Decision #55/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to wage loss and medical aid benefits (other than chiropractic treatment) after July 31, 2018, and chiropractic treatment after August 14, 2018. A teleconference hearing was held on March 3, 2021 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss and medical aid benefits (other than chiropractic treatment) after July 31, 2018 and chiropractic treatment after August 14, 2018.
That the worker is not entitled to wage loss or medical aid benefits, with the exception of chiropractic treatment, after July 31, 2018. The worker is not entitled to chiropractic treatment after August 14, 2018.
On November 3, 2017, the employer submitted an Employer's Accident Report to the WCB, reporting the worker sustained multiple areas of injury at work on November 1, 2017 when he "…lost control of a truck and the box tipped over on its side. Worker was taken to EMS. There was no accurate area for pain or discomfort."
The report from the emergency department where the worker was taken indicated he reported having hit a small snow bank and his heavy truck having flipped to the left side. It was noted a co-worker told him he was unconscious; he did not remember anything after that; and he was now complaining of a mild headache, pain in his left shoulder, left lower ribs and left hip. The worker was said to be "calm, alert, not well oriented" and had a GCS (Glasgow Coma Score) of 14. He was diagnosed with a concussion and strain and soft tissue injuries to his left shoulder, hip and lower rib area. X-rays taken November 1, 2017 showed normal results in the worker's left hip, left rib and chest area and an acromioclavicular subluxation in the worker's left shoulder.
On November 2, 2017, a CT scan was taken of the worker's brain, cervical spine and abdomen/pelvis and indicated no evidence of a cervical spine fracture; no evidence of solid organ injury within the abdomen/pelvis; and focal hypodensity in the right side of the pons, of uncertain etiology or significance. Due to the latter finding, follow-up CT scans were taken of the worker's brain on November 3, 2017. An "…area of relative lucency in the pons…" was again noted, with no other significant intracranial abnormality being identified. The radiologist interpreting the scan indicated:
The findings are not felt to represent to a central pontine myelinolysis, this would be associated with severe neurological issues. In view of its location one would expect to [sic] neurological symptoms. I assume there are no significant neurological issues. This could represent an old infarct although the patient is relatively young.
On November 23, 2017, the worker sought treatment from his family physician, complaining of headaches, neck, left shoulder, arm and chest pain with difficulty breathing. The physician noted the worker had partial paralysis on his left side, tenderness in the neck and back area, with decreased range of motion in his left shoulder, arm and neck, and referred the worker for an MRI.
On November 29, 2017, the WCB spoke with the worker, who confirmed the mechanism of injury. The worker advised he lost consciousness after the accident and did not recall being transported to the local emergency department, only waking up once there. The worker further advised he continued to seek medical treatment and an MRI was pending. His current difficulties were noted to be ongoing pain in his left shoulder, head, rib cage, hip and low back. On December 11, 2017, the WCB advised the worker that his claim was accepted, and payment of wage loss and medical aid benefits commenced.
The worker underwent an MRI of his brain on December 10, 2017. The MRI indicated "Essentially unremarkable examination of the brain. In particular, a lesion within the pons is not demonstrated." An expedited appointment at a concussion program was arranged, and the worker was seen by a concussion specialist on January 3, 2018. The specialist opined:
…the patient endorsed post-concussion symptoms including headache, dizziness, nausea, vomiting, noise sensitivity, light sensitivity, sleep disturbance, fatigue, irritability, feeling depressed, feeling frustrated, feeling forgetful, having difficulty concentrating, taking longer to think, blurred vision, double vision, restlessness and tinnitus. He also reports weakness and numbness involving the left side of his face as well as his left arm and leg. These deficits were present since the accident. He also reports an episode of left eye blindness and worsening left sided weakness and numbness lasting 2-3 minutes that occurred three days ago.
Following his examination of the worker, the concussion specialist opined that the worker met "…the clinical criteria for a work-related concussion. However, his left sided weakness and numbness are not explained by this injury." The concussion specialist suggested the worker proceed with an appointment with a stroke neurologist to investigate these findings.
