The Appeal CommissionThe Workers Compensation Act of Manitoba

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 November 1, 2018. A videoconference hearing was held on January 28, 2021 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after November 1, 2018.

Decision

That the worker is entitled to wage loss and medical aid benefits after November 1, 2018.

Background

On March 26, 2018, the worker filed a Worker Incident Report with the WCB, indicating she injured her head, left elbow, shoulder and back in a March 23, 2018 workplace incident. The incident was said to have occurred early in the morning of March 24, at the end of the worker's March 23 night shift. The worker described the incident as "I went out the door by the ramp, I was very careful. When I got to where it was flat and lots of water I fell flat on my back. I was leaving work at the time. Still on work premises."

The worker noted on the Incident Report that she was able to get up after the workplace incident, found her lunch bag and cell phone and went to her vehicle. She drove a couple of blocks, then parked the car and went to the local emergency department. She noted that x-rays were taken at the emergency department, she was put in a neck brace and was prescribed medication for pain and muscle spasms. The worker further advised that she returned to the emergency department on March 25, 2018 due to a headache which had never gone away since her fall.

The March 24, 2018 triage report from the emergency department noted that the worker reported she slipped on ice and fell backwards, hitting the back of her head, but did not lose consciousness. The worker had tenderness on both sides of her neck, pain to the middle of her back, a minor abrasion to her left elbow, complaints of pain in her shoulder, a small bruise to her right knee and throbbing head, with no open areas noted on her head. The x-rays taken that day showed no fracture in the worker's lumbar, thoracic or cervical spine areas or her left elbow. The hospital report for the worker's attendance at the emergency department on March 25, 2018 indicated a diagnosis of soft tissue injuries and queried a mild concussion.

On March 27, 2018, the WCB contacted the worker to discuss her claim. The worker confirmed the mechanism of injury and reported she hit her head on the ground. She said she did not lose consciousness or experience vomiting or dizziness, but had a headache shortly after the workplace incident. The worker further reported her head was currently throbbing, her ears were ringing, and her back and elbow were sore. On March 29, 2018, the worker was seen by her family physician, who diagnosed her with a whiplash injury and a mild concussion.

On April 9, 2018, the worker advised the WCB that she returned to work on March 29 and April 2, 2018, but had ongoing pain, headaches and a sore neck. She said she sought medical treatment on April 4, 2018, at which time she was placed off work for two weeks and referred for physiotherapy. The worker further advised that she continued to experience headaches and a sore neck, but her symptoms had lessened.

On April 5, 2018, the worker attended an initial physiotherapy assessment where she was diagnosed with whiplash, a cervical sprain/strain, a concussion and a left elbow contusion. When describing the workplace incident, the worker said she remembered coming out of her work building, then waking up on her back.

On April 17, 2018, the worker saw her family physician, who reported the worker seemed "confused, forgetful" and that much of what she said did not make sense. The physician sent the worker to the local emergency department for a CT scan of her brain and a neurological evaluation. The CT scan was reported as normal and a cranial nerve examination was also normal. The emergency department physician noted some slow speech and mild memory impairment and diagnosed the worker with a concussion.

On May 24, 2018, the worker was seen by a neuropsychologist, who opined that the worker had "…a complex and somewhat unusual presentation with the concussion, with a clear head CT scan and an abrupt change in her functioning," and recommended the worker be referred for a neuropsychological assessment.

On June 14, 2018, the worker attended a call-in examination with a WCB medical advisor. Based on the initial reporting on the worker's file, the WCB medical advisor opined that the initial diagnosis related to the March 23, 2018 workplace incident would be a soft tissue neck injury or strain/sprain, whiplash or non-specific neck pain, the natural history of which would be gradual recovery with time. The medical advisor noted that most would recover within a few weeks, but it was "…not uncommon for it to take up to three months for the pain to resolve and for functional recovery to take place."

The WCB medical advisor further noted that the worker had multiple complaints such as dizziness, Spiderman hearing, tinnitus, impaired vision, cognitive issues, nausea, impaired sleep, change in mood and personality, cannot smell things burning and unable to look after herself. The medical advisor opined that the worker's report of "…being normal cognitively and neurologically initially and then the onset of…severe impairments in her ability to function some time later, is not consistent even with the natural history of a concussion. It is not consistent with what you would expect from a neck injury." The WCB medical advisor agreed with the psychologist's recommendation that the worker be seen for a neuropsychological assessment.

