The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to wage loss and medical aid benefits after August 25, 2020. A videoconference hearing was held on August 26, 2021 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after August 25, 2020.

Decision

The worker is entitled to wage loss and medical aid benefits after August 25, 2020.

Background

The worker filed a Worker Incident Report with the WCB on July 14, 2020 reporting injury to their head in an incident at work on July 9, 2020. The worker described the incident as follows:

I was cleaning the window and was wearing my visor hat. I didn't realize that I was under the bar top that I was cleaning. I stood up and hit it hard and fell down. I got a bump on my head and felt queasy after.

The worker had a virtual consultation with their family physician on July 9, 2020, reporting that they hit their head "…hard against the shelf" and as a result had some swelling over the area with pain and a mild headache but no vomiting, loss of vision, numbness or weakness. The worker also noted that their pupils were larger than normal. The physician recorded that the worker "…sounded logical and normal on the phone" with normal insight and judgment and diagnosed a contusion on the face, scalp and neck. The worker had a follow-up virtual visit on July 11, 2020, reporting their face was quite numb but that they had no nausea, fever or chills, could move all their limbs and had worked that day. At a further follow-up virtual visit on July 12, 2020, the treating family physician noted the worker’s headache was improving slightly but the worker found concentrating or reading difficult and reported tingling on their face.

On July 12, 2020 the worker sought emergency treatment reporting increasing symptoms including a headache, pain to the top of their head, feeling off balance, dizzy and unsteady on their feet and sensitivity to light. On examination, the treating emergency physician noted tenderness to palpation at the crown of the worker’s head but no sign of neurologic dysfunction, good hand grip, and ability to answer questions although the worker noted that word-finding was a bit slower. The physician requested an x-ray and CT scan, which both indicated normal findings and diagnosed the worker with concussion, recommending they remain off work for one week. The physician noted the worker had a normal gait, was mobilizing independently, had no cerebellar abnormalities and no amnesia.

The worker sought chiropractic treatment on July 14, 2020 and reported dizziness, disorientation, hypersensitive vision, very bad headache, bad neck pain, some difficulty sleeping, fatigue, tenderness to the top of their head, difficulty findings words and nausea. All range of motion in the worker's neck was indicated to be slow with extreme pain, extreme tension and pain on palpation was noted on the worker's trapezoid and other neck muscles, eye tracking was noted to be difficult and painful for the worker, the worker had difficulty walking and speaking and demonstrated a noticeable light sensitivity. The chiropractor diagnosed whiplash associated disorder and concussion and recommended the worker remain off work for one week.

The WCB contacted the worker on July 15, 2020 to discuss the claim. The worker confirmed how the incident occurred and noted while they continued to work after the incident, as their shift continued, they started to feel nausea and queasiness and neck pain. The worker advised the WCB new symptoms appeared a few days later and included the appearance of walls moving, needing to hold onto things to move around, inability to bend down as it increased the pain in their head, pain at the front of their head, difficulty talking and putting thoughts together and difficulty with balance. The worker confirmed they were advised to remain off work for one week and had not been offered light or modified duties by the employer.

On July 27, 2020, a WCB medical advisor reviewed the worker’s file and concluded the diagnosis related to the workplace accident was a minor head injury/contusion with a neck strain, with the natural history for recovery over a few days to a week or two. The advisor noted the treating emergency room physician provided a diagnosis of a concussion but in the absence of evidence of post-accident amnesia or immediate alteration of the worker’s mental status, and as neurological deficits were not noted, the worker did not meet the WCB criteria for concussion diagnosis. Further, the WCB medical advisor provided total disability was not medically accounted for and no work restrictions were required.

The worker saw their family physician for a follow-up appointment on August 4, 2020. The physician noted the worker was “Still not adequately recovered” and directed the worker to remain off work, not drive or do anything active. At a follow-up physiotherapy appointment on August 13, 2020, the worker reported balance issues, headaches, memory issues, difficulty speaking and finding words, trouble walking and sleeping a lot. The physiotherapist noted the worker had an ataxic gait, difficulty speaking and stuttering, difficulty processing instructions, needing to use the wall for support, trouble keeping still while performing tasks, sensitivity to light and unable to tandem walk and recommended the worker remain off work.

