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 further benefits after May 27, 2020 in relation to the February 11, 2020 accident. A teleconference hearing was held on November 25, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits after May 27, 2020 in relation to the February 11, 2020 accident.

Decision

The worker is entitled to further benefits after May 27, 2020 in relation to the February 11, 2020 accident.

Background

On February 25, 2020, the worker filed a Worker Incident Report with the WCB indicating injury to their neck, shoulder and knees in an incident at work on February 11, 2020 when they slipped on some stairs and fell while on their way to the worksite. The worker noted in the Report:

When I fell I held on the rail, my purses, keys and glasses went flying. I twisted my leg during the fall and I banged my head on the wall.

I had finished my shift, but I sat there for about 15 min because I was shaky. Then I drove home but I had to stop, because I had a pounding headache.

The worker attended for medical treatment at a local walk-in clinic the following day complaining of a headache, back pain and neck pain. The physician noted the examination was normal and recommended the worker follow-up with their family physician. The worker continued working regular duties on a casual basis until they could see their family physician on February 24, 2020.

The treating family physician noted the worker was tender over the neck area with limited range of motion due to pain, but full range of motion noted in both knees. The physician diagnosed a soft tissue injury and mild concussion, recommending treatment with ice, anti-inflammatory medication, physiotherapy and one week off work.

At an initial physiotherapy assessment on February 25, 2020, the worker reported experiencing a stiff neck, headaches, left shoulder pain, tenderness where they hit their head, left knee pain and stiffness and dizziness for a few days following the accident. The physiotherapist provided a diagnosis of a shoulder/neck sprain/strain, knee strain and queried a possible medial collateral ligament (MCL) strain and recommended restrictions.

The WCB provided the restrictions to the employer on March 3, 2020 and accepted the worker’s claim on March 4, 2020. On March 11, 2020, the worker advised the WCB that they started a new job with a different employer on March 10, 2020.

On March 11, 2020, the worker attended another physiotherapy session. The physiotherapist noted the worker’s complaints of mild neck stiffness, tenderness where they hit their head and that their knee was very painful and stiff, making it hard to walk or bend the knee. Restrictions were recommended for a further two weeks and these were provided to the employer.

The worker advised the WCB on April 21, 2020 they were in a lot of pain and their neck was hurting a lot but could not see their physiotherapist due to Covid-19 related restrictions. On April 27, 2020, the worker advised the WCB that they had taken a leave of absence from the employer and then began the new position with another employer on March 10, 2020. As the worker was unable to perform some duties of the new position, they were doing a lot of computer work and sitting for long periods of time, resulting in pain in their neck, radiating into their head. The same day, the WCB spoke to the worker’s current employer to confirm they were aware the worker was having issues at work due to pain and provided the new employer with the worker’s restrictions.

The worker attended a virtual care appointment with her family physician on April 27, 2020. The physician noted the worker’s report of headache and pain over the worker’s neck, with continued back and knee pain and further noted the worker still could not attend physiotherapy due to Covid-19. The physician recommended the worker remain off work for two weeks. At a further follow-up on May 8, 2020, the worker’s treating family physician referred the worker for a CT scan. The CT scan conducted on May 12, 2020 noted no acute abnormality.

The WCB requested information from the worker’s current employer and on May 13, 2020, received a job description and work expectations for the worker’s new position.

On May 19, 2020, a WCB medical advisor reviewed the worker’s file and provided that “Considering the nature of the reported MOI (mechanism of injury), acute symptoms, and demonstrated functional abilities in the days immediately post injury, the injury-related diagnoses were likely scalp contusion, neck and back strains, and left knee strain.” The WCB medical advisor stated the typical recovery for sprain/strain injuries and contusions was gradual over a period of a few days to a few weeks and noted that physiotherapy could be helpful during that period but was not typically required. The medical advisor opined the worker’s current presentation of neck and headache pain requiring time away from work three months after the workplace injury of February 11, 2020 was not medically accounted for based upon the accepted diagnosis. Further, based on the medical information on file, the WCB medical advisor concluded the worker’s condition did not meet the WCB’s criteria for a diagnosis of a concussion.

The WCB advised the worker that it had determined that they had recovered from the workplace injury, based on the mechanism of injury, the worker’s ability to continue to perform regular duties two weeks following the injury, and then to begin a new position for seven weeks, the accepted diagnosis of sprain/strain and a contusion injury, and the typical recovery period for such injuries.

The worker contacted the WCB on May 27, 2020 to advise they sought treatment with a physiotherapist trained to treat concussions. The May 27, 2020 Physiotherapy Initial Assessment noted a diagnosis of a cervical spine sprain/strain causing cervicogenic headaches and mild ocular deficits following a concussion. The WCB medical advisor reviewed the worker’s file and the physiotherapy report on May 29, 2020 and on the same date, the WCB advised the worker there would be no change to the WCB’s earlier decision as the new medical information submitted did not provide evidence of “…a diagnosis beyond non-specific neck pain and headache.”