On June 25, 2018, the worker underwent an MRI scan of her brain which indicated "No features of closed head injury." On July 24, 2018, the WCB's Compensation Services advised the worker that her claim was accepted for a cervical strain/sprain and left elbow contusion and that the diagnosis of a concussion was not accepted.

The worker underwent neuropsychological testing on August 7 and 8, 2018. The neuropsychologist provided a report, received October 4, 2018, in which he opined that in the absence of early neurologic indicators and of traumatically-based findings on the brain MRI, it was unlikely the findings of the neuropsychological assessment would be directly related to the workplace accident on March 23, 2018.

On October 22, 2018, the neuropsychologist's report was reviewed by the WCB medical advisor, who noted that findings were apparent on the neuropsychological testing but it was the examiner's opinion that they were not related to the workplace slip and fall injury. The medical advisor stated that the diagnosis in relation to the compensable injury remained a soft tissue injury to the neck. She noted that there had been no documentation of medical attention specifically for the neck since the call-in examination in June 2018 and the soft tissue injury to the worker's neck should have resolved by now. The medical advisor concluded that absent updated medical, there was no evidence of ongoing effects from the compensable injury.

By letter dated October 24, 2018, Compensation Services advised the worker that her current difficulties could not be medically accounted for in relation to her compensable injury of March 23, 2018 and she would not be entitled to benefits after November 1, 2018.

On January 25, 2019, the worker's union representative requested that Review Office reconsider Compensation Services' decision. The representative submitted that the medical evidence on file supported the worker sustained a concussion from the workplace accident, and her injury was responsible for her ongoing difficulties. On March 21, 2019, the employer's representative provided a submission in support of Compensation Services' decision.

On April 8, 2019, Review Office determined that there was no entitlement to wage loss and medical aid benefits after November 1, 2018. Review Office found the worker was cognitively and neurologically normal for the first three weeks following the workplace accident. Review Office found that the sudden onset of severe functional impairments as outlined on the April 17, 2018 reports was not consistent with the natural history of a concussion and that these symptoms could not be medically accounted for in relation to the March 23, 2018 workplace accident.

Review Office further found there had been inconsistencies with what the worker was reporting and the actual findings, and concurred with the neuropsychologist that the abrupt change in functioning with a normal CT scan of the brain was an unusual presentation for a concussion. Review Office accepted the opinion of the WCB medical advisor that there was no evidence of disruptive brain functioning after the blow to the head. Review Office further accepted the neuropsychologist's opinion that the findings on the neuropsychological assessment were not related to the slip and fall injury.

Review Office agreed that the compensable diagnosis was a soft tissue injury to the neck and that it had since resolved. Review Office found that neuropsychologist agreed with Compensation Services' decision to not accept a concussion as a compensable diagnosis. Review Office concluded that the worker did not have a loss of earning capacity beyond November 1, 2018 in relation to the injuries sustained (soft tissue injury to the neck and contusion to the left elbow) on March 23, 2018.

On August 19, 2020, the worker's union representative appealed the Review Office decision to the Appeal Commission and a videoconference 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 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.

Worker's Position

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 responded to questions from her union representative, and the worker and her representative responded to questions from the panel.

The worker's position was that she is entitled to benefits beyond November 1, 2018 because the available evidence supports that she has continued to suffer the effects of the head injury she sustained when she fell at work in the early hours of March 24, 2018.

The worker's representative submitted that the initial reports on file consistently demonstrated that the worker struck her head when she fell. She attempted to drive home but returned to the hospital immediately due to an intense headache. The representative noted that while the attending physician who saw the worker within minutes of her accident did not see any immediate signs of concern for a concussion, the physician who assessed her the following day did, and questioned whether she sustained a concussion. Five days after the accident, the worker followed up with her family physician, who diagnosed her with a concussion.

