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 benefits after October 17, 2018. A videoconference hearing was held on April 14, 2022 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after October 17, 2018.

Decision

The worker is entitled to benefits after October 17, 2018.

Background

The worker filed a Worker Incident Report with the WCB on December 9, 2013, reporting that on December 4, 2013, while outside their workplace, "…a section of over-hanging snow broke away from the roof/building & came down or fell off and landed on the back of my head. (Knocking my head forward & down)." The employer provided the Employer's Accident Report to the WCB on December 10, 2013, reporting an identical incident and noting the worker had not missed time from work. On January 6, 2014, the WCB provided a letter to the worker accepting the claim.

On January 23, 2014, the worker contacted the WCB to advise they attended for medical treatment that day due to their workplace injury. The worker further advised that the treating physician diagnosed concussion and whiplash and recommended a CT scan, physiotherapy and that the worker be off work for a week. The worker confirmed they had not sought medical treatment until then but had experienced symptoms of pain and dizziness after the December 4, 2013 workplace accident and noted they sought medical treatment due to continued headaches and problems with their vision. The worker indicated their supervisor and co-workers were aware of their difficulties, including their director who suggested they seek treatment.

On January 31, 2014, the WCB received a copy of the January 23, 2014 treatment record from the worker’s visit to urgent care centre which confirmed the worker reported a sudden onset of vision difficulties after they were struck in the back of the head by a "chunk of ice" in December 2013. The treating physician noted the worker reported feeling foggy, headachy, with vision changes, blurry and wrong colours but no nausea or vomiting, all of which increased when at work. The physician reported tenderness on the right side of the worker's neck, diagnosed "whiplash +/- concussion" and recommended physiotherapy.

The worker contacted the WCB on February 5, 2014 and advised they again sought urgent care on February 3, 2014 due to ongoing difficulties. At that time, the worker agreed to have a CT scan. The WCB advised the worker that the delay in seeking medical treatment made it difficult for the WCB to establish a relationship between their current difficulties and the December 4, 2013 accident. The February 3, 2014 urgent care centre visit report set out that the worker attended for treatment due to confusion, headache and nausea and that the treating physician diagnosed the worker with a concussion after reviewing the CT scan, which indicated normal findings. The worker was referred to a neurology clinic and diagnosed with post-concussion syndrome.

The WCB spoke with the worker's supervisor and co-workers, all of whom confirmed the mechanism of injury of the snow falling onto the worker on December 4, 2013 and that the worker reported feeling sore after the incident but did not report loss of consciousness, headache or dizziness. The co-workers further reported the worker advised of headaches and not feeling well since returning to work in January 2014 after holidays.

On March 7, 2014, the WCB advised the worker their claim was accepted for an accident that occurred on December 4, 2013 but they were not entitled to wage loss or medical aid benefits after that date.

On March 20, 2014, the WCB received a report from the treating family physician for an appointment on March 14, 2014. The physician diagnosed post concussive syndrome, noting the worker’s report of persistent headaches, memory impairments and slowing of processing speeds. The physician noted the worker was awaiting a neurology consultation but was feeling better with physiotherapy and recommended the worker continue treatment with expectation of gradual resolution of symptoms.

When the WCB spoke with the worker on March 26, 2014 to discuss the claim, the worker advised that after the accident, they would get headaches that increased in severity as their workday progressed with blurred vision, and that by January 2014, they noticed colours changing as well and their symptoms occurring earlier in the day. When asked why they did not report neck difficulties until they were seen at the urgent care centre on January 23, 2014, the worker indicated they were not aware of the difficulties until the urgent care physician advised their head pain was due to decreased range of motion in their neck.

A WCB medical advisor reviewed the worker's file on March 28, 2014 and noted that when the worker reported a minor head injury on December 4, 2013 there was "…no report of immediate disruption of brain function, as manifested by an immediately apparent i) alteration of mental state and/or ii) impairment of neurologic function, to meet the criteria for a diagnosis of concussion." The advisor further noted file memoranda dated January 23, 2014 and February 26, 2014 did not indicate neurological impairment and concluded that symptoms occurring at a later date could not reliably support that the worker sustained a concussion on December 4, 2013. Accordingly, any treatment or time away from work required for reported difficulties now could not be accounted for in relation to the December 4, 2013 incident.

