The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to further benefits in relation to the July 2, 2019 accident. A videoconference hearing was held on September 1, 2021 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits in relation to the July 2, 2019 accident.

Decision

That the worker is not entitled to further benefits in relation to the July 2, 2019 accident.

Background

On July 16, 2019, the worker filed a Worker Incident Report with the WCB, reporting that on July 2, 2019, when helping a customer, he lifted an empty tank by the cap. As he was lifting the tank, the cap was stripped, and the tank dropped to the ground. The cap hit the worker in his mouth and nose area, and the worker noted his nose was bent. He reported the incident to the employer, went home for lunch and took pain medication, then returned to finish his shift.

The worker sought treatment at a medical clinic on July 4, 2019, where he reported the incident to the physician, noting he had pain in his mouth and a headache but did not having bleeding from his nose. The worker reported he was a "…bit dazed after it happened and a bit dizzy. Difficult carrying on with work and worse with bending over." The physician examined the worker and noted tenderness under the worker's nose, "no battle sign. no raccoon eyes. tender to nose on palpation, no loose teeth…" and a strong bite bilaterally. The physician diagnosed the worker with a facial injury/possible concussion and recommended he remain off work until July 6, 2019. An x-ray of the worker's nasal bones indicated that no abnormality was observed.

On July 8, 2019, the worker was seen for an initial chiropractic assessment. The treating chiropractor noted the worker's report of the incident, including his description of being thrown against the wall from the impact of the cap hitting his face and further noted the worker's complaints of a headache, neck pain, severe stiffness, upper back pain and facial pain. The chiropractor diagnosed the worker with whiplash syndrome and indicated he could not rule out a concussion. It was recommended the worker remain off work until July 16, 2019.

On July 18, 2019, the worker attended at a local emergency department with complaints of a migraine he related to the workplace accident. The worker reported a history of migraine headaches, with this being one of his more severe headaches and experiencing more headaches since the workplace accident. The attending emergency physician noted the worker's complaints of nausea, photophobia and dizziness, with no vomiting or numbness or tingling to his extremities. Headache pain medication was provided.

At an appointment with a family physician on July 25, 2019, the worker reported ongoing difficulty with headaches, with an improvement in symptoms until returning to work half time that week, nausea when his headaches were severe, ongoing difficulty with concentration and dizziness at times. The physician recommended the worker remain off work for the rest of the week, then return the following week and try half days every other day. A referral to a concussion clinic was made.

At the request of the worker's WCB case manager, the worker's file was reviewed by a WCB medical advisor regarding the referral to the concussion clinic. On August 9, 2019, the WCB medical advisor opined that the worker did not meet the WCB's criteria set out in the WCB concussion statement and that "…a diagnosis of concussion is not likely accounted for on the basis of the July 2, 2019 workplace incident."

The worker attended an appointment with a sports medicine physician on September 3, 2019. The physician opined that:

The mechanism of injury that this patient suffered is not consistent with an evident head injury that would be associated with concussion and whiplash in spite of the fact that he does seem to have the symptoms associated with post concussion syndrome and whiplash. It is difficult to correlate his symptoms to his neck injury. It is also unusual that he has had no significant improvement over 2 months since the injury…

Overall regardless of the initial mechanism of injury it does seem that he is suffering from post concussion syndrome with some whiplash symptoms."

The sports medicine physician recommended changes to the worker's prescribed medications, along with a "Progressive increase of physical activity and return to work as tolerated."

At the request of the WCB, the worker attended a call-in examination with a WCB chiropractic consultant on September 26, 2019. After examining the worker, the chiropractic consultant opined that the worker's current diagnosis was a non-specific neck and headache discomfort. The consultant further opined:

Also noted on the evaluation on any resisted muscle activity performed in the shoulder region and the arm and forearm musculature [the worker] reported that he needed to take a break in the middle of the testing procedures as related to an increase in the headache. It is not probable that the muscle activity as performed on the shoulder/arm musculature would be aggravating factors to a headache. I am unable to identify a patho-anatomic origin of [the worker's] ongoing neck and headache discomfort and it is difficult to relate it to the mechanism of injury as reported.

