The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that the reduction to partial wage loss benefits based on the gradual return to work schedule from October 16 to November 12, 2019 is appropriate and that she is not entitled to further benefits in relation to the June 25, 2019 accident. A videoconference hearing was held on November 3, 2021 to consider the worker's appeal.

Issue

1. Whether or not the reduction to partial wage loss benefits based on the gradual return to work schedule from October 16, 2019 to November 12, 2019 is appropriate; and

2. Whether or not the worker is entitled to further benefits in relation to the June 25, 2019 accident.

Decision

1. That the reduction to partial wage loss benefits based on the gradual return to work schedule from October 16, 2019 to November 12, 2019 is not appropriate; and

2. That the worker is entitled to further benefits in relation to the June 25, 2019 accident.

Background

The worker filed a Worker Incident Report with the WCB on June 26, 2019 reporting injuries to multiple areas after she tripped and fell at work on June 25, 2019. The worker described that she was walking toward her car when:

…I tripped in the back lane as the concrete is very uneven. I sort of rolled while falling, I hit my right knee, rolled my right ankle and my right hand went out to break my fall, but somehow I landed on my back like a turtle. I don't know if I hit my head or just had my head snap back. I was down for a couple of minutes. When I stood up I felt pain in my neck as well. Today when I woke up, I felt dizzy and had a headache that felt like a vise 

…I have bruising and swelling and a scrape on the right side of my knee. My ankle and hand seem to be okay.

The worker attended for an initial chiropractic assessment on June 26, 2019. The worker reported right neck and upper back pain and headaches, with the treating chiropractor finding restricted cervical range of motion and tenderness at the worker's right trapezius area. The chiropractor provided a diagnosis of right cervical joint/myofascial pain.

On July 4, 2019, the WCB contacted the worker to discuss her claim. The worker confirmed the mechanism of injury and advised she was on her way to her designated work vehicle when the workplace accident occurred. The worker noted she had missed one day of work since the incident but had to leave work early on July 3, 2019 due to a headache and tight neck and would be seeking further medical treatment for tension headaches and nausea symptoms she had been experiencing since the workplace accident.

The worker was seen by her treating family physician on July 8, 2019 reporting immediate headache and confusion, dizziness, photophobia and difficulty concentrating, but no loss of consciousness after the June 25, 2019 workplace accident. The physician noted normal cranial nerves, delayed recall and pain on neck examination, and diagnosed the worker with a concussion/traumatic brain injury. The treating physician recommended a gradual return to work of 2 hours a day, 3 times per week.

At a follow-up appointment with her treating family physician on July 22, 2019, the worker complained of headaches, sensitivity to light and noise, increased symptoms since her initial visit and intolerance to busy environments, screens, grocery stores and driving. The physician noted the worker wore sunglasses in the office and had normal cranial nerves. The physician further noted the worker's return to work had not been tolerated, and it was not appropriate for her to be in the workplace at that time due to her symptoms. The physician recommended the worker remain off work for 2 weeks.

At an initial physiotherapy assessment on August 1, 2019, the worker reported headache, nausea, light sensitivity, dizziness and neck pain, and was diagnosed with WAD 1 (whiplash associated disorder) with vestibular sequalae. The physiotherapist recommended the worker remain off work. At a follow-up appointment with her treating physician on August 28, 2019, the physician recommended a graduated return to work starting with 2 days per week at 2 hours per shift, increasing to 3 days per week for 2 weeks, with a low light, quiet workplace; low traffic/non-busy environment. It was further recommended that she work from home, if possible; minimize repetitive lifting; use a rolling bag; and drive no more than 30 to 40 minutes at a time; and that she would need frequent breaks and position changes. The worker began her return to work on September 3, 2019.

An MRI of the worker's cervical spine was performed on September 6, 2019, indicating "Degenerative changes of the cervical spine most pronounced at C5-6…" A brain MRI was performed on the same date and was reported to be normal. At a further follow-up appointment on September 10, 2019, the worker's treating physician noted the worker did not tolerate the return to work plan and recommended a further 4 weeks off work.

On September 17, 2019, the worker attended a call-in examination with a WCB medical advisor. After the examination, the medical advisor opined the worker's diagnosis in relation to the June 25, 2019 workplace injury was concussion and neck strain, with a natural history of improvement from a concussion being several days and a return to pre-accident function within a few weeks, and a natural history of recovery from a neck strain anticipated within several weeks.

The WCB medical advisor went on to note that the worker advised her preferred means of communication was by email; she had provided her WCB case manager with articles she had researched on the internet; and her preferred activity while off work was to watch television. The medical advisor noted the worker reported experiencing incapacitating symptoms for the next 4 days after 2 hours of work-related computer use, and found that this level of dysfunction was inconsistent with the activities noted by the worker which would involve computer use and television watching which essentially constituted viewing a computer monitor. Based on that information, the WCB medical advisor noted total disability was not probable and recommended a return to vocational function in some capacity, noting the worker's treating physician was in agreement and supported a return to the workplace in some capacity.

