The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to wage loss benefits after May 16, 2021. A videoconference hearing was held on April 28, 2022 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after May 16, 2021.

Decision

The worker is entitled to wage loss benefits after May 16, 2021.

Background

The WCB received an Emergency Visit Summary on March 31, 2021, indicating the worker was transported to the emergency department after being in a motor vehicle accident on March 26, 2021. The summary noted the worker's report of being in the back seat of the work vehicle, wearing a seat belt, when the accident occurred. The worker reported hitting the back of their head hard on the seat when the vehicle came to a stop. Further, the treating emergency physician noted the worker indicated this was the second motor vehicle accident in the previous two weeks, with the worker also reporting they sustained concussion and whiplash injuries previously. The worker advised the treating emergency physician they had four episodes of vomiting since the accident and were feeling lightheaded and drowsy. It was noted the worker recalled all the events of the accident and denied losing consciousness but was complaining of severe occipital headache, photophobia, nausea, neck and right shoulder pain, along with upper and lower extremity numbness and tingling. A CT scan of the worker's spine and an x-ray of the worker's cervical spine both indicated normal findings, and a diagnosis of concussion, whiplash injury and neck strain was provided.

At follow up with their family physician on March 30, 2021, the worker reported worsening symptoms of nausea, photophobia and headache and the physician recommended the worker remain off work for a minimum of two weeks and made a referral to a concussion clinic.

The worker submitted a Worker Incident Report to the WCB on April 7, 2021 reporting an injury to their head that occurred on March 26, 2022 when they were in a motor vehicle accident. In the Report, the worker provided details of the events immediately after the accident and advised they were taken to a local emergency room where they were diagnosed with a concussion and placed off work. The worker noted they were referred on a rush basis to a neurologist due to sustaining a second concussion within a month and that they were experiencing "…concussion side effects, bruises to arms and legs."

The worker attended for an initial physiotherapy assessment on April 6, 2021. No diagnosis was provided but the physiotherapist noted the worker's report of bilateral neck pain, nausea, dizziness and headache and recommended they remain off work for two weeks.

The WCB spoke with the worker on April 8, 2021 and confirmed the mechanism of injury. The worker advised they continued to experience difficulties with headaches, nausea and vomiting and contusions to their arms and legs. The WCB accepted the worker's claim and the payment of various benefits started.

At a follow-up appointment on April 13, 2021, the worker's treating family physician noted the worker's reporting of a slight improvement in their headaches, nausea and photophobia. On examination, the physician found the worker had full range of motion in their neck and a normal neurological examination. The treating physician recommended against the worker continuing with physiotherapy until being reassessed in two weeks. On April 20, 2021, the worker was examined by a neuro-ophthalmologist who diagnosed occipital neuralgia caused by concussion, concussion and post-concussion syndrome and recommended consultation with a concussion specialist and vestibular physiotherapy.

A WCB medical advisor reviewed the worker's file and their previous WCB file on April 26, 2021. The medical advisor opined the diagnosis related to the March 26, 2021 workplace accident was a whiplash injury, in the background of pre-existing degenerative cervical spine changes (osteoarthritis), with possible vestibular dysfunction. The medical advisor stated that although the treating healthcare providers diagnosed concussion, the specific criteria in accordance with WCB policies had not been met for that diagnosis to be accepted by the WCB. The WCB medical advisor went on to note that the "…natural history of a whiplash injury typically is for recovery over the course of 4-8 weeks with slightly longer durations known in the presence of pre-existing degenerative cervical spine conditions" and the natural history of vestibular dysfunction was for recovery over the course of several weeks to months with appropriate therapy. Both physiotherapy for whiplash and vestibular therapy were confirmed as appropriate treatment and workplace restrictions were recommended. The medical advisor opined that the worker's pre-existing degenerative cervical spine osteoarthritis was not structurally aggravated or enhanced by the workplace accident.

The employer was provided with the restrictions on April 30, 2021. On May 7, 2021, the employer advised they could accommodate the worker starting on May 10, 2021.

On May 10, 2021, the WCB received correspondence from the treating family physician stating their disagreement with the WCB's decision the worker had not sustained a concussion as a result of the workplace accident. The physician also noted their concern with the worker returning to work due to their ongoing symptoms.