On April 2, 2014, the WCB advised the worker that there would be no change to the earlier decision they were not entitled to benefits in relation to the workplace accident.

The worker requested reconsideration of the WCB's decision to Review Office on May 23, 2014. Included with the worker's request was a copy of a May 7, 2014 narrative report from their neurologist, containing a chronology of the worker's reporting of their complaints since the workplace accident and providing their opinion that the worker's symptoms since that time were "…completely consistent with having had a head injury involving an impact to her skull and to her neck which has resulted in a set of post-traumatic symptoms compatible with post-traumatic or post-concussion syndrome." The treating neurologist also advised they had referred the worker for an MRI study.

On May 27, 2014, Review Office returned the worker's file to the WCB's Compensation Services for review of the new medical information. On June 10, 2014, the WCB advised the worker the new medical information had been reviewed but there would be no change to the earlier decision.

On June 12, 2014, the worker requested Review Office reopen their request for reconsideration based on their May 23, 2014 submission. On August 1, 2014, the worker provided Review Office with a lengthy submission including additional medical information, information on the job duties and information from their co-workers. On August 6, 2014, Review Office again returned the worker's file to the WCB's Compensation Services to gather further information. The WCB gathered additional information from the treating physiotherapist and spoke with the co-worker who was with the worker on the date the workplace accident occurred. On August 27, 2014 the WCB again advised the worker the information gathered did not support a change to the earlier decisions they were not entitled to benefits.

The worker contacted Review Office on August 27, 2014 and requested to proceed with a reconsideration based on the information they submitted previously. The worker provided Review Office with a copy of the August 24, 2014 MRI indicating "The findings are suspicious for small cortical contusion in the anterior frontal and left occipital lobes. Needs clinical correlation." Review Office requested a WCB medical advisor review the MRI, who in turn requested a third-party neuroradiology review. Review Office also spoke with some of the co-workers referred to in the worker’s submission, all of whom reported the worker had difficulties, including memory issues and light sensitivity after the workplace accident. On September 25, 2014, the third party neuroradiologist opined the findings on the MRI were "…clearly artefactual in nature" and the MRI study indicated a normal examination. On September 29, 2014, Review Office determined the worker was entitled to wage loss and medical aid benefits and returned the worker's file to the WCB's Compensation Services for further adjudication.

At the request of the WCB, the worker attended for a call-in examination with a WCB medical advisor on October 29, 2014. The worker requested to return the following morning, October 30, 2014 for a further assessment as they noted their symptoms were not as severe when they had not been exposed to sunlight as long. The advisor opined that "The apparent improvement in [the worker's] condition which she attributed to lack of sunlight exposure is not typical for patients with a complaint of photophobia. It is not accounted for in relation to a post-concussion syndrome type condition. Under stress, the improvements appeared to fade." The WCB medical advisor went on to provide the reported mechanism of injury and the worker's alternation in mental state reported by their co-workers met the criteria for a diagnosis of a concussion. The advisor noted:

"A degree of post-concussion symptoms would not be unexpected, with symptoms typically most severe immediately following the incident and gradually subsiding subsequently. This has not been the course reported by [the worker]. The development and/or progression of atypical symptoms in the weeks to months subsequent to the injury are not typical of post-concussion syndrome. At this point, now eleven months post-injury, the reported symptoms and functional limitations are not likely accounted for by post-concussion syndrome."

The WCB medical advisor also noted the worker had been receiving physiotherapy treatment for approximately nine months with no reported improvement and therefore recommended continued physiotherapy treatment not be approved.

On November 26, 2014, the WCB advised the worker they would provide wage loss benefits from January 23, 2014 to December 2, 2014 inclusive and final as it had determined the worker was recovered from the workplace accident.

On April 30, 2015, the worker's representative requested the WCB reconsider the November 26, 2014 decision on the basis that the worker was not recovered from the December 4, 2013 workplace accident. In support of this position, the worker’s representative submitted medical reports on concussions and post-concussion syndrome, a February 11, 2015 report from the worker's treating neurologist in support of the reconsideration request noting head injury symptoms may take months to recover, and a further narrative report from the worker's neurologist dated April 9, 2015 with information supporting the worker's diagnosis of post-concussion syndrome. On May 11, 2015, the worker advised the WCB they had attended for treatment with a psychologist and the WCB obtained the report dated August 26, 2015 from the March 31, 2015 appointment. In that report, the psychologist provided an opinion that the worker "…had a chronic Post Concussive Syndrome (sic)…" complicated by workplace issues when they attempted to return to work. The psychologist recommended a full neuropsychological assessment and a further brain MRI.