The worker's representative noted that while the WCB's medical advisor felt the worker's presentation changed significantly when she was seen by her family physician on April 17, 2018, the family physician, who had seen the worker two days before her accident, found the difference in presentation to be most striking two days prior to the accident as compared to after the accident. The representative submitted that the family physician provided consistent reports supporting the diagnosis of concussion in relation to the accident, and arranged for numerous medical assessments, which in their view demonstrated that the worker continued to suffer the effects of persistent signs and symptoms of post-concussion syndrome.

The worker's representative noted that the WCB discounted the diagnosis of a concussion based in part on the reports that corroborated that the diagnosis was based on the worker's self-reported history, which was seen to be inconsistent with respect to whether or not she had lost consciousness. The representative submitted that to address this point, they provided relevant file documentation to the worker's psychiatrist, who confirmed his opinion that the worker's presentation was consistent with a post-concussion syndrome. They also provided the relevant file documentation to the worker's neurologist who specializes in concussions and who had assessed the worker recently. Following review of the same documentation as was relied on by the WCB's medical advisor to deny responsibility for the worker's injury, the neurologist confirmed her prior assessment that the worker sustained a concussion as a result of her fall at work and her ongoing symptoms were a consequence of the head injury sustained in 2018.

The worker's representative submitted that the file evidence, as well as information collected from the file of another benefits program and information submitted in advance of the hearing, documented that the worker has endured persistent cognitive, psychological, visual and auditory dysfunction since her accident. It was submitted that the preponderance of evidence supported that the worker's issues were directly attributable to the head injury she sustained as a result of her workplace accident.

The worker's representative submitted that the expressed opinions of the worker's healthcare providers, including her family physician, her psychiatrist, her psychologist and her neurologist all corroborated that the head injury she sustained had resulted in the ongoing difficulties and her current conditions. The representative asked that the panel place considerable weight specifically on the opinions of the worker's family physician, her psychiatrist and her neurologist, who had the most comprehensive knowledge and understanding of the worker's history and would argue that her current presentation is a consequence of her accident.

The worker's representative acknowledged that the symptoms of a concussion most often present soon after an accident, but disagreed with the WCB medical advisor's perspective, presumably based on the WCB Healthcare Position Statement on Concussion, that a lack of early signs rules out a concussion. The representative noted that the Position Statement was neither policy nor a directive. The representative noted that the treating neurologist who specializes in concussions had stated that delayed onset of symptoms is not unusual, and that the two treating neurologists had come to the same diagnosis of post-concussion syndrome.

In any event, the worker's representative submitted that the evidence showed that the worker presented to the hospital within minutes of the accident complaining of head pain, returned to the hospital the very next day complaining again of headaches, and her headaches persisted to the present. The representative submitted that based on the headaches alone, there is sufficient evidence to say there has been a head injury that has not remitted and is still the WCB's responsibility. He submitted that in a sense, the "but for" test applied; that but for the accident, the worker would not have had at least some of the symptoms she was presenting with currently.

In conclusion, the worker's representative submitted that the worker was assessed by a number of professionals and specialists, who generally concurred that she was presenting with symptoms of post-concussion syndrome. The representative submitted that they were not suggesting that all of the myriad of complaints which were referred to on the file were a consequence of her head injury, but that the worker was coming with symptoms which were at least in part due to her concussion.

The representative therefore submitted that there is sufficient evidence for the panel to accept responsibility for the worker's ongoing difficulties, and asked that the worker's appeal be accepted and her entitlement to wage loss and medical aid benefits reinstated.

Employer's Position

The employer was represented by an advocate, who made an oral submission at the hearing and responded to questions from the panel.

The employer's position was that the WCB was correct in denying responsibility for wage loss or medical aid benefits after November 2018 on this claim.

The employer's representative submitted that there was no definitive or compelling evidence to support that the effects of the worker's work injury and the accident itself were disabling or required additional treatment past November 2018.

The employer's representative further submitted that the available evidence did not support that the worker sustained a concussion as a result of the work accident. He submitted that while it had been alleged that the worker was suffering from post-concussion syndrome, the WCB had definitively rejected responsibility for any concussion-like symptoms. The representative noted that Review Office stated in their decision that the worker was cognitively and neurologically normal for the first three weeks following the workplace accident, and that the sudden onset of severe functional impairments as outlined in the April 17, 2018 reports were not consistent with the natural history of a concussion. The representative stated that the employer had no reason to dispute the WCB's conclusions.