On May 11, 2021, the worker attended for an initial vestibular physiotherapy session. The worker reported dizziness, nausea, imbalance, fatigue, headache, photo and photosensitivity and neck pain. Upon examination, the treating physiotherapist noted decreased range of motion in the worker’s cervical spine but normal vestibular-ocular and benign paroxysmal positional vertigo tests and diagnosed post-concussion with an element of cervicogenic dizziness. Further physiotherapy treatment was recommended before the worker participated in a gradual return to work.

On May 14, 2021, the employer again advised the WCB they could accommodate the worker within their restrictions beginning on May 17, 2021. On the same date, the WCB contacted the employer for further clarification of the March 26, 2021 workplace accident. The employer advised the motor vehicle accident did not involve a collision, just an abrupt stop and the other occupants of the vehicle did not suffer any injuries.

A WCB medical advisor reviewed the treating neuro-ophthalmologist's report of April 20, 2021, along with the worker's file, noting the neuro-ophthalmologist relied upon a single metric as a clinical finding to support the diagnosis of concussion and requested further information on the assessment of convergence with a WCB neuro-ophthalmology consultant. Further review by a WCB physical medical consultant was also requested.

On May 26, 2021, the WCB neuro-ophthalmology consultant provided their opinion in a memorandum to the worker's file. The consultant noted the worker's treating neuro-ophthalmologist's report indicated the worker did not report double vision at both near and far distance and in all directions of gaze and opined the absence of double vision, along with the other reporting by the neuro-ophthalmologist did not support a diagnosis of a concussion.

The WCB advised the worker by letter dated on June 4, 2021that they were not entitled to benefits after May 16, 2021 as their employer had suitable modified duties within their restrictions available for them as of May 17, 2021.

On June 10, 2021, the worker contact Review Office to confirm they wished to proceed with the request submitted on May 25, 2021 for reconsideration of the June 4, 2021 decision to end entitlement to benefits after May 16, 2021. The WCB gathered further information from the worker and the employer, including contact information for the worker's co-workers present in the vehicle at the time of the March 26, 2021 workplace accident. The WCB medical advisor spoke with the treating neuro-ophthalmologist on July 8, 2021, who noted their disagreement with the medical opinions provided by the WCB. On July 9, 2021, the WCB spoke with the co-workers who provided further details of the motor vehicle accident on March 26, 2021 and confirmed they had not sustained injuries as a result of the accident but confirmed the worker reported not feeling well after the accident and was taken to the local emergency department.

On July 22, 2021, a WCB physical medicine specialist reviewed the worker's file. The specialist outlined a summary of the mechanism of injury as reported by the worker and their co-workers and of the worker's medical treatment and agreed with the April 23, 2021 opinion of the WCB medical advisor that the worker sustained a "…minor cervical strain from a possible whiplash mechanism…" which was expected to have resolved in days to three to four weeks at most. Further, the WCB physical medicine specialist noted the medical evidence on file of "…some preexisting degenerative involvement of the cervical spine…" and no evidence of any acute injury related findings. The specialist provided an opinion that the worker's current presentation of headaches, nausea, imbalance, fatigue, photophobia, phonophobia, neck pain and stiffness, could not be medically accounted for in relation to the March 26, 2021 workplace accident and as such, medical treatment and work restrictions were not required.

The worker's representative provided a written submission to Review Office on August 5, 2021. The representative noted the worker's treating healthcare providers supported the diagnosis of concussion and for the worker to remain off work to receive further treatment. The representative stated the worker's refusal to return to work on May 10, 2021 and again on May 17, 2021 was based on those recommendations. Further, the worker's representative noted the WCB continued to investigate the claim after the June 4, 2021 decision to end entitlement to benefits and during that time, the worker should have continued to receive benefits until those investigations were concluded.

Review Office upheld the WCB's decision on August 17, 2021. Review Office accepted and agreed with the opinions of the WCB medical advisors the worker did not meet the WCB criteria for concussion as a result of the March 26, 2021 workplace accident and as such, did not accept the recommendation of the worker's treating healthcare providers for the worker to remain off work. Review Office found the worker was capable of performing the accommodated duties offered by the employer as of May 17, 2021 and no longer had a loss of earning capacity after May 16, 2021.

The worker's representative filed an appeal with the Appeal Commission on August 26, 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.