On September 14, 2015, a WCB medical advisor reviewed the new medical information along with the worker's file and provided an opinion that the new information did not change their previous opinion the worker's current difficulties were not related to the December 4, 2013 workplace accident more than 1.5 years previous. The WCB advised the worker and their representative on September 22, 2015 that there would be no change to the earlier decision.

The worker's representative requested reconsideration of the WCB's decision to Review Office on February 6, 2016. The representative presented argument that the worker's treating healthcare providers supported the worker continued to experience difficulties related to the December 4, 2013 workplace accident and required further benefits. On March 1, 2016, Review Office agreed with the worker's representative and determined the worker was entitled to benefits after December 2, 2014 and returned the worker's file to the WCB's Compensation Services for further adjudication.

The worker continued to receive various treatments, including physiotherapy and specialized vestibular physiotherapy, as well as attending for appointments with their treating family physician and neurologist. The WCB requested and received historical chart notes from the worker's treating family physician on March 23, 2016. On March 2, 2016, the treating family physician referred the worker to a neuro-ophthalmologist. By October 7, 2016, the worker's family physician reported the worker was still experiencing "…chronic dizziness and impaired concentration progress." The physician noted "Nothing really changed at this point. Still, no major gain" and described the worker's progress as stable since the workplace accident over two years previous. The worker's appointment with the neuro-ophthalmologist was noted to still be pending.

At the request of the WCB, a WCB medical advisor again reviewed the worker's file on November 9, 2016. The medical advisor opined that the treatments requested by the worker's healthcare providers including vestibular therapy, formal neuropsychological assessment, psychological treatment, referral to a neuro-ophthalmologist and occupational therapy assessment of their home, would not be medically accounted for in relation to the subjective reporting of symptoms by the worker and the workplace accident that occurred over two and half years previously. On November 18, 2016, the WCB advised the worker they were not entitled to further benefits after November 25, 2016 as it had been determined upon review of their file that they had recovered from the workplace accident.

The worker's representative again requested reconsideration of the WCB's decision to Review Office on January 10, 2017, providing evidence that the worker's treating healthcare providers reported the worker continued to experience symptoms of the December 4, 2013 workplace accident and required further treatment and benefits. Review Office again overturned the WCB's decision and found the worker was entitled to further benefits after November 25, 2016, returning the file for further adjudication.

On February 13, 2017, the WCB received a copy of a December 14, 2016 referral report from the worker's optometrist to the neuro-ophthalmologist, indicating their concerns with their recent examination of the worker, and noting the worker's complaint of chronic photophobia. A February 27, 2017 progress report from the treating family physician reported the worker's chronic dizziness and headache with associated light sensitivity. The worker attended for an appointment with a new neurologist on September 21, 2017 as the previous neurologist retired. In the report from that appointment received by the WCB on October 12, 2017, the neurologist noted the worker's reported symptoms of photophobia and headache, with diminished range of motion in their neck. The neurologist requested the worker's treating family physician contact them to discuss the worker's treatment and noted the previous neurologist's diagnosis of post-concussion syndrome was reasonable. The neurologist also queried whether the worker had "…an additional psychiatric issue…" given the worker's presentation in their office.

The neuro-ophthalmologist assessed the worker on March 29, 2018 and in their report received by the WCB on April 5, 2018, noted the worker's report of "…bright scotomata and migraine with visual aura, possible diplopia, imbalance, restricted rightward neck motion, speech and cognitive dysfunction as well as fecal incontinence, all of which are worsened by or occur only in the context of bright light." The treating neuro-ophthalmologist cautioned the worker that attributing all of their symptoms to exposure to bright light may lead to a missed diagnosis by minimizing other associations that may cause those symptoms. The neuro-ophthalmologist stated the worker had a "V-shaped exotropia" with some of the symptoms related to "…involuntary right eye movements and preference for looking down…" which were likely attributable to a childhood case of strabismus or crossed eyes, as opposed to the head trauma sustained in the workplace accident. The neuro-ophthalmologist also recommended medications to help with the worker's migraines.