On January 8, 2018, the worker was seen by the stroke neurologist, who noted that the worker's major concerns were daily headaches and chronic back and neck pain, and opined that the worker's description of his headaches was compatible with migraines, possibly triggered by the workplace accident. The neurologist further opined that "The rest of his symptoms may be explained by post-concussion syndrome and depression. There is no evidence that he has experienced stroke from the [workplace accident]." The neurologist recommended medications and a repeat MRI of the cervical spine.
The worker underwent a further MRI of the cervical spine on January 21, 2018, which showed "No evidence of abnormal osseous or cervical spinal cord signal intensity. No significant central canal or neural foraminal stenosis." The worker also underwent a CT scan of the brain on February 1, 2018, which was noted to be normal.
On February 7, 2018, the worker attended a follow-up appointment with the concussion specialist. The worker reported "…some mild improvement in his symptoms but persistent headaches and neck pain." The specialist noted the diagnostic imaging and testing performed by the worker's other treating healthcare providers, and opined that "…there does not seem to be a clear cause for the patient's left sided weakness which is improving. Given the lack of improvement in his neck discomfort…I will arrange for him to undergo assessment and treatment of his associated whiplash-type injury with physiotherapist…"
On February 16, 2018, the worker contacted the WCB and reported he had a seizure on February 14, 2018 and was taken to hospital by ambulance. The WCB obtained hospital reports relating to the February 14, 2018 attendance. The hospital triage report noted a "remote history of previous sz (seizure) x1 approx 10 years ago." The emergency department physician noted an eyewitness described the worker having a seizure, that the worker thought this was the first one, and no other symptoms were reported. The worker was sent for x-rays of his cervical spine, lumbosacral spine and pelvis, and a CT scan of his brain, all of which were reported to be normal. A referral was made to a neurologist.
At a further follow-up appointment with the treating concussion specialist on February 28, 2018, the specialist advised the worker he "…should not be driving due to the risk of a recurrent seizure" and recommended withdrawal of his driving privileges pending further investigation of his seizures. The concussion specialist also referred the worker for an electroencephalogram (EEG) and recommended the worker make an appointment with a physiotherapist to treat his whiplash-type injury. On March 8, 2018, the worker attended an initial assessment with the physiotherapist, who diagnosed him with a cervical strain/sprain and concussion.
A further hospital report was received indicating that the worker presented to the local hospital on March 31, 2018 with a second seizure, at which time a seizure disorder was diagnosed and medication was prescribed. On April 11, 2018, the worker underwent an EEG, which was interpreted as normal. At a follow-up appointment with the treating concussion specialist on May 10, 2018, the specialist noted that the worker reported he had another unwitnessed seizure the previous Sunday.
On May 15, 2018, the worker attended a call-in examination with a WCB sports medicine consultant. The WCB consultant opined that the worker sustained a probable concussive injury as a result of the November 1, 2017 workplace accident. The consultant opined that the worker's current diagnoses also included "…non-specific, non-radicular neck and low back pain with no associated neurological deficits, as well as a left shoulder AC (acromioclavicular) separation," which injuries appeared to be functionally improving with full resolution anticipated with conservative care. The consultant also noted that the worker's seizure activity was being further investigated by a neurologist and the worker's file should be reviewed again after that assessment.
The worker's appointment with the neurologist took place on June 20, 2018. After reviewing the worker's past medical history and examining him, the treating neurologist opined that the "…cause of the seizure is unclear. There was no evidence of parenchymal damage on the MRI."
On July 12, 2018, the worker's file was reviewed again by the WCB sports medicine consultant, who opined that based on the neurologist's assessment, the cause of the worker's seizures remained unclear and it "…appears medically improbable that a seizure disorder arose in and out of the course of the November 1, 2017 concussive injury…" due to the delay in onset of seizure activity and the absence of confirmed structural injury to the brain. The WCB consultant opined that restriction of the worker's driver's licence at that point, and further restriction of usual activities, would not be medically accounted for in relation to a concussive injury sustained on November 1, 2017.
