The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for the worker’s diagnosis of Paroxysmal Positional Vertigo and associated symptoms as being related to the June 9, 2017 accident. A teleconference hearing was held on June 15, 2021 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for the worker’s diagnosis of Paroxysmal Positional Vertigo and associated symptoms as being related to the June 9, 2017 accident.

Decision

Responsibility should not be accepted for the worker’s diagnosis of Paroxysmal Positional Vertigo and associated symptoms as being related to the June 9, 2017 accident.

Background

On June 21, 2017, the worker filed a Worker Incident Report with the WCB indicating they injured their shoulder, knee and elbow in an incident at work on June 9, 2017 when they slipped at the bottom of a stairwell, twisted their knee and fell backwards, hurting their elbow and shoulder. The worker further reported after getting up from the fall, they fell forward onto their shoulder and heard a “click or popping sound” in their shoulder. The worker also reported slipping but not falling, and then falling again after entering another room. The worker described being in a lot of pain and unsteady and reported the incident to the employer. The worker also reported attempting to seek medical treatment but being advised the treating family physician was on vacation, but they could be seen at a walk-in clinic. The worker noted they continued to experience pain and attended a walk-in clinic for treatment.

A Doctor’s First Report for the worker’s examination on June 21, 2017 was received by the WCB on June 22, 2017. The treating physician noted tenderness in the worker’s right shoulder along with painful limitation of abduction and rotation but noted no distal neurology. An x-ray of the worker’s right shoulder taken that date indicated no fractures, early osteoarthritic changes in the glenohumeral joint, and acromioclavicular joint arthrosis with degenerative cystic changes at the greater tuberosity. The physician diagnosed a traumatic injury to the right shoulder and queried a right rotator cuff tear. The physician also recommended the worker remain off work for one week and referred the worker for an MRI of the right shoulder. The worker saw their family physician on June 23, 2017, complaining of tenderness and pain in their right shoulder, arm and neck with decreased range of motion in all directions. The physician prescribed pain medication and referred the worker for physiotherapy.

The WCB contacted the worker on June 28, 2017 to discuss the claim and at that time the worker confirmed the mechanism of injury and that they attempted to see their treating physician on June 9, 2017 but due to their physician being away, could not, so they attempted to self-treat their pain with medication they already had. When they could not manage the pain with their existing medication, they sought treatment at a walk-in clinic where an x-ray was taken, and the physician recommended they remain off work. The physician also made a referral for an MRI study. The worker advised they followed-up with their treating family physician on June 23, 2017, who recommended they remain off work until a reassessment was done on July 13, 2017 but the worker believed they could work through their pain, so they continued to work while taking prescribed pain medication. An MRI of the worker’s right shoulder conducted on July 12, 2017 indicated a “Small insertional tear anterior supraspinatus”.

The WCB accepted the worker’s claim on August 14, 2017.

On August 16, 2017, the worker attended for an initial physiotherapy assessment. The worker reported to the physiotherapist they had throbbing in their arm with certain positions and reaching. Upon assessment, with positive Speeds and empty can tests, the physiotherapist diagnosed the worker with a right supraspinatus tear. The physiotherapist recommended the worker could return to work on August 21, 2017 with restrictions of no lifting overhead and no carrying greater than 10 pounds.

On August 17, 2017, a WCB medical advisor reviewed the worker’s file and provided an opinion that the current diagnosis in relation to the June 9, 2017 workplace accident was of a right shoulder strain/contusion and noted the treating physiotherapist’s recommended restrictions were appropriate. The employer confirmed they could accommodate the worker and the worker returned to work on August 29, 2017.

On October 18, 2017, the WCB received a progress report from the worker’s treating physiotherapist noting a change to the worker’s diagnosis and indicating the worker “has been experiencing vertigo since accident occurred.” The WCB contacted the worker on October 27, 2017 to discuss the claim. The worker advised the WCB that in July 2017, they started to experience headaches and have balance issues, which they discussed with their treating family physician and physiotherapist. The worker advised their treating physiotherapist felt the vertigo may be related to the workplace accident as “…the crystals in ears become unbalanced.” The worker noted they feel dizzy and unbalanced when rising from sitting or lying down and that their family physician had referred them for a CT scan and to a specialist for the vertigo.