On June 11, 2020, the worker requested Review Office reconsider the WCB’s decision that there was no entitlement to further benefits, noting they had not fully recovered from the workplace accident and required further physiotherapy treatment.

Review Office determined on June 19, 2020 the worker was not entitled to benefits beyond May 27, 2020, relying upon the opinion of the WCB medical advisor that the worker’s current difficulties and diagnosis of concussion could not be medically accounted for in relation to the workplace accident that took place over three months prior, and which the WCB had accepted as soft tissue injuries. Review Office concluded the worker did not have a need for further treatment related to the February 11, 2020 workplace accident.

The worker filed an appeal with the Appeal Commission on July 10, 2020. A teleconference hearing was arranged for November 25, 2020.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On April 9, 2021, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

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.

A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Under s 4(2), 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.

When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid as a result of an accident, compensation is payable under s 37 of the Act. With regard to wage loss benefits, s 39(2) of the Act sets out that such benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years.

Medical aid is provided for under s 27 of the Act which 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.

Worker’s Position

The worker appeared in the hearing on their own behalf, providing an oral submission to the panel and testimony through answers to questions posed by members of the appeal panel.

The worker’s position is that as a result of the injuries sustained in the compensable workplace accident of February 11, 2020, they suffered a concussion and continued to experience symptoms and required treatment arising out of that head injury, diagnosed as post-concussion syndrome, beyond May 27, 2020. As they had not recovered from their injuries by that date and continued to require treatment beyond May 27, 2020, the worker’s position is that they are entitled to further benefits after May 27, 2020 in relation to the February 11, 2020 accident.

The worker noted in their submission to the appeal panel that they were unable to continue and complete treatment of the injuries arising out of the workplace accident as in-person physiotherapy treatments were suspended in late March 2020, due to the Covid-19 pandemic restrictions.

The worker explained to the panel that after the injury occurred, they took a leave of absence from the accident employer to allow for a period of rest and recovery prior to beginning their new job with a new employer, which commenced on March 10, 2020 with an initial five-day period of training. As a result of the pandemic declaration shortly thereafter, the worker’s job duties and role were changed from an active physical position working with people to more sedentary, desk-based duties until May 2020.

The worker testified that at the March 11, 2020 physiotherapist appointment, there was some improvement, noting that physiotherapy helped with the symptoms arising out of the compensable injury. The next physiotherapy appointment was on April 24, 2020 at which time a home program was provided. When the worker saw their doctor on May 8, 2020, an MRI was ordered. After the MRI study, the worker was referred to a neurologist specializing in concussion treatment, who further referred the worker to a concussion physiotherapist. The worker began treatment with the concussion physiotherapist in May 2020 and that treatment is ongoing. The worker described their current symptoms as follows:

“Well, I have headaches. I have a sore neck. I have a sore knee. My knee has never ever like recovered from that injury. My headaches come and go. I can't sit for a long time. I can't stand for a long time. My head hurts. And I told the physiotherapist that if I could afford to go see him more often I would. Unfortunately, I can't, so therefore, I suffer every single day with headaches and sore neck.”

On questioning by panel members, the worker confirmed that immediately following the accident, they were feeling shaky and experienced headache. When the worker was driving home from work that day, they travelled about halfway and then called their spouse to help them get home. The worker recalled seeing another physician for treatment as their own doctor was not available, and then following up with their doctor on February 24, 2020 due to symptoms of pain in their neck and head, nausea and dizziness. The worker indicated that the dizziness and nausea continued, and that this was recorded in the physiotherapy notes as well, as sometimes it occurred during treatment.

The worker described to the panel that their symptoms of stiffness in the neck, shoulder and leg and headache were exacerbated by sitting still during training for their new job. The worker continued with treatment by the initial physiotherapist until the neurologist referred them to the concussion-focused physiotherapist.

In sum, the worker’s position is that they continued to experience symptoms arising out of the compensable workplace injury beyond May 27, 2020 and that further treatment was required beyond that date to provide relief from those symptoms and to move them toward recovery. For this reason, the worker stated, the appeal should be granted.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The issue for determination on appeal is whether the worker is entitled to benefits beyond May 27, 2020 in relation to the February 11, 2020 accident. In order to grant the worker’s appeal, the panel would have to determine that as a result of the compensable workplace accident, the worker continued to require medical aid to cure and provide relief from that injury or continued to experience a loss of earning capacity as a result of that injury. For the reasons set out below, the panel was able to make such findings.