On July 17, 2018, the WCB's Compensation Services advised the worker's treating chiropractor that responsibility for chiropractic treatment would end as of August 14, 2018. On July 24, 2018, the worker's WCB case manager advised the worker that it had been determined his current difficulties could not be related to the workplace accident, and entitlement to wage loss benefits would end on July 31, 2018. By letter dated July 29, 2018, Compensation Services confirmed that wage loss benefits would end on July 31, 2018, as they had determined he had recovered from the effects of his workplace injuries, and they were unable to accept responsibility for further wage loss, medical treatment and related costs.
On November 1, 2018, a worker advisor representing the worker submitted additional medical information from the worker's treating neurologist and his family physician, as well as two medical articles, and asked that the WCB reconsider the July 29, 2018 decision, noting the medical information supported the worker continued to suffer from the compensable injury and his seizures were related to the workplace accident. On November 5, 2018, the additional medical information was reviewed by the WCB sports medicine consultant, who opined that there were no clinical findings or further investigations supporting a relationship between the worker's seizures and the workplace accident, and the previous opinion was unchanged. On November 15, 2018, Compensation Services advised the worker's representative that there would be no change to the July 29, 2018 decision.
On January 2, 2019, the worker's representative requested that Review Office reconsider Compensation Services' decision. The representative submitted that the worker continued to suffer post-concussion syndrome symptoms and pain in his neck beyond July 31, 2018, both of which were accepted as compensable, and some of the effects of which were still being evaluated. The representative further submitted that due to accident, the worker had lost his licence, which rendered him unable to return to work as a truck driver or heavy equipment operator, leaving him in a loss of earning situation. It was submitted that as the worker had not recovered from his injuries, he was entitled to further wage loss and medical aid benefits.
On February 26, 2019, Review Office determined there was no entitlement to wage loss benefits or medical aid benefits (with the exception of chiropractic treatment) beyond July 31, 2018, and that chiropractic treatment for the worker's lower back should be covered to August 14, 2018. Review Office found that the worker's seizures were not related to the workplace accident, and there was insufficient evidence to support an ongoing need for treatment and/or restrictions related to the compensable diagnosis of a concussion. Review Office found that long-term treatment or permanent restrictions were not required for the diagnoses involving the cervical area. Review Office further found that it was reasonable to cover chiropractic treatment to August 14, 2018 for residual lower back complaints associated with the compensable back injury, but that there was no need for treatment or restrictions for that injury beyond August 14, 2018.
On September 16, 2020, the worker's legal counsel appealed the Review Office decision to the Appeal Commission and a teleconference 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.
The WCB's Board of Directors has established WCB Policy 220.127.116.11, Pre-existing Conditions (the "Policy"), which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The Policy states that the WCB will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.
With respect to wage loss eligibility, the Policy provides that when a worker's loss of earning capacity is caused in part by a compensable injury and in part by a non-compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury.
The worker was represented by legal counsel, who provided a written submission in advance of the hearing and made an oral submission to the panel. The worker was provided with the assistance of an interpreter, and responded to questions from the panel.
The worker's position was that he had not recovered from his workplace injuries and was entitled to wage loss benefits after July 31, 2018 and chiropractic treatment after August 14, 2018.
The worker's legal counsel noted that the worker was injured in a workplace accident on November 1, 2017 and the WCB accepted his claim and provided wage loss benefits until July 31, 2018 and chiropractic treatment to August 14, 2018. Counsel submitted that causation is therefore not an issue; rather the issue is whether the worker is entitled to benefits after these dates.
Counsel submitted that the WCB accepted responsibility for some of the injuries arising out of the workplace accident, but denied responsibility for ongoing symptoms and for seizures. It was submitted that the seizures were and are related to the workplace accident and that the worker had not recovered from the compensable injuries, including his seizures, when his benefits ended.