In a narrative report dated November 9, 2017, the treating physiotherapist indicated the worker “…reported symptoms of dizziness on initial assessment, made worse with cervical range of motion testing and with position changes from standing to lying down” and noted a diagnosis of BPPV (benign paroxysmal positional vertigo), with subjective complaints of dizziness with position changes or head movements and objective findings of dizziness and loss of balance with cervical rotation to left side and with extension. The physiotherapist also noted that due to the nature of the worker’s injury, “...a fall with a possible impact of the head, it is highly possible the dizziness is a result of the workplace injury as a rapid force to the head is a common cause of BPPV.” A progress report from the physiotherapist, received on November 10, 2017, included a change to the worker’s diagnosis to include BPPV.

The worker saw an Ear, Nose and Throat (ENT) specialist on November 22, 2017. The specialist noted the worker’s reporting of slipping and falling backwards and forwards, jarring their body and hurting their knee and right rotator cuff. The ENT specialist noted the worker did not report hitting her head but did report having vertigo and a dull headache since the June 9, 2017 accident. The worker also reported four episodes of double vision to the specialist. Upon examination, the ENT specialist noted a positive Hallpike test in the left ear-down position with the remaining neurological testing unremarkable and an audiogram indicating normal hearing. The specialist opined the worker had “left BPPV secondary to the fall at work” and performed a “particle repositioning maneuver” on the worker.

The WCB spoke with the worker on December 5, 2017 who advised the adjustment performed by the ENT specialist on November 22, 2017 helped, and their dizziness was “90% better” but they continued to have headaches.

On February 23, 2018, a WCB medical advisor reviewed the worker’s file and noted that the diagnosis related to the dizziness and headaches provided by the worker’s treating physiotherapist and ENT specialist was of BPPV, based on the worker’s reported symptoms of dizziness and vertigo and a positive Hallpike test noted by the ENT specialist. The medical advisor concluded the BPPV diagnosis was not related to the June 9, 2017 workplace accident as there was no reporting of a head injury at the time of the accident with the first report of vertigo occurring in October 2017, four months after the workplace accident. The medical advisor further noted that had the workplace accident resulted in the development of BPPV, the worker would have had immediate onset of associated symptoms.

On March 6, 2018, the WCB advised the worker the diagnosis of BPPV was not accepted in relation to the June 9, 2017 workplace accident.

The worker submitted a detailed chronology of the events of the workplace accident and their treatment after the accident to the WCB on March 9, 2020 and on March 10, 2020 was advised the information submitted did not provide any new information for the worker’s file and there would be no change to the WCB’s earlier decision.

The worker requested reconsideration of the WCB’s decisions to Review Office on April 8, 2020. In their submission to Review Office the worker listed their treating healthcare providers and advised Review Office their coworkers were aware of their difficulties due to the BPPV diagnosis. Review Office contacted the worker on May 4, 2020 for further information and the worker provided Review Office with contact information for their coworkers. On May 5, 2020, the WCB received a copy of the worker’s January 23, 2020 vestibular test which indicated “The caloric response is reduced bilaterally. This may result from CNS (central nervous system) dysfunction, medication effects, bilateral ear disease or ototoxicity.”

Review Office requested a WCB medical advisor review the vestibular test along with the worker’s file and on May 11, 2020, the medical advisor noted agreement with the February 23, 2018 WCB medical advisor’ opinion and further provided that BPPV does not cause headaches or migraines, double vision is not a symptom of BPPV, and the medication prescribed to the worker was not used to treat BPPV. The WCB medical advisor also noted with respect to the vestibular testing “The caloric test measures the inner ear response to thermal stimulation (hot and cold water irrigation). The worker’s caloric testing revealed a reduced response bilaterally. This is suggestive of a central nervous system dysfunction, bilateral ototoxicity from ototoxic antibiotics or chemicals or bilateral ear disease.”

Review Office spoke with one of the worker’s coworkers on May 11, 2020 who advised that within days after the worker’s return to work following the accident, the worker reported headaches and feeling dizzy at times, and that due to those symptoms, they drove the worker to meetings when the worker felt unable to drive themself.