At the worker 's follow-up appointment with her treating physician on October 2, 2019, the physician recommended a graduated return to work plan with 2-hour shifts, twice a week in the office and once a week at home, and restrictions of dim lighting, low stimuli/non-busy environment and may need breaks from computer screens. On October 7, 2019, the worker's file was again reviewed by the WCB medical advisor, who opined that "[The worker] demonstrated a normal neurologic examination and is able to engage in non-work related activities. An ongoing patho-anatomic lesion in relation to the June 25/19 workplace injury, on which to base the imposition of restrictions upon [the worker's] function, is not identified."

On October 9, 2019, the worker attended a second physiotherapy clinic for treatment. The worker reported headaches, neck pain and stiffness, and the treating physiotherapist diagnosed the worker with a cervical strain and headaches.

On October 16, 2019, the WCB advised the worker that it had been determined, based on a review of her file, that ongoing restrictions were not required and she was capable of working her full regular duties. The WCB also advised that a graduated return to work plan was approved, consisting of 2 weeks at 4 hours per day from October 16, 2019 to October 29, 2019; then 2 weeks at 6 hours per day from October 30, 2019 to November 12, 2019, and a return to full regular hours on November 13, 2019. The WCB further advised the worker that partial wage loss benefits would be paid based on the graduated return to work plan.

A Doctor's Progress Report was received by the WCB for the worker's appointment with the treating physician on October 30, 2019. The worker reported she attempted the 4 hour shifts but felt much worse, noting she was now not able to drive or do errands and her employer had concerns regarding the worker's ability to function at work. The treating physician took the worker off work for 2 weeks, to be reassessed after that time.

An October 31, 2019 physiotherapy progress report noted the worker would be off work for 2 weeks due to a non-compensable injury. On November 13, 2019, the worker's treating physician recommended the worker remain off work for 4 weeks as the worker was "…unable to tolerate driving, unable to tolerate screens/lights, ongoing dizziness and nausea."

On November 22, 2019, the worker's file was again reviewed by the WCB medical advisor, who noted there was no objective and materially new medical information on file, and the worker's recently reported symptoms and functions included inability to drive, inability to communicate with the WCB, with the worker's mother being asked to facilitate communication, and November 20, 2019 reports of the worker's significant deterioration. The medical advisor opined that the worker's reported symptoms were not accounted for in relation to the June 25, 2019 workplace accident. On November 26, 2019, the WCB advised the worker that responsibility would not be accepted for her ongoing difficulties and there would be no change to the earlier decision.

Additional medical reports were received by the WCB, including a December 11, 2019 report from a physician who specializes in neurology, supporting the worker remaining off work, and a December 19, 2019 report from the original treating physiotherapist recommending further treatment. On January 19, 2020, the worker's file was again reviewed by the WCB medical advisor, who opined that "…it is not probable that recent reports of cognitive impairment relate to brain injury sustained in June 2019." On January 30, 2020, the WCB advised the worker that they had determined her ongoing difficulties were not related to the June 25, 2019 workplace accident and there would be no change to the earlier decision that the worker was not entitled to further benefits.

On February 6, 2020, the worker requested that Review Office reconsider the WCB's decision. The worker submitted she had not recovered from the workplace accident, as noted by her ongoing difficulties, and provided a detailed chronology of her difficulties.

On March 30, 2020, Review Office determined that the reduction to partial wage loss benefits based on the gradual return to work schedule from October 16 to November 12, 2019 was appropriate and the worker was not entitled to further benefits. Review Office relied and placed weight on the WCB medical advisor's opinions that the worker was not totally disabled from her job duties and was able to participate in the proposed graduated return to work plan. Review Office found they could not account for the worker's increased symptoms and difficulties months after the June 25, 2019 workplace accident and determined the worker was not entitled to further benefits.

On June 8, 2021, the worker's representative appealed the Review Office decision to the Appeal Commission, and a videoconference hearing was arranged.

Reasons

Applicable Legislation and Policy

As the worker was employed by a federal government agency or department, her claim is adjudicated under the Government Employees Compensation Act (the "GECA"). Subsection 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 his employment is entitled to compensation.

"Accident" is defined in section 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."

Subsection 4(2) of the GECA provides that a federal government employee in Manitoba is entitled to receive compensation at the same rate and under the same conditions as a worker who is covered under The Workers Compensation Act of Manitoba (the "WCA").

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

Subsection 4(1) of the WCA 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 WCA 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 WCA 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 43.20.25, Return to Work with the Accident Employer, outlines the WCB's approach to the return to work of injured workers through modified or alternate duties with the accident employer. The Policy describes suitable work as work "… which the worker is medically able to do, does not aggravate or enhance the injury, and will provide benefits to both the worker and the employer…"

WCB Policy 44.10.20.10, Pre-existing Conditions, 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.

Worker's Position

The worker was represented by a worker advisor, who provided a written submission in advance of the hearing and made an oral presentation to the panel. The worker responded to questions from the worker advisor and from members of the panel.

The worker's position, as outlined by the worker advisor, was that she did not fully recover from her compensable concussion and neck strain injury and is entitled to further benefits with respect to both issues under appeal.

