The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to further benefits in relation to the December 13, 2019 accident. A hearing was held on November 18, 2021 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits in relation to the December 13, 2019 accident.

Decision

That the worker is not entitled to further benefits in relation to the December 13, 2019 accident.

Background

The WCB received an Employer's Incident Report on December 16, 2019, reporting the worker injured his head in an incident at work on December 13, 2019 when he was reaching to remove items from a freezer and a large pan of frozen food fell on his head. Appendices to the Accident/Incident Report indicated the worker sustained a contusion to his head.

The worker sought medical treatment on December 14, 2019, and reported to the attending physician that he "saw stars" after the pan fell on his head but did not lose consciousness. He stated he was nauseous that night, but did not throw up or experience weakness or numbness. The physician noted the worker had occipital pain, along with a 2 cm scabbed laceration on his right temple and front mid scalp area. It was noted that the worker missed work that day, but would be returning to work on December 15, 2019. A diagnosis of head trauma was provided.

The WCB accepted the worker's claim on December 18, 2019, and wage loss benefits were approved for December 14, 2019.

On September 23, 2020, the WCB received a Doctor's First Report from the worker's family physician in respect of a September 17, 2020 examination. The family physician noted the worker had a history of head injury, with persistent headaches since the workplace accident, with some exacerbation from a viral illness. It was noted that a CT scan and an MRI of the worker's brain were normal, but the worker had persisting daily headaches. A referral to a neurologist was made and a copy of the May 8, 2020 CT scan was provided.

On September 25, 2020, the WCB spoke with the worker to discuss the additional medical information that had been received. The worker advised he had not sustained another accident, but had been experiencing constant headaches since the workplace accident in the same area as where the injury occurred, and they became so painful in April 2020 that he had to take time off work. The worker further advised that he had talked to his supervisor "all the time" about his headaches, and that he believed his headaches were related to the December 13, 2019 accident.

On October 14, 2020, the WCB requested and received chart notes from the worker's treating family physician for the period of time from December 15, 2019 to October 12, 2020. On October 19, 2020, the WCB spoke with the worker's manager, who confirmed the worker had mentioned he had pounding headaches on and off. He said the worker showed him the spot that was aching and said it was the same injury causing his headaches. The manager further advised there had been no change in the worker's duties and no new incidents had occurred at work.

On October 27, 2020, the WCB received a Doctor's Progress Report from the treating family physician of an October 19, 2020 appointment, which noted the worker's complaint of "Daily headaches, aggravated by noise and stress" and difficulty doing activities at times because of headaches. The physician noted the worker was working his regular hours, but was missing the occasional shift due to headaches, and had been referred to a neurologist.

On October 28, 2020, the worker's file was reviewed by a WCB medical advisor, who opined that the current diagnosis was non-specific headache. The medical advisor noted the worker sustained a scalp laceration/abrasion on December 13, 2019 and sought medical attention for same on December 14, 2019. The worker did not seek further medical attention until April 24, 2020, at which time the treating physician reported the worker had a one week history of fever, nasal/sinus congestion and headache, and provided a diagnosis of sinusitis. Further medical treatment for a persistent headache followed, including an emergency department visit, where the worker was diagnosed with a migraine. The worker's treating family physician diagnosed the worker with a post-viral headache. The WCB medical advisor noted the worker did not seek medical treatment for four months post-accident, and opined there was no medical evidence of a causal relationship between the worker's current symptoms and the December 13, 2019 workplace accident.

On October 29, 2020, the WCB's Compensation Services advised the worker that he was not entitled to further benefits as a causal relationship between his current difficulties and the December 13, 2019 workplace accident could not be established.

On June 28, 2021, the worker's union representative submitted additional information, including a letter from the worker's treating family physician dated June 13, 2021 and an April 1, 2021 report from a neurologist, and requested that Compensation Services reconsider their decision. The representative submitted that the worker was entitled to further benefits as the additional medical information, together with the evidence on file, showed the worker had a recurrence of his compensable head injury and his chronic headache condition was, on a balance of probabilities, related to the head injury he sustained at work on December 13, 2019.