The worker contacted the WCB on June 13, 2018 and requested coverage for psychological treatment. At the WCB’s request, the worker's file was reviewed by both a WCB psychological advisor on June 14, 2018 and a WCB medical advisor on June 18, 2018. The psychological advisor was asked whether the worker had a psychological diagnosis related to the December 4, 2013 workplace accident in consideration of the comments made by the treating neuro-ophthalmologist in their report. The psychological advisor noted that a November 22, 2016 chart note from the worker's treating family physician contained a diagnosis of a conversion disorder, which is a form of somatoform disorder that is caused by workplace injury but can arise in the context of an injury, or any form of stressor, particularly in the context of a psychiatric history. The WCB psychological advisor went on to outline their review of the worker's file, including the August 24, 2015 psychologist’s report noted a history of anxiety, panic and agoraphobia, with previous psychiatric treatment reported. That report also noted the worker was "…somatically-focused, reported workplace issues, and had post-accident depressed mood and anxiety related to her symptoms, post-accident work, and financial situation." The WCB psychological advisor concluded the diagnosis of conversion disorder was not related to the workplace accident.

In the June 18, 2018 review by the WCB medical advisor, the medical advisor noted the worker's file was discussed with the WCB psychological advisor who agreed the worker’s current difficulties were inconsistent with the diagnosis of post-concussion syndrome and rather, most consistent with a diagnosis of conversion disorder. On July 25, 2018, the WCB advised the worker it had determined their current difficulties were not related to the December 4, 2013 workplace accident and provided the worker with twelve weeks' wage loss benefits to October 17, 2018.

On August 9, 2018, the worker provided a lengthy, detailed submission to Review Office outlining their need for further benefits and requesting reconsideration of the WCB's decision they were not entitled to benefits after October 17, 2018. On September 25, 2018, Review Office agreed with the opinions of the WCB psychological and medical advisors and found the worker was not entitled to further benefits after October 17, 2018.

The worker's representative provided a submission to Review Office on October 14, 2021 and requested Review Office reconsider the September 25, 2018 decision. The representative submitted further medical reports from a psychiatrist, a second neurologist, a new family physician and a sports medicine physician who specialized in head injuries. The new medical information supported the worker’s position that they sustained a mild traumatic brain injury as a result of the December 4, 2013 workplace accident and continued to suffer the effects of that injury and refuted the opinions of the WCB psychological and medical advisor who attributed the worker's difficulties to a conversion disorder. The worker’s representative argued the medical evidence supported the worker’s continued need for further wage loss and medical aid benefits after October 17, 2018.

On November 19, 2021, Review Office upheld the previous decision the worker was not entitled to further benefits and found the worker's current difficulties were not related to the injury sustained as a result of the December 4, 2013 workplace accident. The worker's representative filed an appeal with the Appeal Commission on November 22, 2021 and a videoconference hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act, regulations under the Act and the policies established by the WCB's Board of Directors. The Act in effect on the date of the worker's claim of accident is applicable.

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 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 because of an accident, compensation is payable under s 37 of the Act. Section 39(2) of the Act sets out that wage loss benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years.

Section 27 allows the WCB to provide a worker with such medical aid as the board considers necessary to cure or provide relief from an injury resulting from an accident.

Worker’s Position

The worker appeared in the hearing accompanied by family members and represented by a union representative. Another union staff person attended the hearing as an observer. The union representative provided an oral submission outlining the worker’s position and also relied upon a written submission dated April 6, 2022, provided to the panel in advance of the hearing. The worker offered testimony through answers to questions posed by their representative and in response to questions posed by members of the appeal panel.

The worker’s position as outlined by their representative is that the worker developed post-concussion syndrome as a direct result of the head injury sustained at work on December 4, 2013 and that they continued to suffer the ongoing effects of this compensable injury beyond October 17, 2018.

The worker’s representative outlined for the panel the medical opinions that support the worker’s position noting that only the worker’s family physician (in November 2016) and the WCB medical and psychological advisor (in June 2018) considered that the worker’s symptoms are best explained by and consistent with the diagnosis of conversion disorder. The worker’s representative noted that the treating health care professionals who personally assessed the worker have countered this proposed diagnosis or supported a neurological basis for the worker’s presentation, arising out of the compensable accident and consistent with the diagnosis of post-concussion syndrome.