The worker’s position, as set out in their submission and in the answers to the questions asked by members of the appeal panel, is that they had not recovered from the compensable injuries sustained in the workplace accident of February 11, 2020 by May 27, 2020, and therefore, they should be entitled to further benefits.

The panel heard from the worker that they were referred to a neurologist in May 2020 and then, further, to a physiotherapist specializing in concussion treatment in late May 2020. The concussion focused physiotherapy had only just begun at the time that the WCB determined that the worker should have recovered from the compensable workplace sprain/strain and contusion injuries.

The panel reviewed the medical reports arising from the worker’s accident of February 11, 2020 and noted that, although the WCB did not accept that the worker sustained a concussion as a result of the fall, the worker reported striking their head in the fall and the medical reporting confirms the worker noted symptoms potentially related to a head injury, including nausea, dizziness and headache from the first clinical assessment and ongoing through the spring of 2020. This is documented by the worker’s primary care physician, the initial physiotherapist, the neurologist and the concussion physiotherapist.

The panel reviewed and considered the May 22, 2020 report of the neurologist who assessed the worker on May 21, 2020. Noting the worker was injured in a fall in February 2020 and sustained a head injury at that time, the neurologist reported that the worker “...continues to have persistent post-concussion symptoms. [Their] predominant symptoms are nausea, difficulty with sleep as well as sensitivity to light. [They] also continues to have headaches that are bifrontal and occipital in occasion, but denies any weakness or numbness.” The neurologist outlined the results of the clinical assessment and concluded that the worker met “...the clinical criteria for persistent post-concussion symptoms and associated cervical spine dysfunction.” For treatment of the worker’s persistent nausea and neck pain, the neurologist referred the worker to the concussion physiotherapy and daily aerobic exercise. The neurologist also recommended a trial of a medication to address the worker’s persistent headaches and potentially a further referral to a headache neurologist for further evaluation. A gradual return to work was recommended when the worker’s symptoms improved.

The panel also considered the initial assessment report from the concussion physiotherapist, dated May 27, 2020. That report contains a diagnosis on completion of assessment of “cervical spine sprain/strain causing cervicogenic headaches, mild ocular deficits following a concussion.” The physiotherapist recommended treatment for 4-6 weeks at 2-3 times each week, as well as providing a home program to the worker. The physiotherapist recommended the worker remain off work for two weeks and then begin a gradual return to work.

The panel reviewed the follow up chart notes from the neurologist who assessed the worker by telephone on June 12, 2020, noting that there was some improvement in symptoms with the new physiotherapy but that the worker continued to report persistent headache. The chart notes indicate the worker was at that time engaged in a return to work at two days per week at that time with plans to increase to three days per week in the following week.

The panel noted that the WCB medical advisor opinion of May 29, 2020 considered the concussion physiotherapist’s May 27, 2020 report and concludes that there is “...no compelling evidence of a diagnosis beyond non-specific neck pain and headache” and that the effects of any cervical sprain/strain injury sustained on February 11, 2020 would have “materially resolved” by this date.

In respect of the WCB medical advisor’s finding that there was “no compelling evidence” of diagnosis other than non-specific neck pain and headache, the panel noted that the reports from the treating neurologist were not provided to the WCB prior to the determination that the worker’s injury should have materially resolved by late May 2020 but were obtained at the panel’s request.

The panel accepts and finds that as a result of the compensable workplace accident, the worker sustained a head injury more significant than just a contusion or soft tissue injury, in addition to the accepted injuries to the worker’s neck, back and knee. In making this finding, the panel noted in particular the February 24, 2020 diagnosis of mild concussion provided by the worker’s treating physician, as well as the evidence of the treating neurologist.

The panel gives significant weight to the opinion of the neurologist, dated May 22, 2020, noting that this opinion was based upon a clinical assessment of the worker as well as the review of the worker’s clinical history with respect to the injury sustained on February 11, 2020. On the basis of this opinion, which is further supported by the subsequent assessment of the concussion physiotherapist, the panel accepts the diagnosis of “persistent post-concussion symptoms and associated cervical spine dysfunction” and finds that evidence supports a conclusion that this diagnosis arose out of the compensable workplace accident of February 11, 2020.

Based on evidence before us, the panel finds, on a balance of probabilities, that the worker continued to require medical treatment and to experience a loss of earning capacity beyond May 27, 2020 as a direct result of the injury incurred in the workplace accident of February 11, 2020.

Therefore, the worker is entitled to further benefits after May 27, 2020 in relation to the February 11, 2020 accident. The worker’s appeal is granted.

Panel Members

K. Dyck, Presiding Officer
R. Campbell, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 19th day of April, 2021