On August 18, 2020, the worker was advised their entitlement to benefits would end on August 25, 2020 as the WCB had determined they had recovered from the effects of the July 9, 2020 workplace accident.

On September 2, 2020, the worker underwent an MRI of their brain which found “No intracranial abnormality or post-traumatic changes…”. The worker’s file including the MRI results, were reviewed by a WCB medical advisor on September 14, 2020, who opined the worker’s current presentation was not medically accounted for in relation to the July 9, 2020 workplace accident and there was no change to the earlier opinion.

On September 15, 2020, the WCB advised the worker by letter that there would be no change to the earlier decision the worker was not entitled to benefits after August 25, 2020.

The worker requested reconsideration of the WCB’s decision to Review Office on October 1, 2020. The worker noted disagreement with the decision to end their entitlement to benefits on the basis that they continued to suffer whiplash and concussion symptoms, including frequent balance issues, speech and word-finding difficulties and headaches.

On October 14, 2020, Review Office determined the worker was not entitled to benefits after August 25, 2020, relying upon the WCB medical advisor’s opinion that the worker’s compensable diagnosis was a minor head injury/contusion and neck strain and that the worker’s current difficulties were not related to the workplace accident.

The worker’s representative requested further reconsideration by Review Office on December 9, 2020 after providing Review Office with additional medical reports from the treating neurosurgeon, treating neurologist and treating speech language pathologist. The representative noted all of the worker’s treating healthcare providers concluded the worker sustained a concussion as a result of the July 9, 2020 workplace accident and as such, noted their belief the worker should be entitled to further benefits after August 25, 2020.

At the request of Review Office, the worker’s file, including the new medical information provided by the worker’s representative, was reviewed by a WCB medical advisor on December 11, 2020. The WCB medical advisor provided an opinion that the diagnosis of post-concussion syndrome could not be applied absent initial evidence of concussion. Further, the medical advisor noted that the worker’s “increasing and diffuse complaints over time” in the context of normal neurological findings could not be medically attributed to the injury sustained in the workplace accident. A copy of the WCB medical advisor’s opinion was provided to the worker’s representative on December 14, 2020, who provided a response on December 28, 2020.

On January 13, 2021, Review Office again determined the worker was not entitled to benefits after August 25, 2020, relying upon the WCB medical advisor’s opinion that a relationship between the worker’s diagnosis of a concussion/post-concussion syndrome and the July 9, 2020 workplace accident could not be established.

The worker’s representative filed an appeal with the Appeal Commission on April 1, 2021. A videoconference hearing was arranged for August 26, 2021.

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 represented by a worker advisor and supported by their spouse. The worker advisor provided documents for consideration by the panel in advance of the hearing and made an oral submission in the course of the hearing. The worker provided testimony through answers to questions posed by the worker advisor and by members of the appeal panel.

The worker’s position, as outlined in the submission made by the worker advisor, is that the worker is entitled to wage loss and medical aid benefits beyond August 25, 2020 as the evidence confirms that the worker had not at that time recovered from the continuing effects of the compensable injury sustained on July 9, 2020 and as a result required ongoing medical aid and continued to sustain a loss of earning capacity.

The worker advisor noted the basis for the WCB’s determination that the worker had recovered from the compensable minor head injury with contusion and possible neck strain was the opinion of the medical advisor who determined there was no evidence that the worker incurred concussion as a result of the accident and that the worker could be expected to recover from the accepted diagnoses within days or weeks of injury. The worker’s position is that the accepted diagnosis does not fully capture the nature and extent of the worker’s injury and that the panel should consider and rely upon the evidence of the treating medical providers in this regard.

The worker advisor outlined the medical findings and opinions provided by the treating medical professionals noting that the worker’s family physician as well as the emergency room physician both diagnosed concussion in their assessment of the worker in the days immediately following the accident. Further, these diagnoses were subsequently confirmed by the treating physiotherapists as well as the treating neurosurgeon and treating neurologist. The worker advisor noted that of the medical opinions available, only the WCB medical advisor is of the view that a diagnosis of concussion is not medically accounted for.