The employer's representative candidly noted, however, that he was alarmed by how cognitively impaired the worker was presenting and found it concerning the medical testing had not really found a reason for the worker's cognitive impairment.

In conclusion, the employer's representative submitted that this was undoubtedly a very complicated case. The representative submitted that there was no definitive evidence that the worker's obvious ongoing problems were caused by her work accident, and the employer did not believe the evidence demonstrated that the accident resulted in the litany of problems which the worker was currently experiencing. The employer's representative noted that the worker has an active claim with the other benefits program, and submitted that this was probably where the worker's case belongs in the circumstances.

Analysis

The worker has an accepted claim for compensation and is appealing the decision that she is not entitled to wage loss or medical aid benefits after November 1, 2018. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity and/or required medical aid beyond November 1, 2018 as a result of her March 23, 2018 workplace incident. The panel is able to make that finding, for the reasons that follow.

Based on our review of all of the information and submissions which are before us, on file and as presented in advance of and at the hearing, the panel is satisfied, on a balance of probabilities, that the worker continued to suffer from the effects of her March 23, 2018 workplace accident and injury beyond November 1, 2018 and is entitled to benefits beyond that date.

The panel notes that this is a very complicated case.

The panel acknowledges that there is inconsistency with respect to the reporting of the initial effects of the workplace accident. There is no dispute that the worker hit her head when she fell leaving work in the early morning of March 24, 2018. The initial information on file indicates that the worker did not lose consciousness. The medical reports on file indicate that the worker reported to a number of her healthcare providers and specialists that she suffered a loss of consciousness when she fell, which is inconsistent with what was reported at or around the time of the accident.

When asked at the hearing if she recalled whether she lost consciousness at the time of the accident, the worker indicated that she did not recall, and did not know how she would know. The panel agrees with the worker that it might be hard to determine if one lost consciousness at the time of an accident. The panel notes, however, that it is problematic if the right information is not provided to healthcare professionals, who rely on the information they are provided with when diagnosing and treating an injury.

The panel places weight on the indication in the September 6, 2019 report from the worker's family physician, where she wrote that:

Even though she was able to get up her memory recalling of what exactly happened that evening is vague and it was very evident and clear soon after the injury that [the worker] has not been functioning in a cognitive as well as a physical way, the same as what she had been before the accident.

…Of note is that I actually saw [the worker] in my office on the 22nd of March 2018, the day before the accident and she presented with none of the symptoms that she did after the accident.

I saw her again on the 29th of March with a history that she slipped and fell on the ice in the parking lot at the hospital. She landed flat on her back, neck and head and my notes so (sic) that she was not able to drive home. She went to the emergency room on the same day and again the next day….

The worker has reported a large number of symptoms on an ongoing basis throughout the file. The worker described her current symptoms at the hearing as including that she still has headaches, that they have never left but have lessened somewhat; that she takes medication for her headaches; that her concentration is not good; she has ringing in her ears, with the left ear being worse than the right; she is unable to sleep; she is still dizzy; she walks a little crooked and walks into things; she has a lot of trouble with her eyesight and focusing; she has to take medication for anxiety; and she has to rely on her family to help her with grocery shopping, banking and financial matters.

The panel places weight on the opinion of the treating psychiatrist, who opined in his letter dated October 24, 2018, that:

She presents with somatisation with varying emotions. History and the clinical presentations indicate she is suffering from post concussion syndrome as well as psychological.

The panel notes that following the Review Office decision, where it was noted that the treating psychiatrist's diagnosis was made with inaccurate information, the worker's representative provided the psychiatrist with relevant documents from the claim file which were contemporaneous with the time of the accident, and requested a further opinion as to the worker's current diagnosis and symptoms. In his opinion dated February 10, 2020, the psychiatrist noted that the worker had been attending his clinic periodically, and during this time she had told him she had numerous difficulties, including some memory issues; difficulty doing banking and money transactions; difficulty travelling in the bus; difficulty focusing; difficulty with word finding and processing information; difficulty completing tasks; and some speech difficulty. The psychiatrist noted that these difficulties continued to exist through every follow-up appointment since her first visit in September 2018 to her most recent visit on January 28, 2020, and opined that:

Given her presentations, these symptoms can be due to the concussion. In my opinion, these symptoms are due to post concussion organisity.