Review Office determined on June 22, 2020, the worker’s diagnosis of benign paroxysmal positional vertigo was not a compensable condition, relying upon the opinions of the WCB medical advisors on the worker’s file to find that a connection between the worker’s diagnosis of BPPV and the June 9, 2017 workplace accident could not be established.

The worker filed an appeal with the Appeal Commission on January 5, 2021. A teleconference hearing was arranged for June 15, 2021.

Reasons

Applicable Legislation and Policy

As the worker was employed by a federal government agency or department, his claim is adjudicated under the Government Employees Compensation Act (the "GECA"). Section 4(1) of the GECA provides that an employee who is caused personal injury by an accident arising out of and in the course of their employment is entitled to compensation.

"Accident" is defined in s 2 of the GECA to include "a wilful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause." Section 4(2)(a) of the GECA provides that a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker who is covered under The Workers Compensation Act (the "Act").

The Appeal Commission and its panels are bound by the provisions of the Act, regulations under that Act and the policies established by the WCB's Board of Directors.

The Act sets out the definition of an accident in s 1(1) as follows:

"accident" means a chance event occasioned by a physical or natural cause; and includes 

(a) a wilful and intentional act that is not the act of the worker, 

(b) any 

(i) event arising out of, and in the course of, employment, or 

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and 

(c) an occupational disease, 

and as a result of which a worker is injured….

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, provided the injury results 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 and made an oral submission as to why the appeal should be allowed. The worker also provided testimony through answers to questions posed by members of the appeal panel.

The worker’s position is that as a result of the workplace accident of June 9, 2017, they sustained injuries including untreated concussion and Paroxysmal Positional Vertigo (“PPV”). The worker’s position is that due to the jarring, forward and back motions resulting from the multiple falls on June 9, 2017, they developed symptoms of headache and dizziness, with occasional double vision, that were ultimately diagnosed in late 2017 as PPV or benign PPV (“BPPV”).

The worker’s evidence, on questioning by panel members, is that immediately following the injury they felt “unsteady” and reported this to the employer. The worker confirmed that the employer’s critical incident report is not available to support this statement.

The worker also testified as to their belief that initially, their symptoms were “masked” by the pain relief medication prescribed and taken to address pain in their shoulder, but that as the shoulder pain eased after a few weeks, the worker reduced their reliance on pain medications and then began to notice the headache symptoms. The worker noted that they have a history of some migraine headaches, but that these headaches occurred mostly when they were younger and more recently have occurred only occasionally, often related to changes in weather or storm activity. The worker noted that their migraine headaches entail pain behind their eyes, whereas the post-accident headaches feel “like a horseshoe tightening” in their head. The worker described daily headaches after the accident, now decreased to 2-3 times weekly, as well as waking with a feeling of dizziness.

The worker stated that they advised their treating physician about the symptoms of dizziness in early July, resulting in a referral to the ENT specialist and the referral for an MRI.

In response to questions by panel members, the worker indicated that they went to work the next day after the accident but left early and went to see their family physician, who was away. They then went to a walk-in clinic, possibly the next day.

The worker described to the panel that it seemed their symptoms worsened on return to work, noting that their job is stressful and requires concentration which was difficult post-accident. As a result of these symptoms, the worker sometimes required assistance in driving to and from meetings at other job locations. Such assistance was never required prior to the accident.

The worker advised the panel that this condition has changed their life in that their activity now depends upon and varies with appearance of symptoms. The worker indicated that they make adjustments in their day to day activities to compensate for feeling dizzy, and that they continue to use at-home treatment therapies to manage the vestibular symptoms. The worker advised the panel that as a result of their continuing dizziness they have had multiple falls, including a fall in their driveway in 2018.

In sum, the worker’s position is that the diagnosis of PPV is the result of the compensable workplace accident of June 9, 2017 and therefore the WCB should be responsible for the treatment of that condition which continues to impact the worker’s day to day life.

Employer’s Position

The employer did not participate in the hearing.