The consultant did not recommend approval of the extension of therapy requested by the worker's treating chiropractor, noting the sports medicine physician had found little change in the worker's headache and neck discomfort over the past two months. The WCB chiropractic consultant further recommended the worker be encouraged to increase his physical activity level and opined that a return to work would be reasonable at this time.

On October 16, 2019, the WCB case manager spoke with the worker, who advised that his treating chiropractor described his neck as being "in rough shape" the day following the September 26, 2019 call-in examination and over a week and half was required for the worker to feel better, which the worker attributed to the examination procedures. On October 23, 2019, the WCB medical advisor again reviewed the worker's file and opined that "A mechanism of injury that would have provoked an increase in cervical pain or a recovery period of 1 week in relation to the examination maneuvers performed on September 26, 2019 is not apparent." The WCB medical advisor also opined that the medical evidence did not support the worker sustained a concussion as a result of the July 2, 2019 workplace accident, and as such, a diagnosis of post-concussion syndrome was not supported. The WCB medical advisor further opined that given the length of time since the workplace accident and the mechanism of that accident, the nature and severity of the worker's current reported neck/headache symptoms were not likely medically accounted for in relation to the workplace accident.

On October 31, 2019, the WCB's Compensation Services advised the worker that they had determined his current ongoing symptoms and difficulties were not related to the workplace accident and he was not entitled to further benefits. Compensation Services advised that the benefits would continue to November 7, 2019, inclusive.

On November 28, 2019 and January 19, 2020, additional medical information was received from the worker's treating chiropractor and family physician, respectively, in support of the worker's entitlement to further benefits. The January 19, 2020 report from the worker's family physician noted the worker had a pre-existing medical condition, which the July 2, 2019 accident exacerbated, with the worker's prolonged recovery being "…connected to his underlying neurological condition with his work accident being a triggering event for his ongoing symptoms."

The additional medical information was reviewed by the WCB medical advisor on February 3, 2020, and the medical advisor opined that it was not probable that worker's currently reported symptoms were accounted for by the workplace accident or that those symptoms were prolonged by the worker's pre-existing condition.

On February 10, 2020, Compensation Services advised the worker that there would be no change to the October 31, 2019 decision he was not entitled to further benefits.

On March 16, 2020, the worker requested that Review Office reconsider Compensation Services' decision. The worker submitted that his treating healthcare providers all supported he sustained a concussion as a result of the workplace accident and requested further wage loss and medical aid benefits.

On April 22, 2020, Review Office determined that the worker was not entitled to further benefits in relation to the July 2, 2019 workplace accident. Review Office relied and placed weight on the opinions of the WCB medical advisors that the worker's ongoing difficulties were not related, and the worker's pre-existing condition was not affected, by the workplace accident.

On October 1, 2020, the worker's representative submitted further information to Review Office and requested a review of the WCB and Review Office decisions. The representative provided a statement from a witness who saw the July 2, 2019 incident, records of text messages between the worker and the employer, a report from a neurologist and chart notes from a treating physiotherapist to support the worker sustained a work-related concussion and had not recovered.

On October 28, 2020, Review Office determined the worker was not entitled to further benefits. Review Office considered the additional information provided, but was unable to find a further need for treatment or continued loss of earning capacity in relation to the July 2, 2019 accident. Review Office determined that the worker sustained soft tissue injuries on July 2, 2019 and that recovery from such injury occurred within a short duration. Review Office placed more weight on the opinions of the WCB medical advisors, and was unable to establish a causal relationship between the worker's diagnosis of a concussion/post-concussion syndrome and the July 2, 2019 workplace accident.

On November 30, 2020, the worker's representative appealed the Review Office decision to the Appeal Commission and a videoconference hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), the regulations under the Act 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.

