The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility was not accepted for a diagnosis of concussion resulting from the October 10, 2019 accident. A videoconference hearing was held on May 26, 2021 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for a diagnosis of concussion resulting from the October 10, 2019 accident.

Decision

Responsibility should be accepted for a diagnosis of concussion resulting from the October 10, 2019 accident.

Background

The employer filed an Employer’s Incident Report with the WCB on November 25, 2019, reporting the worker was in a motor vehicle accident on October 10, 2019 and injured their head, abdomen and right hand after their “…tractor trailer rolled over after getting into ditch (sic).” The WCB contacted the worker on December 2, 2019, advising they required further information to proceed with the claim. The worker attended at the WCB in person on December 6, 2019 where they were advised they needed to complete a Worker Incident Report in order to proceed with their claim.

On February 19, 2020, the worker again attended at the WCB in person and completed a Worker Incident Report indicating they injured their head, left side of their chest and right hand as the result of a motor vehicle accident at work on October 9, 2018. In a later discussion on March 2, 2020, the date of accident was confirmed to be October 10, 2019.

The Emergency Triage record from the hospital the worker was taken to immediately after the accident, indicated emergency medical services (“EMS”) personnel reported the worker lost control of the truck they were driving and rolled the vehicle. They advised the worker was restrained by their seat belt, complaining of neck tenderness and mid-thoracic pain. It took approximately ten minutes for EMS personnel to extract the worker from the vehicle. They noted the worker may have been unresponsive initially but remembered the accident and emergency crews arriving. The record notes the worker was alert, complaining of headache and pain to bilateral shoulders. A cervical collar was applied, and EMS staff also noted the worker was “Vitally stable during transport”.

The emergency department chart notes indicate the worker reported “Some amnesia following accident while waiting for EMS, but remembers accident and events leading up” and complained of bilateral shoulder pain and a mild headache. The emergency physician recorded findings of “Midline c-spine (cervical spine) tenderness to palpation. Pain to palpation of both shoulders and across L (left) anterior chest along path of seatbelt. ROM (range of motion) normal to both shoulders. NV (neurovascular) intact x 4 extremities with full strength throughout.” The worker was treated for a laceration on their right hand caused by a glass fragment. A CT scan of the worker’s cervical spine and brain conducted the same day ruled out a neck injury with “No acute intracranial or cervical spine abnormalities” identified.

When the WCB contacted the worker on March 2, 2020, to discuss their claim, the worker confirmed the accident resulted in left side rib pain, right hand bleeding and left side head pain. Further, the worker reported that for a few seconds after the accident they were unable to see anything and lost consciousness for a few seconds but did not experience any nausea or vomiting. The worker confirmed being assessed at the emergency department and later following up with their family physician, who recommended they remain off work. The worker advised the WCB they attempted a return to work in February 2020 but stopped working again due to pain in their ribs. The worker reported ongoing pain while sleeping on their left side and difficulty putting on a seat belt. The WCB accepted the worker’s claim on March 10, 2020.

A WCB medical advisor reviewed the worker’s file to determine if the worker should be referred for an expedited concussion assessment and provided a memo to file on March 31, 2020. The advisor spoke with the worker’s treating family physician on March 25, 2020, who reported the worker’s neck and chest pain had improved; however, the worker continued to report headache and dizziness, and as a result the treating physician recommended the worker to remain off work. The WCB medical advisor was of the view there was insufficient medical evidence to establish the worker sustained a concussion as a result of the workplace accident.

Additional medical information was received by the WCB on March 31, 2020, from the worker’s treating family physician including chart notes from October 14, 2019 to March 10, 2020 as well as a Progress Report dated April 1, 2020, received on April 4, 2020. The WCB medical advisor reviewed the additional medical information on April 21, 2020. The WCB medical advisor

concluded the worker’s initial diagnoses related to the workplace accidents were a right hand laceration, left anterior chest contusion and a cervical strain with recovery for each diagnosis between one to eight weeks. The advisor went on to opine those diagnoses were no longer medically accounted for as the worker’s treating family physician had reported material resolution to all. With regard to the diagnosis of a concussion, the WCB medical advisor reviewed the medical information in closest proximity to the workplace accident and found the treating emergency physician did not note any concern of the worker having a head injury and no diagnosis of a concussion was provided. Further, a healthcare report provided to the worker’s automobile insurer on October 14, 2019 did not note a head injury or loss of consciousness. Accordingly, the WCB medical advisor determined they could not establish the worker sustained a concussion from the workplace accident.