Analysis

The issue before the panel on appeal is whether or not the worker’s diagnosis of Paroxysmal Positional Vertigo (“PPV”) and associated symptoms is related to the June 9, 2017 workplace accident. In order to grant the worker’s appeal, the panel would have to find that this condition was caused by and resulted from the compensable workplace accident. For the reasons outlined below, the panel was unable to make such a finding.

The panel noted that the WCB accepted the worker’s claim on the basis of a compensable diagnosis of right shoulder strain/contusion as set out in the August 16, 2017 opinion of the WCB medical advisor. At that time, the medical advisor noted that any additional diagnosis was “not apparent” but that a “component of the small tear of the rotator cuff seen on MRI might relate to the effects of” the compensable injury although there was also evidence of pre-existing degeneration at that area.

The worker also made submissions to the panel regarding a possible diagnosis of concussion arising out of the same accident, but the panel notes that the WCB has not made any determinations regarding such a diagnosis and there is a lack of evidence in the file to support that such a diagnosis has been made. The panel therefore makes no findings in respect of these particular submissions.

In reviewing the medical information in respect of the specific question on appeal, the panel considered whether there was any evidence to support the worker’s position that the diagnosis of PPV arose from the injuries sustained in the compensable accident.

The first medical report, from the worker’s visit to a walk-in clinic on June 21, 2017, twelve days after the injury occurred, records only issues relating to the worker’s right shoulder and diagnostic imaging from that date rules out any fractures in the right shoulder area. When the worker saw their own family physician on June 23, 2017, two weeks after the injury, the physician reported examination findings related only to the worker’s right shoulder and upper neck. The worker was subsequently referred for an MRI study of their right shoulder, which was undertaken on July 12, 2017. A doctor progress report dated August 14, 2017 provided information on the newly discovered tear in the worker’s rotator cuff area. When the worker was assessed for physiotherapy on August 16, 2017, the physiotherapist reported only symptoms, assessment and restrictions relating to the worker’s right shoulder. The worker’s family physician assessed the worker again on August 24, 2017 and reported ongoing issues of concern regarding the worker’s right shoulder but also indicated the worker could return to work with restrictions as of August 28, 2017. The treating physiotherapist provided a progress report on September 1, 2017 noting no change in diagnosis and reporting only shoulder symptoms, findings and treatment.

On October 18, 2017, the treating physiotherapist reported to the WCB a change in the worker’s diagnosis, indicating the worker had vertigo since the accident. In follow up to this report, the worker advised the WCB on October 27, 2017 that they started to experience headaches and have balance issues in July, which they discussed with their treating family physician and physiotherapist. The worker advised that the physiotherapist felt the vertigo may be related to the workplace accident and that their family physician had referred them for a CT scan and to a specialist for the vertigo. The file contains a November 6, 2017 CT scan report of the worker’s brain that references the clinical history provided on referral of vertigo since June 2017, mainly with turning to the left as well as three incidents of vision issues. The CT was requested by the worker’s treating family physician (date of referral not noted) and indicates comparison with a prior CT of the worker’s brain on August 28, 2011 and an MRI study of June 28, 2006.

The treating physiotherapist’s letter to the WCB of November 9, 2017 set out that the worker “reported symptoms of dizziness on initial assessment, made worse with cervical range of motion testing and with position changes from standing to lying down.” The physiotherapist outlined objective findings of “Dizziness and loss of balance with cervical rotation to the left side and with extension. Head and neck differentiation test was negative for cervicogenic dizziness.” The physiotherapist also reported they recommended the worker speak with their general practitioner about this and made further treatment recommendations. The physiotherapist speculated that due to the nature of the worker’s injury “...a fall with possible impact of the head, it is highly possible the dizziness is a result of the workplace injury as a rapid force to the head is a common cause of BPPV [benign PPV]”.

The physiotherapist’s November 10, 2017 report to the WCB includes a new diagnosis of dizziness due to possible BPPV. In the December 28, 2017 physiotherapy report based upon the December 6, 2017 examination, the physiotherapist noted the worker’s dizziness was much improved with exercises. Subsequent physiotherapy reports indicate further improvement over time.