Counsel submitted that medical evidence supports the worker's position. With respect to the seizures in particular, counsel noted that the worker's family physician has indicated that there is a relationship between the seizures and the injury. In his letter of August 31, 2018 the family physician noted that there was enough evidence that his seizures were the direct result of this accident. In a letter dated August 23, 2018, his treating neurologist also opined that the worker's seizures were related to the accident. In a letter dated August 20, 2020, the family physician noted that the worker had a minor seizure in 2006, but was seizure-free after that until this accident occurred.
It was submitted that the worker lost his driver's licence due to his seizure activity, which seriously impacted his ability to work, and he continued to experience difficulties and post-concussion symptoms beyond the benefit end date.
In response to questions from his counsel at the hearing, the worker indicated that he sustained head, shoulder, neck and back injuries as a result of the workplace accident. He stated that he was 100% healthy before the accident, and had no problems with his daily activities or work. The worker said he has not worked since the accident, and is not able to return to work as his driver's licence was withdrawn and he could fall anytime due to his seizures. The worker said he was not even close to fully recovered in July or August 2018, and has not recovered since. He said his life has changed drastically. He cannot work or do anything, he still has pain in his back and neck and still has seizures.
A statutory declaration was provided in advance of the hearing from a friend of the worker, who also gave evidence at the hearing. The witness indicated that he is a close friend of the worker and has known him since 2008. He said he and the worker did a lot of activities together, and lived across from each other in the same apartment building for four years, from 2008 to 2012. He said the worker was very healthy prior to the accident, but that after the accident he was very much confined to home and would fall when he went out. The witness stated that he had seen the worker having seizures several times, and was present on two occasions, in 2018 and 2019, when the worker had seizures and had to be taken to the hospital.
In conclusion, counsel submitted that even if the worker's loss of earning capacity was caused in part by the compensable injury and in part by a non-compensable condition, the Policy provides that the WCB will accept responsibility for the full injurious result of the compensable injury. In this case, the WCB accepted responsibility for the worker's injuries, which had not resolved at the time his benefits were ended. He is therefore entitled to wage loss benefits beyond July 31, 2018 and chiropractic benefits beyond August 14, 2018, and his appeal should be allowed.
The employer did not participate in the appeal.
The worker is appealing the WCB's decision that he was not entitled to wage loss benefits or medical aid benefits (with the exception of chiropractic treatment) beyond July 31, 2018, and was not entitled to chiropractic treatment beyond August 14, 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 July 31, 2018, or in the case of chiropractic treatment beyond August 14, 2018, as a result of his November 1, 2017 workplace accident. The panel is unable to make that finding, for the reasons that follow.
The worker has an accepted claim for a concussion and a cervical/lumbar strain/sprain injury as a result of his November 1, 2017 workplace accident.
The worker has argued that his seizures were and are related to his November 1, 2017 workplace accident and injuries, and he is entitled to further benefits as he had not recovered from his workplace injuries as at the date his benefits ended.
The worker and his counsel confirmed at the hearing that they attributed his loss of earning capacity or wage loss to his seizures, which included the loss of his Class 1 driving licence as a result of his seizures and the seizures themselves.
The panel accepts that the worker has experienced seizures. The panel is unable to accept, however, that the worker's seizures were or are causally related to his workplace accident or injuries.
In arriving at this conclusion, the panel notes that there was a significant delay of over three months between the onset of the worker's seizures or seizure activity and the November 1, 2017 workplace accident. The evidence thus indicates that the first seizure did not manifest itself until February 14, 2018. In these circumstances, it is much more difficult to link the worker's seizures to his workplace accident.
The panel is satisfied, moreover, that there is an absence of clinical evidence to indicate or support that the worker's seizures were or are linked to his workplace accident or injuries.
The panel notes that the worker and his counsel have argued that the medical evidence supports that his seizures are related to his workplace accident, relying on letters from his family physician and treating neurologist in particular. The panel is unable to place weight on those letters.
In this regard, the panel notes that in his letter of August 31, 2018, the family physician has written that the worker had his seizure in February 2018, subsequent to the injuries he sustained in November 2017, and opines that "There is enough circumstantial evidence to trust that his generalized tonic and clonic seizure are the direct result of his…accident." No clinical evidence was referred to or provided to support this opinion, and in the panel's view, just because the seizure occurred sometime after the accident does not mean, and is not sufficient to establish, that the seizure was causally related to the accident.