In their submission, the worker advisor referenced the medical information materials submitted in advance of the hearing as confirming that symptoms of concussion may not appear immediately but can become evident within days or weeks of a head injury. The worker advisor noted the range of concussion related symptoms include difficulty thinking clearly, difficulty concentrating, headache, nausea, balance problems and dizziness, sensitivity to light and more, and that these are the symptoms the worker reported to the treating medical professionals in the days following injury. Further, the information provided supports the worker’s position that symptoms of concussion may soon resolve but also can persist for months or even more than a year. In the worker’s case, those symptoms persisted for nearly one year until appropriately treated.

The worker offered testimony that they felt dazed immediately after the injury and soon also felt nausea and headache. The worker stated they have come to understand they may have some associated memory loss, noting that their initial description of how the injury occurred, as described in the reporting to the WCB is not the same as is evident in the security video evidence of the event, as provided by the employer. The worker described to the panel their continued attendance at work until July 12, 2020. The worker indicated that they were left in charge by the employer, with their immediate supervisor and the owner away at the time of or immediately following the injury. In the result, the worker made every effort to continue going to work but while at work on July 10-12, experienced symptoms of headache, queasiness, light sensitivity and increasing loss of balance that necessitated holding onto counters and equipment as they moved around. The worker described issues with memory and difficulties in use of equipment that they were quite familiar with. They noted this was noticed by others attending for service. On breaks during this time, the worker would apply ice to their head to ease pain.

The worker confirmed that they continued to seek treatment beyond August 25, 2020, paying for physiotherapy, vestibular therapy and speech therapy at their own expense. The speech therapy concluded in January 2021 with the resolution of the speech-related symptoms. The worker continues with vestibular therapy although that has consisted mostly of a home-based program due to the distance between where the worker is living and where the therapist is located. The worker was cleared to return to work by the vestibular therapist in mid-June 2021 and started a new job shortly thereafter. The treating neurologist recommended the worker return to work in a quieter environment than that offered by the accident employer. The worker also moved, temporarily, to a different community to accompany their spouse who had work there. As a result, the worker did not return to their pre-accident employment but understands that the employer continues to hold that position for them and the worker anticipates returning to that position in October 2021 when they return to living in that community.

The worker advisor noted as well the information provided by the employer to the WCB on August 13, 2020 confirms that there was a change in the worker after the accident occurred, in terms of personality and presentation. The employer advised the WCB that the worker did not sound like themself in a recent conversation in that the worker did not have the usual energy and had a hard time talking. The employer advised that the worker “...doesn’t miss time and is a very hard worker.”

The worker advisor stated that regardless of the diagnostic label applied to the worker’s injury, there is evidence that the worker experienced a wide range of symptoms arising from their head injury and that the symptoms were not minor and were ongoing beyond August 25, 2020. The worker’s neck difficulties also continued beyond that date. There is no evidence of any prior disabling symptoms as confirmed by the worker’s testimony and the employer’s statements to the WCB. As a result of the head injury sustained, the worker was not able to return to work as of August 25, 2020 and continued to require ongoing medical aid. For these reasons, the panel should find that the worker is entitled to wage loss benefits and medical aid beyond August 25, 2020 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 worker is entitled to wage loss and medical aid benefits after August 25, 2020. In order to grant the worker’s appeal, the panel would have to determine that the worker continued to experience a loss of earning capacity as a result of the accident of July 9, 2020 and continued to require medical aid to cure and provide relief from the injury sustained in the accident, beyond August 25, 2020. For the reasons set out below, the panel was able to make such findings.

In considering the issue on appeal, the panel reviewed the medical opinions and reports as contained in the worker’s WCB claim file and as submitted by the worker in support of the appeal.

The file evidence confirms that the worker first sought medical attention from their family physician in a virtual appointment on the date of injury. Based upon the information provided to the physician, the diagnosis provided was a contusion to the worker’s face and scalp. The worker at that time described symptoms of swelling at the point of impact as well as “++ pain” and mild headache. The physician noted the worker sounded normal and logical on the phone but noted the worker should go to emergency if they experienced any nausea or vomiting. The worker again consulted the physician on July 11 and 12, 2020 by virtual visit over the phone, at that time reporting numbness in their face, headache, difficulty concentrating or reading, sore neck and that rest helped to address their symptoms.