The worker’s representative noted that the possible diagnosis of conversion disorder was “mentioned offhandedly” in the treating family physician’s chart note of November 22, 2016 and that despite seeking no clarification from the physician to account for or validate this diagnosis, the WCB medical advisor and WCB psychological advisor came to the conclusion that conversion disorder would “wholly account for” the worker’s presentation and was not caused by or related to the workplace injury. The worker’s representative further noted that in determining the worker was not entitled to benefits beyond October 17, 2018, the WCB relied upon the opinion of the same medical advisor who had provided a total of 8 prior opinions expressing the same or similar opinion and suggested that the June 18, 2018 opinion may reflect a bias of that medical advisor and should therefore be given less, rather than more weight by the panel.

The worker’s representative submitted that the medical opinions provided by the treating professionals do not substantiate the diagnosis of conversion disorder but noted the worker’s alternative position that if the panel determines this to be a valid diagnosis, the diagnosis is more likely than not a subsequent injury that developed primarily as a result of the compensable injury. The worker’s representative confirmed that it is not the worker’s position that this is an appropriate diagnosis; however, there is evidence that the worker has struggled with psychological symptoms as a consequence of the persistent effects of the head injury. There are multiple opinions on file to support a finding that the worker’s compensable injury was complicated by psychological difficulties, including the treating neurologist’s report of October 15, 2014, the treating family physician’s report of November 25, 2014, the consulting psychologist’s August 24, 2015 report and the further report of the treating neurologist of January 15, 2016. The worker’s representative noted that it is not unexpected that a person who sustained a concussion subsequently manifests psychological symptoms including anxiety and depression.

Further the representative argued that although post-concussive symptoms are generally expected to gradually improve with time, that was not the worker’s experience; rather, the worker has continued to struggle with symptoms of post-concussion syndrome that are the result of the 2013 workplace injury.

The worker testified to their pre-accident work history with the employer and noted that after the accident, they immediately noted feeling wonky and confused, and soon began to struggle immensely at work. When the worker noted vision problems were causing them to bump into things, they sought medical attention.

The worker noted that they have attempted various treatment options, including physiotherapy, vestibular physiotherapy, medication, eye exercises and glasses with special lenses. The worker confirmed they continue to seek treatment and are seeking reimbursement of medical expenses incurred and going forward.

The worker described their ongoing symptoms to the panel, including visual difficulties that cannot be corrected by their lenses, ringing in their ear, daily headaches, dizziness and ongoing sensitivity in terms of mood. The worker described feeling anxious about choices, depressed and fearful of developing related problems, prone to angry outburst and frustration. The worker indicated that their psychiatrist, who has provided treatment since 2020, advised that they won’t be who they were before but need to be proud of the effort and outcomes achieved so far in their recovery. The worker stated that they believe their symptoms have been stable over time but noted that they have learned to cope with and manage them. The worker noted their belief that their symptoms are likely permanent and they are working on living with that reality.

The worker confirmed to the panel that their treating family physician in 2016 did not speak to them about conversion disorder. The worker recalled some errors in their medical chart in the past when the clinic confused them with another patient. The worker noted that although the family physician referred them to a psychologist it was not for assessment for conversion disorder. When the worker was assessed by a different neurologist in 2019, that neurologist also referred the worker to a new general practitioner, who provided a complete assessment and made multiple further referrals to other specialists including their psychiatrist, a brain injury specialist and another neurologist.

In sum, the worker’s position is that they continued to experience the symptomatic effects of and receive treatment for the injury sustained in the December 4, 2013 workplace accident beyond October 17, 2018 and as a result, the worker is entitled to further benefits beyond that date.

Employer’s Position

The employer did not participate in the hearing.

Analysis

The issue on appeal is whether the worker is entitled to benefits after October 17, 2018. In order to grant the worker’s appeal, the panel would have to determine that the worker continued to require medical aid or to experience a loss of earning capacity related to the compensable workplace injury of December 4, 2013 beyond October 17, 2018. As outlined in the reasons that follow, the panel was able to make such a determination and therefore the worker’s appeal is granted.