In his letter of August 23, 2018, the treating neurologist also noted that the worker had a generalized tonic clonic seizure on February 14, 2018. The neurologist noted that an MRI of the brain and EEG were normal, and stated that he believed "…the seizure was related to the…accident as he was completely healthy before." Again, the panel is unable to accept that this is a sufficient basis to establish that such a seizure was caused by or causally related to the workplace accident more than three months earlier, in the absence of clinical evidence which would support such a relationship.
The panel also notes that these opinions from the family physician and treating neurologist are at odds with the opinion of the treating concussion specialist in his letter of July 30, 2018. In that letter, while deferring to the treating neurologist with respect to recommendations as to the treatment of these "events", the specialist expressed his agreement with the WCB sports medicine consultant that "…given his normal neuroimaging studies and normal EEG…it is unlikely that these clinical events represent post-traumatic seizures."
In summary, based on our review of the evidence which is before us, the panel is satisfied, on a balance of probabilities, that the worker's seizures were not causally related to his November 1, 2017 workplace accident or injuries, and the worker did not suffer a loss of earning capacity beyond July 31, 2018 as a result of his workplace accident.
With respect to medical aid benefits, it was argued at the hearing that the worker was specifically seeking further chiropractic treatment after August 14, 2018. Based on our review of all of the information which is before us, the panel is unable to find that the worker is entitled to further chiropractic treatment.
The panel notes that it was unclear at the hearing what chiropractic treatment was being sought. Information on file indicates the worker had been receiving chiropractic treatment for a lengthy period of time, approximately seven or eight months, at the time his benefits were ended. When asked at the hearing what further chiropractic treatment would be for, the worker's counsel noted that the worker had also sustained some injuries on his shoulder and back at the time of the accident and was being treated for those. Counsel further submitted that the worker was still "under constant pain due to that accident, and that is the reason that he also needs some chiropractic treatment, because they were helping him for years, but now since…the time he has stopped those treatments he's under constant pain…also having some pain, he's also taking some pain medication."
The worker indicated at the hearing that he was still taking medication for his back injury, and that he cannot sleep without taking the medication. He said he had been told there was something wrong with his back and neck, but he did not know what, and he had not been referred to a specialist.
The panel acknowledges the worker's position that he continues to suffer from low back pain and difficulties, but is unable to find that the worker's ongoing difficulties are related to his workplace accident or injuries. The panel accepts the diagnosis of the worker's compensable cervical/ lumbar injury as a sprain/strain injury, and is satisfied that there is an absence of clinical findings or a diagnosis to indicate that the worker suffered anything more serious than a soft tissue injury.
The panel places weight on a July 17, 2018 memorandum to file of a conversation between a WCB chiropractic consultant and the worker's treating chiropractor, which indicated that the worker's injuries have resolved or were resolving, as follows:
[The treating chiropractor] noted that the [worker's] cervical thoracic discomfort issues have for the most have resolved and was still experiencing some lower back discomfort. He did report that the lower back discomfort has improved considerably. We had a discussion regarding the length of time the claimant has been treated. I informed [treating chiropractor] that I would suggest funding for further 4 weeks from the date of the evaluation.
In conclusion, the panel is not satisfied that the worker had ongoing difficulties related to his workplace accident or injuries for which chiropractic treatment was required as at the date his benefits ended, and is unable to find that the worker was entitled to further chiropractic treatment beyond August 14, 2018.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer a loss of earning capacity or require medical aid beyond July 31, 2018, or in the case of chiropractic treatment beyond August 14, 2018, as a result of his November 1, 2017 workplace accident. The worker is therefore not entitled to wage loss benefits or medical aid benefits (with the exception of chiropractic treatment) beyond July 31, 2018, and is not entitled to chiropractic treatment beyond August 14, 2018.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
J. MacKay, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 30th day of April, 2021