WCB medical advisor opined that "Based on consideration of the MOI [mechanism of injury], the lack of initial symptoms indicative of brain injury, the demonstrated ability to continue to perform all of her regular duties for a period of two months, and the time now passed for recovery (three months), it is concluded that any effects of the reported head injury have likely resolved by now (consistent with the typical natural history of minor head injuries or concussion) and the current diagnosis appears to be non-specific headache in the setting of reported anxiety and depression…"
On April 2, 2020, Compensation Services advised the worker that they had determined she had recovered from the effects of her workplace injury and was not entitled to further benefits. Compensation Services further advised that a relationship between the workplace accident and the worker's current difficulties could not be established and a recurrence of her injury was not accepted.
On April 21, 2020, the WCB received a Doctor First Report from an examination on January 3, 2020. The attending physician indicated in that report that the worker reported a client had hit her in the forehead with his forehead, and the worker was experiencing dizziness on and off, light-headedness, and occasional room spinning and nausea. On examination, the physician noted no bruising or swelling on the worker's forehead, but slight swelling and a small bruise under the worker's left eye, and provided a diagnosis of "dizziness post attacked."
On April 22, 2020, the worker's union representative asked that the worker's WCB case manager investigate the worker's claim further, including obtaining statements from the worker's co-workers and clarifying the mechanism of injury with the worker. Included with the representative's request was an April 6, 2020 report from the worker's treating neurologist in support of the worker's request for further investigation into their claim. The WCB received statements from two co-workers on April 29 and May 6, 2020, respectively.
On May 11, 2020, a WCB medical advisor reviewed the worker's file and opined that the worker suffered a minor head injury as a result of the workplace accident on December 30, 2019 and that the WCB's criteria for a concussion were not met. The medical advisor noted that as the worker was able to continue performing her regular duties and other tasks such as driving, the contention that the worker sustained a significant brain injury was not supported. The medical advisor further opined that the reported later progression of symptoms and associated perceived functional limitations were unexplained and unaccounted for in relation to the workplace accident. On May 13, 2020, Compensation Services advised the worker that a further investigation had been conducted and there would be no change to their earlier decision.
On May 21, 2020, the worker's union representative requested that Review Office reconsider Compensation Services' decision. The representative submitted that the worker's treating healthcare providers supported the worker sustained a concussion from the December 30, 2019 workplace accident, noting in particular that the worker's ongoing difficulties demonstrated she was still suffering the effects of their injury. On July 28, 2020, the employer's representative provided a submission in support of Compensation Services' decision, and the worker's representative provided a response on July 31, 2020.
On August 12, 2020, Review Office determined that the worker was not entitled to further benefits. Review Office placed more weight on the evidence in close proximity to the December 30, 2019 workplace accident which did not show the worker sustained an immediate brain injury as there was no evidence of a loss of consciousness, alteration in mental state, loss of memory or acute neurologic deficit. Review Office found the worker sustained a facial contusion and a minor head injury, and was unable to establish the worker suffered a more significant injury. Accordingly, Review Office could not establish a relationship between the worker's ongoing difficulties and the workplace accident.
On August 25, 2020, the worker's union representative appealed the Review Office decision to the Appeal Commission, and a videoconference hearing was arranged.
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 states 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.
WCB Policy 220.127.116.11.10, Recurring Effects of Injuries and Illness (Recurrences) (the "Policy") deals with situations where there is a recurrence of an injury that results in a loss of earning capacity. A recurrence is described as "a clinically demonstrated increase in temporary or permanent impairment which results in a current loss of earning capacity, or a relapse of an injury which has been directly related to a previous compensable condition which results in a current loss of earning capacity."
The worker was represented by a union representative, who provided a written submission in advance of the hearing, and made an oral presentation to the panel.
The worker's position was that she is entitled to benefits as the evidence supports she sustained a head injury as a direct result of an assault at work on December 30, 2019, which caused symptoms and restrictions that persisted, necessitating time off work and medical treatment.
The worker's representative noted that the evidence further supports the worker experienced psychological difficulties as a direct result of the persistent effects of her compensable injury, which ought to be considered a direct result or sequelae of her compensable injury and acknowledged in her entitlement to benefits.
The worker's representative submitted that the WCB and WCB medical advisor's unwavering reliance on their Healthcare Services Position Statement on Concussion resulted in an unjust denial of legitimate head injury claims. The representative submitted that in relying on that Position Statement, the WCB failed to acknowledge the clear evidence that the worker continued to suffer the effects of a debilitating head injury months after her assault at work. The representative asked that the panel not adhere to the Position Statement.
The worker's representative noted that the worker's claim was accepted but benefits were denied because she was working. The worker submitted that the view that the worker's decision to continue working demonstrated she was fully capable of doing so was simply speculation. It was submitted that the fact that the worker tried to work did not mean she was not having any difficulty doing so.
The worker's representative stated that in their opinion, the worker did suffer a concussion as a result of the December 30, 2019 assault, and submitted that the occurrence of a concussion cannot be excluded simply by a purported lack of evidence, especially when limited evidence exists.
The worker's representative disagreed with the medical advisor's assertion that there had been a significant deterioration in the worker's condition following her assault, such that she was no longer able to work, which could not be medically explained by the compensable injury. The representative submitted that the evidence shows the worker has had consistent symptoms, which have persisted since the assault. The representative submitted that the worker's condition evolved somewhat over time, and every medical report on file recommended she take time off work to recover. The representative submitted that it was the worker's resilience and her capacity to cope which actually led to her being off work in March 2020.
The worker's representative submitted that the January 6, 2021 assessment by the neurologist should be accorded greater weight than that of the WCB medical advisor, as it is based on all the available evidence and most reasonably accounts for the worker's presentation.