After following her in my clinic over a period of several months, I am convinced that [the worker] suffers from Post-Concussion Syndrome.

The panel notes that in his May 24, 2018 report, the treating neuropsychologist opined that the case involved:

…a complex and somewhat unusual presentation with the concussion, with a clear head CT scan and an abrupt change in her functioning…there are a number of possibilities including concussion, including psychogenic as well and, what I am going to be doing is asking WCB if they would approve her for a neuropsychological assessment which would more definitive here in terms of diagnostic process.

In his July 12, 2018 report, the neuropsychologist opined that:

In my view, there appears to be a mix of psychological psychogenic factors with the possibility that she has these ongoing post-concussive effects particularly given the report I had from her physician who saw her two days pre-accident where she was neurologically normal and, where she was not normal on an immediate post-accident basis, hence, concern about post-concussive effects.

In his October 4, 2018 report following the neuropsychological testing of the worker, the neuropsychologist confirmed that the validity testing indicated the worker had given full effort; that her "functioning clearly was motivationally intact and there was no evidence that she was manipulating her task performance or producing suboptimal results."

The neuropsychologist went on to state that the results of the assessment indicated that:

In the context of the initial parameters on an immediate post-accident basis, and in the presence of no traumatically-based findings on the brain MRI, it would be unlikely that the findings on the neuropsychological assessment would directly relate to the physical sequelae of the slip and fall accident that [the worker] sustained on March 23, 2018.

The neuropsychological test results were, however, lower than expectation in terms of her overall level of intellectual functioning and, in her verbal processing primarily,…and there was weakness in some aspects of her higher order problem solving, particularly in catching on a new situations, in her sustained attention and concentration, and in her non-contextual verbal memory, albeit in the context of what appeared to be generally intact memory functioning otherwise, and what had been assessed on the psychometric assessment of personality and emotional functioning where there was symptom sensitization in the context of somatization, depression, and anxiety on one of the test that she was administered…

Her major issues at this time were in terms of her neck and back pain as well as headaches, auditory sensitivity, and visual disturbance, all of which she stated were new on a post-accident basis.

The panel recognizes that the neuropsychologist noted that it would be difficult to state that the findings on the evaluation would be related to the physical effects on the worker of her accident, but notes that this was in the context of the worker having been seen by the WCB medical advisor "who did not feel she met WCB criteria for having sustained a concussion" and the WCB having determined in their July 24, 2018 decision that the claim was accepted as a cervical strain/sprain and elbow contusion only, that the diagnosis of a concussion was disallowed as the criteria for a concussion had not been met and that wage loss and other entitlements would be based on the accepted compensable diagnosis.

The panel notes that at the hearing, the worker stated that she has continued seeing or talking to the neuropsychologist regularly, or about once a month.

The panel further notes that following the Review Office decision, the treating neurologist was also provided with contemporaneous relevant documents, and after reviewing that information and based on her conversation with the worker, she confirmed in her letter of October 9, 2020 her opinion that the worker sustained a concussion as a result of her fall in the workplace.

The panel acknowledges the difference of opinion between certain treatment providers in this case and the WCB in respect of the criteria for when a concussion has occurred. In the circumstances of this case, the panel is satisfied that the evidence establishes, on a balance of probabilities, that the worker suffered a head injury as a result of her March 23, 2018 workplace accident and continued to suffer ongoing symptoms beyond November 1, 2018 as a result of her injury.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered a loss of earning capacity and required medical aid beyond November 1, 2018 as a result of her March 23, 2018 workplace incident. The panel therefore finds that the worker is entitled to wage loss and medical aid benefits after November 1, 2018, and returns the file to the WCB to address the issue of the benefits which the worker is entitled to after November 1, 2018.

The worker's appeal is therefore allowed.

Panel Members

M. L. Harrison, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 29th day of March, 2021