The worker was referred for treatment by the general practitioner to an Ear, Nose and Throat (“ENT”) specialist who saw them on November 22, 2017. The ENT specialist noted in providing a patient history that the worker had a fall on June 9, 2017 in which they slipped and fell backwards and forwards, jarring their body but did not bang their head. The worker reported vertigo since then that arises based on their position. The worker denied hearing loss but also noted occasional tinnitus, a dull headache since the fall and four episodes of double vision. The ENT specialist recorded a positive Hallpike test in the left ear down position and an otherwise unremarkable neurotological examination and diagnosed “left BPPV secondary to the fall at work” which was treated with a particle repositioning maneuver.

The worker’s treating family physician provided a progress report to the WCB on December 22, 2017 regarding an examination of the worker on November 28, 2017, reporting the worker continued to experience headaches and vertigo, noting that the worker’s recovery was complicated by the vertigo which was related to the accident. No other information is provided to support this opinion.

The worker was referred for vestibular testing which took place on January 23, 2020. The testing results indicate normal oculomotor and positional tests and abnormal caloric test results described as “The caloric response is reduced bilaterally. This may result from CNS [central nervous system] dysfunction, medication effects, bilateral ear disease or ototoxicity.”

The panel reviewed the opinion provided by the WCB medical advisor on February 23, 2018, noting the medical advisor considered the reporting from the ENT specialist and the treating physiotherapist and stated that it was “Not likely” the diagnosis of PPV was a consequence of the compensable diagnosis given the lack of any record of a discrete head injury, and the first report of vertigo provided some 4 months post-injury. The medical advisor also stated that:

“In general the specific cause of the development of BPPV is poorly determined, and in many cases no specific trigger is recognized. In [the worker’s] case, if the development of BPPV were in some manner related to the fall of June 9 2017 the expectation would have been for immediate onset of associated symptoms. The significantly delayed onset of symptoms attributed to BPPV is therefore not accounted for in relation to the [compensable injury] of June 9 2017.”

Following receipt of the vestibular testing results, the WCB ENT advisor also reviewed the worker’s file and provided an opinion on May 10, 2020. The ENT advisor agreed with the conclusions reached by the WCB medical advisor on February 23, 2018, noting the delayed onset of symptoms of vertigo and that BPPV does not cause symptoms of headache, migraine or double vision.

In response to the WCB medical advisors’ comments regarding delayed onset of symptoms, the worker testified that that their symptoms of dizziness, described initially as feeling unsteady, and headache arose immediately following the accident; however, the panel notes that the medical reporting does not confirm this. Rather, a careful review of the medical reporting indicates the first reference to symptoms of dizziness in the context of the initial physiotherapy assessment on August 16, 2017, although the physiotherapist does not report any such symptoms to the WCB until October 2017. The panel also noted that the worker has at various times indicated the onset of these symptoms immediately following the accident on June 9, 2017, or in July or at the time of physiotherapy assessment.

The panel considered the November 22, 2017 opinion of the treating ENT specialist that the worker’s diagnosis of BPPV is the result of the worker’s June 9, 2017 compensable accident but notes that this opinion is based upon the history the worker provided at that time. The WCB medical advisor and ENT advisor considered not only the information provided by the worker to the ENT specialist but also the entire contents of the worker’s WCB file. The reporting most contemporaneous to the worker’s date of accident, by two different physicians, makes no reference to any symptoms related to the diagnosis of PPV. The panel finds that the worker’s symptoms of dizziness first reported in the context of a physiotherapy assessment no less than ten weeks following the date of injury cannot be related back to the compensable accident. In this regard, we accept and rely upon the opinions of the WCB medical advisor and ENT advisor.

The panel further accepts the opinion of the WCB medical advisor, confirmed by the WCB ENT advisor that PPV can arise without a specific trigger. Although the worker did experience multiple significant falls on June 9, 2017, there are no medical reports to suggest that there were any neurological or vestibular symptoms evident in the weeks immediately following the accident. The panel finds that the report of dizziness to the physiotherapist in August 2017 is too remote in time from the accident to support a conclusion that there is any causal connection.

On considering all of the evidence before us, and on the standard of a balance of probabilities, the panel is not able to determine that the worker’s diagnosis of Paroxysmal Positional Vertigo and associated symptoms is related to the June 9, 2017 accident. The worker’s appeal is therefore denied.

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 28th day of June, 2021