WCB Policy 44.10.20.10, Pre-existing Conditions (the "Policy"), addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Policy is stated, in part, as follows:

The Workers Compensation Board (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 states, in part, that:

When a worker has:

1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and

2) the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and

3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.

Worker's Position

The worker was represented by a worker advisor. The worker's representative noted that the worker and he were relying on their submissions to Review Office, dated March 16, 2020 and October 1, 2020, respectively. The worker's representative also made an oral presentation to the panel, and the worker responded to questions from his representative and from the panel.

The worker's position was that he had not recovered from the effects of the July 2, 2019 workplace accident by early November 2019, when the WCB ceased benefit coverage and responsibility for his claim, and his appeal should be allowed.

The worker's representative submitted that regardless of whether the accepted compensable injury is called a concussion, whiplash, cervical strain, non-specific neck and headache discomfort, or some combination of the above, the file evidence shows the workplace accident caused symptoms which persisted beyond the current benefit end date. The representative submitted that while the above diagnoses were all in play, the primary or predominant compensable diagnoses which were responsible for the worker's continuing loss of earning capacity and need for medical aid were concussion, followed by post-concussion syndrome, whiplash and acute-on-chronic headaches.

The worker's representative submitted that in making the decision to end benefits, the WCB relied on the opinions of the WCB medical advisor and WCB chiropractic consultant. The representative expressed concerns with the opinions provided by the WCB advisor and consultant, including that the opinions were insufficiently substantiated by reference to the evidence they relied upon. The representative submitted that WCB healthcare consultants should be held to a high standard in terms of substantiating their opinions, given they have access to the entire claim file, and failing to substantiate their medical opinion raises the prospect that they might be based on incomplete evidence.

The worker's representative asked that the panel attach less weight to the WCB healthcare opinions, and greater weight to the evidence which shows the worker experienced distinct changes in his medical and functional status as a result of the workplace accident, and these changes continued well past the benefit end date.

Employer's Position

The employer was represented by its director of HR, who participated in the appeal by teleconference. The employer's representative did not take a position on the appeal, but advised that she was there to observe and to answer any questions the panel might have.

Analysis

The issue before the panel is whether or not the worker is entitled to further benefits in relation to the July 2, 2019 accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a further loss of earning capacity and/or required further medical aid as a result of the July 2, 2019 workplace accident. The panel is unable to make that finding, for the reasons that follow.

In response to questions from his representative and the panel, the worker reviewed the mechanism of injury at the hearing. Based on our review and consideration of all of the information which is before us, on file and as presented at the hearing, the panel is unable to relate the worker's current or ongoing symptoms after November 7, 2019 to the workplace incident or injury.

While the worker places weight on the reports of the treating chiropractor and his opinion that given the worker's history of concussion and the mechanism of injury, it was "highly probable…that he would have a concussion," the panel notes that in his first report dated July 10, 2019, the chiropractor described the mechanism of injury as it "…threw me against wall" and in a subsequent report he indicated that the worker "…threw his head back violently." The panel notes, by contrast, that the worker had indicated to the WCB on July 31, 2019 that he was hit in the face, "…but not thrown to the wall. He stated he was leaning against the wall," and further that he "held on to the tank to keep it from falling, hung on and went backwards against the wall." The worker further confirmed at the hearing that he did "…not remember hitting his head on the wall."

The worker submitted that he could not understand how the opinions of four doctors who had seen him and diagnosed him with a concussion or whiplash should be accorded less weight than that of the WCB medical advisor who had not seen him. The panel notes that the four doctors the worker referred to, including his family physician, are from the same clinic, and there is a general absence of clinical findings in their reports.

The worker had indicated in his submission that he has pre-existing conditions which could render him more susceptible or vulnerable to a concussion or injury. The worker referred to having a long history of migraine headaches, but indicated that these were not causing him difficulties prior to the accident and he was able to work. The worker further indicated that he had suffered up to six concussions previously. Information on file indicates, however, that with the exception of perhaps one instance, these concussions had not been diagnosed by a medical practitioner, but were self-diagnosed, and that there is a lack of medical evidence on this point.