The new medical information, together with the worker's file, was reviewed by the WCB medical advisor on July 14, 2021. In a memorandum to file, the medical advisor noted that based on the report from the treating neurologist, the worker's current diagnosis was chronic migraine headache without aura. The medical advisor went on to opine that the migraine headaches were not medically accounted for by the December 13, 2019 workplace accident. The advisor noted that there was more than a four month period of time from the initial assessment until April 24, 2020, when further medical care was sought for a headache, and speculation that the headaches were caused by the head injury from the workplace accident was not made until September 17, 2020, more than nine months after the workplace injury.

On July 15, 2021, Compensation Services advised the worker that the additional medical information had been reviewed and the October 29, 2020 decision that he was not entitled to further benefits remained unchanged.

On July 23, 2021, the worker's union representative requested that Review Office reconsider Compensation Services' decisions. The representative noted that following his December 13, 2019 workplace accident, the worker had persistent headaches, which were exacerbated by the viral illness diagnosed by the treating family physician and resulted in the worker requiring medical treatment and time away from work in April 2020. The representative submitted the evidence supported the worker's now chronic headaches were, on a balance of probabilities, causally related to the workplace accident, and as such, the worker was entitled to further benefits. On August 24, 2021, the employer provided a submission in support of Compensation Services' decision.

On September 8, 2021, Review Office determined that they were unable to relate the worker's ongoing difficulties to the workplace accident of December 13, 2019, and as such, there was no entitlement to further benefits.

On September 13, 2021, the worker's representative appealed the Review Office decision to the Appeal Commission and a videoconference hearing was arranged.

Reasons

Applicable Legislation

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

Worker's Position

The worker was represented by his union's Workers Compensation Specialist, who provided a written submission in advance of the hearing and made a presentation to the panel. The worker answered questions from his union representative, and the worker and the representative responded to questions from members of the panel.

The worker's position, as outlined by his representative, was that he is entitled to further benefits because the evidence supports his now chronic headaches are, on a balance of probabilities, a consequence of the head injury he sustained at work on December 13, 2019.

The worker's representative submitted that the evidence confirmed the worker sustained a traumatic head injury on December 13, 2019. When assessed by the physician the following day, he reported he did not lose consciousness, but saw stars, and had blurred vision, nausea and a headache. The worker returned to work and continued working for a few months without any significant time loss, medical attention or contact with the WCB. The worker reported, however, that he continued to have headaches during this entire time, but was able to manage them.

It was submitted that the worker experienced symptoms of fever, congestion and increased headache in April 2020 which prompted him to see his family physician. The worker reported that he felt the symptoms were similar to a prior sinus infection he had had, and the family physician managed his condition on that basis. The sinus condition was effectively treated with antibiotics, but the headaches persisted. At that point, following a discussion with his spouse, who is a chiropractor, and after coming across papers relating to his WCB claim, the worker realized his headaches were in the exact same area as where he was struck on December 13, 2019, and reported this to his family physician and the WCB.

The worker's representative submitted that just because the worker continued to work and did not see a doctor did not mean he did not have headaches or that his headaches cannot be related to his confirmed compensable head injury. The representative submitted that the worker's persistent headaches which resulted from the workplace accident were manageable for a few months, but worsened with the added complication of the viral infection, and the combined effect of the injury and the infection led to the need for medical assistance and resulted in missed time from work.

It was submitted that the treating family physician and neurologist both concluded the worker's headaches were a consequence of the head injury he sustained at work on December 13, 2019. The worker's representative submitted that the family physician's assessment was not speculative, as suggested by the WCB medical advisor, but was a reasonable explanation based on the worker's experience, and was corroborated by the treating neurologist.