On April 28, 2020, the WCB advised the worker their entitlement to benefits ended December 5, 2019, as it was determined they recovered from the compensable injuries by that date. The WCB advised the worker that a WCB medical advisor could not establish a diagnosis of a concussion related to the compensable accident and therefore that diagnosis was not accepted by the WCB.

After a request for review by the worker, Review Office found on August 4, 2020 that the worker was entitled to benefits after December 5, 2019 and returned the file to the WCB’s Compensation Services for further adjudication. Upon further review of the worker’s file, the WCB advised the worker on August 26, 2020 that they were entitled to benefits up to and including December 28, 2019 and that a concussion diagnosis was not accepted by the WCB.

The worker requested reconsideration of the WCB’s decision to Review Office on September 12, 2020. In their submission the worker noted they continued to suffer the effects of the workplace accident including frequent headaches, drowsiness, nausea and seeing flashes of light and believed they should be entitled to further benefits.

On October 2, 2020, Review Office found the worker required further medical treatment and had a further loss of earning capacity, and therefore was entitled to benefits after December 28, 2019. Review Office returned the worker’s file to the WCB’s Compensation Services for further adjudication. Review Office accepted and relied on the opinion of the WCB’s medical advisor that a diagnosis of a concussion could not be medically accounted for in relation to the workplace accident.

The worker filed an appeal with the Appeal Commission on January 19, 2021. A videoconference hearing was arranged and held on May 26, 2021.

Reasons

Applicable Legislation

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 with the assistance of an interpreter.

The worker’s position is that as a result of the compensable workplace accident of October 10, 2019, they suffered injuries including a concussion, and while the other injuries to the worker’s body and hand have healed, they continue to experience symptoms of headache and dizziness related to the concussion. As a result of their injuries, including the concussion, the worker experienced a loss of earning capacity and requires ongoing medical aid. The worker submitted that the diagnosis of concussion arose out of the compensable accident and therefore the WCB should accept responsibility for that diagnosis as resulting from the accident of October 10, 2019.

The worker described to the panel what they recall of the accident that resulted in their injuries on October 10, 2019. The worker said it was a really bad accident resulting in the vehicle rolling over and the worker left hanging in their seat, suspended by the seat belt. The worker stated they could not fully remember what happened, but that they remember the windshield was broken, and the seatbelt had to be cut to remove them from the vehicle. They were taken by ambulance to hospital for assessment and treatment. On discharge the same day, the worker was advised to see their own doctor for follow up.

The worker described their symptoms following the accident to the panel. The worker described bleeding from their hand, feeling confused and that their head felt very heavy. On questioning by the panel, the worker explained that a heavy head meant continuous headache, and that their headache was helped by use of pain medication. The worker could not say if they lost consciousness but noted a feeling of darkness and that they could not see anything. Since the accident, the worker continues to feel dizziness and some head pain when looking over their shoulders, getting up from a supine position or engaging in activity that requires more energy.

The worker advised the panel that before being involved in a second (non-compensable) motor vehicle accident in late April 2020, their symptoms in the shoulders and back were improved but the headache continued. After that accident, the worker again experienced increased shoulder and back pain, with continuing headache, all of which resolved except for the headache, within three months.

The worker confirmed to the panel that due to ongoing symptoms of dizziness they have not been able to return to their pre-accident occupation since the workplace accident.

In sum, the worker’s position is that the symptoms of headache and dizziness, diagnosed by the treating family physician as concussion, arose out of and are the direct result of the compensable workplace accident of October 10, 2019. For this reason, the WCB should accept responsibility for the diagnosis of concussion as a result of the accident of October 10, 2019, and the worker’s appeal should be granted.

Employer’s Position

The employer did not participate in the hearing.

Analysis

The issue for determination on appeal is whether the WCB should accept responsibility for the diagnosis of concussion as a result of the accident of October 10, 2019. In order to grant the worker’s appeal, the panel would have to determine that this diagnosis arose from the injuries the worker sustained in the compensable workplace accident. For the reasons set out below, the panel was able to make such findings.