The brief history of this claim is that the worker sustained a head injury at work on December 4, 2013 when a chunk of snow/ice fell from the roof above her onto her head and neck. The WCB ultimately accepted that the worker sustained a concussion and whiplash as a result of this accident and until October 17, 2018 provided benefits including wage loss and medical aid to the worker in relation to their continuing diagnosis of post-concussion syndrome. The WCB determined the worker was no longer entitled to benefits after October 17, 2018 as the evidence did not support an ongoing causal relationship between the head injury sustained in the workplace accident of December 4, 2013 and the worker’s continuing presentation. The WCB determined that the worker’s continuing symptomatic presentation at that time related to the diagnosis of conversion disorder, described by the WCB medical advisor as a somatoform disorder that is psychiatric in origin and cannot be related to a workplace injury.

The panel noted the evidence that this diagnosis was first proposed in a November 22, 2016 chart note by the worker’s treating family physician and ultimately led to the WCB’s determination that the worker was no longer dealing with the effects of their compensable injury. The family physician note indicated the worker “[h]ad a conversion disorder. I think this probably would be the diagnosis that seems to make the most sense” although the panel noted the physician did not set out any specific clinical or diagnostic findings to substantiate this new possible diagnosis. Further, the physician’s previous clinic notes of October 7, 2016 set out that the worker remained stable and “Post-head injury, the patient has not really changed in [their] condition. Everything has been stable since the accident which has been over 2 years ago, at this point” and the subsequent chart notes of January 17, 2017 set out that the worker’s head injury left them with “permanent sequelae” including visual defects, headaches, trouble concentrating and stress, and has been unable to work. The chart notes provided to the WCB contain no further mention of this possible diagnosis and later reporting by this physician to the WCB does not mention conversion disorder, although the panel noted that the family physician’s comments of April 13, 2018 that the worker would likely benefit from psychotherapy and counselling in relation to multiple somatic complaints. Further, on June 14, 2018, the family physician reported the “same symptoms but dysthymia worsening” and again recommended psychotherapy, and on July 13, 2018, the physician reported that the worker’s anxiety disorder was complicating their recovery and again suggested psychotherapy.

The WCB psychological advisor who reviewed the file on June 14, 2018 with respect to the psychotherapy requested by the treating family physician, stated:

“The diagnosis on file, made by the attending physician on November 22, 2016 is Conversion Disorder. The diagnosis appears to be an attempt to diagnosis (sic) a constellation of reported symptoms not explained by a physical injury. Conversion Disorder is a form of somatoform disorder. This diagnosis is not materially related to the workplace injury of December 4, 2013, as conversion disorder is not caused by a workplace injury. Rather, it can arise in the context of an injury, or any form of stressor, particularly in the context of a psychiatric history.”

The WCB psychological advisor went on to note the file evidence indicating a psychiatric history, based on an assessment by a psychologist dated August 24, 2015 and stated that there is no “empirical evidence” to support a link between somatoform disorders such as conversion disorder and workplace injuries. The psychological advisor therefore concluded that “the diagnosis of Conversion Disorder is not materially associated with the workplace injury of December 4, 2013.” Of note, the WCB psychological advisor was not asked for and did not provide any opinion on whether the worker’s prior diagnosis of post-concussion syndrome was still valid.

The panel also reviewed the August 24, 2015 opinion of the psychologist, noting it was based on a single assessment of the worker on March 31, 2015. The psychologist noted the worker provided a history that included seeking psychological support for “anxiety, panic, agoraphobia” between 2000-2002 but that the worker did not report treatment with any “medicine or hospitalization. These symptomologies were not subsequently active or interfering with [their] work.” No history of more significant mental health concerns is described. The psychologist does however provide an opinion as to the worker’s ongoing diagnosis, stating that the worker had “…a chronic Post Concussive Syndrome…complicated by workplace issues” in the attempted graduated return to work and a perceived lack of workplace support over time, as well as being “somatically sensitive, and there appeared to be apparent post-accident related depressed mood and anxiety regarding [their] symptom and post-accident work and financial situation.”