The employer was represented by its Return to Work/Case Management Specialist and its Occupational Health Manager. The employer's representative provided a written submission in advance of the hearing and made a presentation to the panel.
The employer's representative advised that they agreed with the WCB's decisions that the worker's compensable injury had resolved and that any difficulties beyond March 8, 2020 were not related to the workplace incident of December 30, 2019.
The employer's representative advised that the employer accepts that the worker had a workplace accident on December 30, 2019, but submitted that there is insufficient evidence to support that her ongoing difficulties or symptoms were related to the workplace accident.
The employer's representative noted that the evidence showed that the worker was able to continue working following the incident, started to miss time at the beginning of March 2020, then discontinued working as of March 9, 2020. It was noted that the WCB medical advisor reviewed the file and felt that any relationship between the degree of minor head and facial injuries which the worker suffered in December 2019 and her status or symptoms and diagnoses in March 2020 was speculative and unlikely, given the length of time that had passed.
The employer's representative noted that Review Office was unable to establish that a more significant injury had occurred and was unable to account for the worker's worsening symptoms, including her vision, hearing and concentration issues, in relation to the December 2019 incident. The representative stated that their own review of the claim file supported the Review Office conclusion and decision.
In conclusion, the employer's representative stated that the employer does not question the validity of the medical information which supports the worker's ongoing difficulties. The representative stated that the employer sympathizes with the worker, but disagrees that the worker's ongoing issues are related to the December 30, 2019 workplace incident. The representative therefore submitted that the worker's appeal should be dismissed.
The issue before the panel is whether or not the worker is entitled to further benefits in relation to the December 30, 2019 accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a further loss of earning capacity and/or required further medical aid as a result of her December 30, 2019 workplace accident. The panel is able to make that finding, for the reasons that follow.
The worker's claim has been accepted by the WCB for a facial contusion and a minor head injury.
Based on the information which is before us, the panel accepts that the worker sustained a head injury as a result of her December 30, 2019 workplace accident. The panel is further satisfied that the worker is entitled to benefits beyond March 2020 in respect of her compensable head injury.
The January 3, 2020 report from the attending physician supports that the worker was experiencing symptoms of dizziness, lightheadedness, occasional room spinning and occasional nausea as a result of her workplace injury. The worker subsequently arranged to see a family physician, and in subsequent chart notes from the worker's family physician from January 10, 2020 through to March 2020, her physician continued to diagnose a head injury and to document ongoing complaints and symptoms including headache and dizziness.
In the January 3, 2020 report from the attending physician, the physician recommended that the worker was not capable of modified work. The family physician also consistently recommended in his reports from January through to March 2020 that the worker take time off work due to her injury, but the information shows that the worker did not do so.
The evidence therefore shows that while the worker's claim was accepted, the worker continued working from January through to March 2020 and had no time loss or wage loss through to March 9, 2020 when she went off work. The panel is satisfied that the worker's wage loss or loss of earning capacity starting in March 2020 is related to her compensable head injury, and the worker is entitled to wage loss benefits as at that date.
The panel accepts the worker's evidence that she did not have sick time left or available to her in early 2020. The panel further accepts the worker's evidence at the hearing that when she went back to work at the beginning of January 2020, she continued to do her regular job but that it was in a different unit, that she had easier work to do and she got help from the rest of her team when she was not really feeling well or she needed help, and that she continued working on that basis until March 9, 2020, when she went off work. The panel does not accept that the worker's return to work and continuing to work between January and March 2020 indicates that her injury was of a minor nature which would have resolved or been expected to have resolved by March 2020.
The panel is satisfied that the worker's compensable head injury would have resulted in the symptoms which were identified by the worker to her treating practitioners, including headaches, nausea, dizziness and difficulties with vision would be related to her injury, and the worker would be entitled to benefits for treatment of those symptoms. The panel notes that while we are satisfied that the worker had ongoing symptoms and is entitled to benefits after March 9, 2020, the panel is not in a position to determine the length or extent of any such benefits, and refers that issue back to Compensation Services for review and determination.
The panel notes that it is our understanding that head injuries generally tend to resolve within a relatively short period of time. The panel recognizes that the August 26, 2020 report from the worker's treating physiotherapist, which was provided as an attachment to the worker's written submission shows that the worker continued to receive treatment for complaints of ongoing dizziness and poor balance up until that time and was assessed for balance on August 21, 2020 and reported minimal dizziness and that a gradual return to work was proposed at the time. The worker's evidence at the hearing was that she started a gradual return to work in August 2020, and had gradually been increasing her hours. The worker said she still has dizziness sometimes and headaches on and off, but it is not like before and her symptoms are getting better.
The panel further notes that Review Office specifically commented in their August 12, 2020 decision, that given the compensable injuries which they identified, of a facial contusion and a minor head injury, Review Office did not find the worker's psychological symptoms (i.e. anxiety and depression) to be subsequent injuries as referenced by the worker's representative. In the circumstances, and given the lack of information or adjudication on this issue, the panel takes no position with respect to the worker's psychological symptoms or diagnoses and refers such matters back to Compensation Services.
Finally, while the worker's representative urged the panel to take a position with respect to the specific diagnosis of a concussion and the WCB Healthcare Services Position Statement, the panel is not prepared to do so in this instance, given the particular facts of the case and the lack of medical and other information closer in time to the incident itself.
In conclusion, and as indicated above, the panel finds, on a balance of probabilities, that the worker suffered a further loss of earning capacity and required further medical aid as a result of her December 30, 2019 workplace accident, and is entitled to further benefits in relation to that accident.
The worker's appeal is allowed.
M. L. Harrison, Presiding Officer
R. Campbell, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 26th day of March, 2021