When the worker sought emergency treatment on July 12, 2020, they reported numbness/tingling throughout the face, pain to the top of their head, dizziness with movement, nausea and photophobia, difficulty concentrating and feeling more emotional than usual. The treating emergency room physician diagnosed concussion and whiplash injury and directed the worker to take one week off work. Two days later, the worker was assessed by a physiotherapist who recorded the worker’s report of dizziness and disorientation, hypersensitive vision, headache, fatigue, difficulty sleeping, difficulty finding words and nausea, and diagnosed concussion and whiplash associated disorder.

When the worker saw their treating family physician in clinic on July 20, 2020, the diagnosis was concussion, based on the clinical findings and the physician recommended the worker not return to work for two weeks. On August 4, 2020, the physician again noted the worker’s symptoms of unsteadiness on their feet with assisted walking and reports of difficulty with word finding, vision issues and balance issues and recommended another two weeks off work with no driving or other activity in the interim.

When the WCB case manager spoke with the physiotherapist on August 11, 2020, the physiotherapist confirmed their opinion that the worker had a concussion and requested an assessment by a WCB healthcare advisor, which the case manager indicated was not possible. 

On August 13, 2020, the WCB case manager spoke with the worker and noted their report of ongoing frequent headaches, very slow speech, difficulty finding words, light sensitivity and vision difficulties, disorientation, fatigue, memory difficulties and difficulties with walking. The worker’s report is supported by the information provided to the WCB case manager by the employer that same date, as to the changes noted in the worker’s presentation and abilities since the injury.

The physiotherapist’s report of August 18, 2020 set out that the worker remained disabled from all work and would remain so for four weeks based on clinical findings. The treating family physician on August 19, 2020, confirmed the diagnosis of concussion based upon clinical findings, noted little progress and also recommended the worker remain off work for at least four more weeks and be referred for neurological assessment.

In an assessment by a neurosurgeon in September 2020, the worker was described as presenting with “concussion like symptoms including fuzzy vision, difficulty reading, difficulty visually tracking objects, dizziness, postural instability..., stuttering, word finding difficulties as well as some headaches....” The neurosurgeon stated that the worker met the clinical criteria for “work-related concussion, persistent post-concussion symptoms and an associated whiplash type injury.” Another neurologist, specializing in concussion treatment, assessed the worker on October 21, 2020 and concluded that the worker’s symptoms at that time were likely due to post-concussion syndrome.

On considering the totality of evidence including the worker’s account of the accident and subsequent symptoms the panel finds that the mechanism of injury described by the worker, and confirmed by the medical and employer reporting, is consistent with an injury that was more significant than a minor head injury/contusion with possible neck injury and could have resulted in concussion and whiplash. We considered that although the WCB medical advisor concluded on the basis of the file documents reviewed that the evidence did not support a diagnosis of concussion, applying the WCB criteria for such a diagnosis, each of the treating professionals who assessed the worker following the accident came to a different conclusion on the basis of their assessments and have maintained that view as outlined by their medical reporting. The evidence provided by the treating family physician, physiotherapist and emergency physician supports the worker’s position that the injury was more than a minor head injury/contusion with possible neck injury as determined by the WCB. Further, these early diagnoses by the treating medical professionals are supported by the subsequent diagnoses provided by the specialists including the neurosurgeon and neurologist who assessed the worker.

The reporting of the treating medical professionals further confirms that the worker was not recovered from the effects of the workplace injury by August 25, 2020, but remained disabled from all work beyond that date, and further, that the worker continued to require medical aid related to and arising out of the workplace injury beyond that date. Although the WCB medical advisor was of the view that, considering normal recovery norms for a minor head and neck injury, the worker ought to have recovered by that date, the evidence does not align with that conclusion. The treating professionals continue to recommend the worker remain off work and receive further treatment beyond August 25, 2020.

The panel accepts and relies upon the reported findings and the conclusions reached by the worker’s treating professionals, and finds on a balance of probabilities, that the worker continued to experience a loss of earning capacity and required further medical aid beyond August 25, 2020 as a result of the injury sustained at work on July 9, 2020.

Therefore, the panel determines that that worker is entitled to wage loss and medical aid benefits after August 25, 2020. The worker’s appeal is granted.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 16th day of September, 2021