The panel reviewed the medical reporting from the time of the accident and notes that from the point of first contact with EMS personnel, the worker reported headache, and this has continued throughout the duration of the claim and is ongoing according to the worker’s evidence provided to the panel. Further, there is evidence that at the accident site right after the accident occurred, the worker reported symptoms including some memory loss, a possible loss of consciousness, disorientation as well as headache to EMS personnel. That report also indicates that a cervical collar was applied at the scene. Upon attending the emergency department visit, the examination notes indicate again that the worker reported headache and some amnesia. The assessment there included a CT scan of the worker’s brain and cervical spine.

The worker’s treating family physician’s first report to the WCB indicates assessment of the worker for concussion took place on October 14, 2019, and that the worker reported dizziness and headache among other symptoms. The physician reported the area of injury as “head/neck/chest/rt hand/lower back”. One week later, the objective findings noted in the Progress Report to the WCB include dizziness, confusion, headache, paraspinal tenderness and more. Medical chart notes from the October 31, 2019 assessment by the family physician indicate the worker’s complaint of headache since the accident, noting it “build[s] slowly, fluctuates in severity and [has been] present continuously from (sic) many days.” The worker did not report any nausea, vomiting, photophobia, phonophobia, throbbing pain or aggravation with movement. No neurological deficit was noted, and the worker indicated normal reflexes as well as other normal signs. The physician diagnosed headache/concussion. Similar findings are noted in the worker’s medical chart for subsequent visits to the treating family physician on December 9, 2019, December 17, 2019, February 18, 2020, March 5, 2020, and March 10, 2020. The worker continued to report headache, “foggy mind” despite an absence of clinical findings. On March 10, 2020, the physician prescribed pain medication and “complete mind rest, no computer use” to “get over from (sic) concussion”.

The panel noted that when the WCB medical advisor consulted with the worker’s treating physician on March 31, 2020, the worker’s physician reported that:

• the worker’s neck pain had improved; 

• the worker’s chest pain was getting better and was no longer a medical issue nor barrier to return to work; and 

• the worker continued to report headache and dizziness, such that the physician was of the view the worker should remain off work for this issue and was agreeable to an expedited concussion assessment taking place.

Nonetheless, the WCB medical advisor concluded on March 31, 2020, that there was “insufficient evidence to establish a diagnosis of concussion” at that time and stated that “Ideally a call in examination would be done to clarify this issue but it is not possible.” The medical advisor again reviewed the file on April 21, 2020 and confirmed their opinion that the medical information on file, particularly that closest in proximity to the date of accident, does not establish that a concussion occurred.

The evidence confirms the worker was involved in a second motor vehicle accident on April 26, 2020, unrelated to the workplace accident. Prior to this accident, on April 24, 2020, the worker reported to the WCB case manager that they remained unable to return to work due to concussion, diagnosed by their family physician. The worker reported seeing stars with movement, feeling sleepy and continuing headache. Subsequent medical chart notes from the treating family physician, dated May 1, 2020, indicate that the worker’s symptoms related to concussion/headache/nausea worsened after the second accident. The medical reporting beyond that date indicates continuing symptoms into the fall of 2020. This is consistent with the worker’s evidence provided to the panel of ongoing symptomology.

The panel considered the evidence including the worker’s account of the October 10, 2019 accident and finds that the mechanism of injury described by the worker, and confirmed by the medical and employer reporting, is consistent with an injury that could result in concussion to the worker. The panel also noted the worker’s testimony that the symptoms of headache and dizziness were not present prior to the workplace accident.

While the WCB medical advisor concluded on the basis of the file documents that the evidence did not support a diagnosis of concussion, the medical advisor did not assess the worker for concussion despite recommending that a further assessment take place. The treating family physician who did assess the worker frequently following the accident, came to a different conclusion on the basis of their assessment and maintained that view as outlined by their medical reporting.

Considering all of the evidence before the panel, we are satisfied, on a balance of probabilities that the diagnosis of concussion is accounted for as being related to and arising out of the compensable accident of October 10, 2019.

While there is evidence to suggest the worker’s concussion-related symptoms continued at least until the second motor vehicle accident in April 2020 and may have been exacerbated by that event, the panel has not been asked and is unable to determine, based on the information available to the panel, whether the worker’s concussion is resolved and if so, when that occurred. Any questions as to the worker’s ongoing entitlement to benefits arising out of the accident of October 10, 2019 are referred to the WCB for further adjudication.

The worker’s appeal is granted.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 4th day of June, 2021