The worker advisor noted that the worker had pre-existing conditions, including hypertension, PTSD, multiple neck and back injuries from vehicle collisions, and previous concussions and whiplash. The worker advisor submitted that pre-existing conditions do not shield workers from sustaining new, acute injuries. On the contrary, they represent a weakness and render workers more susceptible to injury. The worker advisor also submitted that injured workers with pre-existing conditions tend to suffer more severe injuries and require more recovery time than healthy workers who suffer similar injuries.

The worker advisor submitted that in this case, the worker's pre-existing conditions would have left her susceptible to a more severe concussion and neck strain symptoms and resulted in a longer recovery from her injury. It was submitted that the file is full of evidence that the worker's symptoms related to the compensable injury did not resolve at the time her benefits were terminated.

The worker advisor submitted that Review Office relied solely on the medical advisor's opinion that the worker's symptoms were not "pathophysiologically plausible." The worker's position, however, was that her symptoms and recovery were consistent with recovery from post-concussion syndrome complicated by mechanical neck issues and cervicogenic headaches. The worker advisor submitted that this was in line with the multitude of specialized treatment providers who had consulted on the worker's file. The worker advisor noted that none of these treatment providers agreed with the WCB medical advisor that the worker had recovered at the time her benefits ended.

The worker advisor noted that the worker had no history of headaches and no difficulty completing her work duties prior to the accident. It was submitted that file evidence shows the continuation of her symptoms from the time of the accident up to and beyond the time her benefits were terminated. The worker advisor noted that those symptoms cannot be explained as being solely pre-existing, as the worker did not suffer from these symptoms prior to the accident.

Employer's Position

The employer did not participate in the appeal.

Analysis

Issue 1: Whether or not the reduction to partial wage loss benefits based on the gradual return to work schedule from October 16, 2019 to November 12, 2019 is appropriate.

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker was medically unfit or unable to work the gradual return to work schedule outlined for her from October 16, 2019 to November 12, 2019. For the reasons that follow, the panel is able to make that finding.

The panel is satisfied that the medical reports on file show that the worker's symptoms, including those of nausea and headaches, remained fairly consistent up to the October 16, 2019 start date for the gradual return to work schedule and beyond.

The worker's symptoms and injuries had not resolved when worker attended the call-in examination on September 17, 2019 with the WCB medical advisor, where the medical advisor identified the present diagnoses as being concussion and neck strain, and opined that such diagnoses were accounted for in relation to the workplace injury.

The WCB medical advisor provided a further opinion on October 7, 2019, indicating that no restrictions were required with respect to the worker returning to work. The panel is unable to accept that the worker's compensable symptoms and injuries would have essentially resolved less than 3 weeks after the call-in examination, such that she was considered able to return to her full regular duties.

The WCB relied heavily on opinions provided by the WCB medical advisor in arriving at their decision. The panel is unable, however, to place weight on the WCB medical advisor's opinion to the effect that the worker had functionally recovered from her workplace injury and was fit to return to work without restrictions. The panel finds that the medical advisor's opinion is largely based on indirect anecdotal information provided to him with respect to the worker's activities and abilities, not clinical evidence.

The panel notes that while the WCB medical advisor had indicated the worker could return to full duties, the WCB provided the worker with a graduated return to work schedule in recognition of the fact that she had been off work for a considerable period of time.

The panel is not satisfied that the gradual return to work plan which was developed for the worker was appropriate or suitable. The plan provided that the worker would start by working 4 hours a day from October 16, 2019 to October 29, 2019. The evidence shows that previous return to work efforts, with significantly fewer hours and other additional restrictions, had not been successful. The treating physician's September 10, 2019 report thus indicated that the worker's attempted return to work in early September 2019, with 2-hour shifts, 2 days a week, had not been tolerated at all and the worker was off work for 4 weeks after that. The physician's October 2, 2019 report had indicated the worker was starting a gradual return to work at 2 hours a day, 3 days a week, one of which would be at home.

The panel notes that in the treating physician's October 30, 2019 report, it is indicated that the worker tried the 4-hour shifts and could not tolerate them, and she was taken off work for 2 weeks as her symptoms were now much worse.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker continued to suffer from the effects of her compensable injury as at October 16, 2019 and beyond, and was medically unfit or unable to work the gradual return to work schedule outlined for her from October 16, to November 12, 2019. The panel therefore finds that the reduction to partial wage loss benefits based on the gradual return to work schedule from October 16, 2019 to November 12, 2019 was not appropriate.

The worker's appeal on this issue is allowed.

Issue 2: Whether or not the worker is entitled to further benefits in relation to the June 25, 2019 accident.

For the worker's appeal on this issue 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 her June 25, 2019 workplace accident. For the reasons that follow, the panel is able to make that finding.

Given our finding in Issue #1 above, that the worker continued to suffer from the effects of her compensable injury as at October 16, 2019 and beyond, the panel finds that the worker suffered a further loss of earning capacity and required further medical aid as a result of her June 25, 2019 workplace accident and injury.

The worker is therefore entitled to further benefits in relation to the June 25, 2019 accident.

The worker's appeal on this issue is allowed.

Panel Members

M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 31st day of December, 2021