In conclusion, the worker's representative submitted that "but for" the workplace accident, the worker would never have had a headache on December 14, 2019 or headaches persisting beyond that date. The added complication of the viral infection exacerbated or caused a recurrence of the worker's headaches and the worker's symptoms and difficulties in April 2020 and beyond were at least in part a consequence of the worker's compensable head injury. After the sinus infection had been effectively treated, the headaches remained and remain up to the present. The workplace accident having triggered the worker's headaches, the WCB is responsible to compensate the worker for the effects of those headaches.

Employer's Position

The employer was represented by its WCB Coordinator, who made an oral presentation at the hearing.

The employer's position, as outlined by their representative, was that the worker is not entitled to further WCB benefits as the evidence does not establish a causal connection between his ongoing headaches and the workplace injury he sustained on December 13, 2019.

The employer's representative summarized the events and information as documented on the worker's file. The representative submitted that their position that the worker was not entitled to further benefits was supported by the evidence, including the fact that the worker returned to his full duties on December 15, 2019; that he did not seek any medical treatment for headaches from December 15, 2019 to April 24, 2020; and that medical reports from April 24 to September 8, 2020 did not indicate a work-related reason for the worker's headaches.

It was submitted that in providing his April 1, 2021 report and opinion, the treating neurologist relied on the history which was provided by the worker, including that the worker almost lost consciousness at the time of the accident and had continued headaches following the injury. The representative noted that those details were not provided to the WCB in the same manner, nor were ongoing symptoms related to the workplace injury corroborated by any other healthcare provider after December 14, 2019.

The employer's representative quoted from and relied on the July 14, 2020 opinion from the WCB medical advisor that the worker's current diagnosis and ongoing headaches were not medically accounted for by the December 13, 2019 workplace accident.

In conclusion, the employer's representative submitted that the Review Office decision was in keeping with the relevant sections of the Act and WCB policies, and asked that the decision be upheld and the worker's appeal dismissed.

Analysis

The issue before the panel is whether or not the worker is entitled to further benefits in relation to the December 13, 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 his December 13, 2019 workplace accident. The panel is unable to make that finding, for the reasons that follow.

Based on our review of all of the information which is before us, on file and as presented at the hearing, the panel is unable to find a causal connection between the worker's ongoing headaches and his December 13, 2019 workplace accident.

The evidence shows that the worker sustained an injury to his head at work on December 13, 2019. The worker sought medical attention on December 14, 2019. The medical report from that attendance noted the worker had occipital pain, along with a 2 cm scabbed laceration on his right temple and front mid scalp area, and that he would be returning to work. The worker returned to working his full regular duties on December 15, 2019, just two days after the workplace accident. He continued working his full duties, without seeking further medical assistance or contacting the WCB until April 24, 2020, when he attended a virtual care visit with his family physician. Given the worker's return to his full duties and the lack of any indication of ongoing health concerns related to the accident, the panel is unable to find that the evidence supports that the worker sustained a more serious injury than head trauma or a scalp laceration or contusion as a result of his workplace accident.

While the worker subsequently indicated that he continued to experience headaches on an ongoing basis following the December 13, 2019 accident, there is an absence of medical or other documented evidence to support that assertion. A list of sick and vacation days showed that the worker took sick time on four days between December 2019 and April 2020, but it is unclear whether this was due to headaches, and the time loss was not reported as being related to the worker's claim or workplace injury. The panel would have expected that if the worker was continuing to experience headaches as a result of his accident, he would have sought further medical attention and/or contacted the WCB. In the circumstances, the panel is unable to relate such absences to the workplace injury.

Chart notes from the treating family physician were provided to the WCB at their request, which covered the period from April 24, 2020 to October 12, 2020. The chart notes from the April 24, 2020 visit indicated that the worker was complaining of headache and fever from the previous week, and was diagnosed with febrile illness and sinusitis. The chart notes show the worker attended 11 further visits with his family physician between April 24 and July 28, 2020, during which time headaches were noted and he was treated for sinusitis, post-viral headache and migraine. The physician's notes were fairly detailed and the worker indicated at the hearing that his family physician was thorough in her assessment; that the visits were lengthy and not rushed. There does not appear to have been any reference during those visits to the December 13, 2019 accident or injury.