The WCB medical advisor, in their opinion of June 18, 2018 confirmed their belief that the diagnosis of conversion disorder would “wholly account for” the worker’s current presentation. In providing this opinion, the WCB medical advisor relied upon a September 26, 2017 opinion from a consulting neurologist that “I understand that [the worker] was given the diagnosis of postconcussion syndrome by [the treating neurologist], and certainly this would be a reasonable diagnosis. However I wonder if [the worker] has an additional psychiatric issue given [their] presentation in my office today.” The panel noted that although the medical advisor relied on the neurologist’s statement regarding the worker’s possible psychiatric issue, the medical advisor disputed the diagnosis of post-concussion syndrome and noted that given the relatively minor nature of the head injury and the time passed since that injury, as well as the “very atypical constellation of symptoms and perceived functional limitations” the worker’s current presentation “can no longer be accounted for in relation to a diagnosis of post concussion syndrome.” The medical advisor further noted that the treating neurologist’s most recent diagnosis of post-concussion syndrome was provided in a report from January 15, 2016.

The panel considered that the WCB medical advisor gave significant weight to what would appear to be a query or comment rather than a definitive diagnosis by the worker’s treating family physician with respect to a possible psychological condition that would not be expected to be within the area of expertise of a family physician, but did not give equal weight to all aspects of the opinion of the consulting neurologist of September 26, 2017 that the diagnosis of post-concussion syndrome was reasonable in relation to the worker. Further, the panel noted the medical advisor did not follow up with the treating physician in November 2016 to inquire as to the diagnostic findings to support their proposed diagnosis despite reviewing the file around that same time, and only offered an opinion on the family physician’s diagnostic comment nearly two years after it was noted, again without having sought confirmation of any more recent clinical findings to support the proposed diagnosis.

The evidence submitted on behalf of the worker, after the June 2018 reviews by the WCB medical advisor and psychological advisor, confirms that the worker continued to seek treatment for symptoms they reported as being related to their head injury. As set out in their October 14, 2021 submission to the Review Office, the worker subsequently sought further treatment from a number of medical professionals including:

• A psychiatrist who provided an opinion on October 26, 2020 that “I do not believe [the worker] suffers from conversion disorder. Symptoms have a valid neurological base related to [their] accident. I do not see any secondary gain for the perpetuation of [their] symptoms.” 

• A sport medicine physician specializing in head injuries who provided an opinion on December 10, 2020 that the worker’s ongoing “deficits, in my opinion, are related to [their] workplace accident” 

• A neurologist who concluded, in an opinion dated December 28, 2020, that the worker’s “headaches are likely post traumatic” and that the worker’s “symptoms are likely due to persistent post-concussion syndrome.” 

• A new family physician who concluded, in an opinion dated October 5, 2021 that the medical evidence “does not support a diagnosis of conversion disorder” noting that the diagnostic criteria for that disorder are not met because the worker’s “symptoms are easily explained by [their] head injury”

There are numerous medical reports from the treating professionals provided to the file by the worker’s representative that support a continuity of the worker’s symptomatic presentation both prior to October 17, 2018 and beyond that date. There is also ample evidence before the panel that the worker sought ongoing treatment beyond that date related to the symptoms they had been experiencing from soon after the compensable injury occurred, which the WCB accepted as post-concussion syndrome until 2018, although there was no evidence of any change in the worker’s presentation at that time nor of a recovery from that condition.

The panel accepts the opinions provided by the treating medical professionals that the worker’s ongoing presentation is not consistent with the proposed diagnosis of conversion disorder and is consistent with the continuing diagnosis of post-concussion syndrome. Where there is a difference of opinion between the treating professionals and the WCB medical and psychological advisors, in this case the panel prefers and gives greater weight to those who have continued to investigate and treat the worker. We are satisfied that the evidence supports a finding, on a balance of probabilities, that the worker continued to experience the effects of post-concussion syndrome beyond October 17, 2018 and further that the worker required ongoing treatment and benefits beyond that date as a direct result of the compensable workplace injury of December 4, 2013.

The worker’s representative also argued that there is evidence of the worker’s development of psychological symptoms as early as 2014, as a consequence of the persistent effects of their injury and the associated circumstances in their workplace, stating that this position is supported by numerous medical opinions including that of the treating neurologist, the initial treating family physician, the consulting psychologist. In this regard, the panel noted that although the WCB determined that the worker was not entitled to medical aid in relation to the specific diagnosis of conversion disorder, the WCB did not make a determination as to whether there was any other psychological condition or injury arising out of the compensable workplace injury nor as to the worker’s entitlement to treatment for such a condition. The panel therefore does not make any determination in this respect.

The panel determines that the worker is entitled to benefits after October 17, 2018 and the appeal is therefore granted.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 2nd day of June, 2022