The panel places significant weight on the September 3, 2019 opinion of the sports medicine physician who, after examining the worker, noted that the mechanism of injury was "…not consistent with an evident head injury that would be associated with concussion and whiplash in spite of the fact that he does seem to have the symptoms associated with post concussion syndrome and whiplash," and that it was "…difficult to correlate his symptoms to his neck injury."

The panel notes that the sports medicine physician went on to state that "Overall regardless of the initial mechanism of injury it does seem that he is suffering from post concussion syndrome with some whiplash symptoms," but that the physician concluded that he did not know what other benefit he could be to the worker.

It is the panel's understanding that diagnoses of concussion and post-concussion syndrome are linked, and that for a diagnosis of post-concussion syndrome to be accepted as compensable, it must first be established that a worker suffered a concussion.

The worker's representative noted that the WCB medical advisor referred to the WCB's Healthcare Services Position Statement on concussion. The panel recognizes that the Position Statement is not binding on us.

The criteria to substantiate a diagnosis of concussion in relation to a workplace incident, as outlined in the Position Statement are:

The application of a force to the brain of sufficient intensity, either from blunt trauma to the head, an acceleration or deceleration mechanism or exposure to blast that results in one or more of the following immediate manifestations: 

• Observed or self-reported loss of consciousness 

• Observed or self-reported alteration in mental state at the time of injury, such as confusion and/or disorientation 

• Loss of memory for events immediately before or after an injury 

• The occurrence of an acute neurologic deficit.

The Position Statement further states that:

Post accident symptoms such as headache, dizziness, irritability, fatigue and/or poor concentration, including when identified soon after an injury, can be used to support the diagnosis of concussion but cannot be used to make the diagnosis of concussion in the absence of the criteria listed above.

Based on our review of the evidence, and in particular, the medical evidence closest in time to the workplace accident, the panel is unable to find that the criteria for a concussion as outlined in the Policy Statement are met. The panel is therefore unable to find that the worker suffered a concussion on July 2, 2019. The panel further finds that in the absence of a confirmed concussion in the workplace, the presence of post-concussion symptoms cannot be medically accounted for in relation to the workplace accident.

The panel has reviewed and considered the report from the neurologist dated April 9, 2020 which was previously provided to Review Office. The neurologist indicated that he had treated the worker for headache symptoms in 2014 and last seen him in 2016. The panel is unable to find that the neurologist's report, based on his more recent virtual visit with the worker on April 9, 2020, supports or provides evidence that the worker's ongoing symptoms or difficulties are related to the incident more than nine months previously.

The panel carefully considered the August 31, 2020 email from a witness describing what he witnessed on July 2, 2019, which was provided in support of the worker's appeal. The panel notes that witness's comments that he was concerned the worker "…was going to faint because it looked like he had a little blackout from the impact of the cap. It took him a few seconds to recoup but it seemed that he was in a lot of pain," The panel is unable, however, to attach much weight to the witness's comments in the absence of contemporary clinical findings which would support his recollection of the incident more than one year later.

In conclusion, the panel acknowledges the worker's position that there were a number of diagnoses in play in this file and appeal. Based on the mechanism of injury and the evidence, the panel is unable, however, to account for the worker's ongoing difficulties or symptoms as being causally related to the workplace accident, or as contributing to a material degree to a loss of earning capacity or having enhanced a pre-existing condition. The panel acknowledges the worker's complaints of experiencing difficulties, but is unable to relate his ongoing symptoms and difficulties to his July 2, 2019 workplace incident.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer a further loss of earning capacity or require medical aid as a result of the July 2, 2019 workplace accident. The panel therefore finds that the worker is not entitled to further benefits in relation to that accident.  

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
W. Skomoroh, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 29th day of October, 2021