In the chart notes from a virtual visit on September 8, 2020, the worker's family physician noted that the worker had called to advise with respect to a previous head injury at work on December 13, 2019, and indicated he had had ongoing difficulty with headaches, which occurred in the same area as from his injury from work. The physician provided a diagnosis of a "HX [history] of past head injury with chronic headaches." The panel is unable to place weight on this change in diagnosis which was based on the information provided by the worker, including his report of ongoing difficulties with headaches.

In response to questions at the hearing as to what brought the workplace accident back to his attention at that time and led to his contacting his family physician, the worker stated:

At the time my wife, who is a doctor, chiropractor, was doing a head trauma cranial seminar. And when she was reading it she, she was the one that seen it and she said to me, like, hey, you know, your symptoms are really bang on for a head trauma accident, and you should really perceive this as a head trauma and talk to your doctor about it.

So that's how I brought it toward my physician, and I told my doctor about it and she said, okay, well, that sounds right. So that's how I pursued it from there…

…I told her the history of the accident, and she was agreeing with it, and she agreed with me, with the principle of the accident, and she, she pursued it with it being a head accident, a head trauma accident.

The worker further indicated in his conversation with the WCB on September 25, 2020, that "…he was going through some folders at home and came across his WCB paperwork and the area where he has the headaches is the exact spot of where the injury was so that is when he felt that it was related to the December injury."

In the panel's view, if the worker had persistent headaches since his December 13, 2019 accident, as he later indicated, it does not make sense that he would not have recognized that his headaches were in the same area as where he had been struck or mentioned that to this family physician earlier.

In a further letter dated June 13, 2021, the worker's treating family physician wrote to the worker's union that:

[The worker] as you are aware has had chronic headaches since his head injury on December 13, 2019.

As his development of his headaches occurred with his head injury in December 2019, it appears that his headaches are related to this head injury…

[The worker] had a febrile illness in April 2020 which caused a temporary exacerbation of his headaches but was not the primary cause of his headaches.

The panel is unable to place weight on the family physician's opinion in this regard. The panel notes that the physician's conclusion that it "appears" the headaches are related to the worker's head injury is speculative in nature. The panel further finds that the file evidence does not support the worker's claim of continued symptomatology or of having sustained a more serious injury in December 13, 2019, nor do we accept that the worker's sinusitis or viral infection would have caused an exacerbation or recurrence of any such injury.

The panel is similarly unable to place weight on the April 1, 2021 report from the treating neurologist. The panel notes that the neurologist's comments and conclusions are based on an initial virtual assessment of the worker more than 15 months after the December 13, 2019 workplace accident. The panel finds that the neurologist relied on the history as provided by the worker at that time, and the neurologist's comments were made without full knowledge of the history of the worker's injury and claim.

Information on file shows that the worker took a significant number of sick and vacation days between April and September 2020, including more than 30 sick days in April and May 2020 alone. The panel is unable to account for the worker's sick days during this period of time as being related to the workplace accident, and is satisfied that if the employer had been made aware that these absences were related to the workplace injury, they would have advised the worker to report the absences to the WCB as being claim-related.

The worker said he talked to his supervisor "all the time" about his headaches and that he felt they were related to his injury. The panel notes that the WCB spoke to the worker's manager, but finds the information provided by the manager was unclear, and does not support that the worker was experiencing persistent headaches from the time of the injury. The panel is further of the view that if the worker was talking to the manager in this way and relating his headaches to the workplace incident, it does not make sense that the worker would not have raised the issue of his ongoing difficulties or their being related to his workplace injury with the family physician or the WCB much earlier than he did.

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 further medical aid as a result of his December 13, 2019 workplace accident. The worker is therefore 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 17th day of January, 2022