Worker’s Position

The worker appeared in the hearing represented by a worker advisor. The worker advisor made an oral submission on behalf of the worker and relied as well upon the August 5, 2021 written submission made to the Review Office. The worker provided testimony through answers to questions posed by the members of the appeal panel.

The worker’s position is that they are entitled to wage loss benefits after May 16, 2021 as the evidence does not support a finding that the worker no longer had a loss of earning capacity resulting from the compensable workplace injury beyond that date.

The worker confirmed that at the time of the workplace accident, they were still working modified duties arising out of the previous workplace accident of February 7, 2021, noting that they had returned to work after that whiplash type injury on February 24, 2021.

The worker advisor noted that as of May 16, 2021, the WCB continued to investigate the circumstances of the worker’s injury and had not made a final determination as to whether the worker sustained a concussion as a result of the compensable accident on March 26, 2021. The worker advisor submitted that the WCB failed to seek evidence until satisfied there was sufficient evidence upon which to make a decision, but rather made a decision and then sought evidence to support the decision made. In other words, the WCB’s investigation of the claim and the medical information should have preceded the decision-making process, but here the WCB made a decision that the worker was fit to return to work without having undertaken and concluded its investigation of the claim circumstances which continued into July 2021.

The worker advisor noted that the worker’s treating physiotherapist indicated an ongoing need for physiotherapy related to the diagnoses of whiplash with possible vestibular dysfunction. The vestibular therapist indicated a need for vestibular therapy before a return to work. Further, the worker’s treating physician indicated the worker was not ready to return to work.

The worker advisor argued that the worker reasonably followed the advice of their treating medical practitioners and remained off work until they were authorized to return. As a result of the WCB refusing to provide the vestibular physiotherapy beyond May 12, 2021, the worker was unable to continue with that treatment and did not have any other treatment beyond bimonthly injections to address their neck and head symptoms.

In responding to questions posed by members of the appeal panel, the worker described how the accident occurred, noting that the vehicle in which they were a rear-seat passenger, jerked quickly to the left at a road speed of approximately 50 km/h to avoid being sideswiped and then drove over a curb and sidewalk and came to a sudden stop to avoid a cement barrier.

The worker testified that they are still not recovered from the effects of this injury, noting ongoing cognitive and vestibular issues affecting their vision, balance and coordination. The worker described worsening of symptoms over time and noted that they have not returned to work. The worker explained that the job they held was discontinued since the injury occurred and the employer was only able to offer another job that required the worker to operate a vehicle full-time, which they cannot do as a result of the injury.

In sum, the worker’s position is that the evidence supports a finding that they were not recovered from the injury sustained in the workplace accident of March 26, 2021 by May 16, 2021 and that they reasonably followed the instructions of their treating medical professionals in remaining off work beyond that date. The worker’s position is that the WCB decision to terminate benefits was premature in that the WCB continued to investigate and seek out further evidence beyond May 16, 2021in order to ascertain the appropriate diagnosis arising from the workplace accident and the circumstances of that incident. Therefore, the worker should be entitled to further wage loss benefits while that investigation was ongoing and on the basis of the consistent instructions of their treating medical professionals.  

Employer’s Position

The employer was represented in the hearing by legal counsel who made an oral submission to the panel on behalf of the employer and who provided answers to questions posed by members of the appeal panel.

The employer’s position is that the worker is not entitled to wage loss benefits after May 16, 2021 as the evidence does not support a finding that there is a causal connection between the worker’s continuing symptoms beyond that date and the workplace accident.

The employer’s counsel indicated there is an issue of causation as between the proposed diagnosis of concussion and the injury sustained in the workplace accident. The employer relies upon the opinions of the WCB medical advisors that the worker sustained a whiplash injury but not a concussion. Counsel noted the clinical evidence supports a mechanical injury but not a neurological injury and pointed to the opinion of the WCB neurological advisor as confirming the worker’s neurological symptoms were not caused by the workplace accident. Further, the mechanism of injury is compatible with the diagnosis of whiplash but not with a concussion.

In sum, the employer’s position is that the evidence supports, on a balance of probabilities, that the worker sustained a mechanical whiplash injury as a result of the workplace accident, which was no longer symptomatic as of May 16, 2021 such that the worker could have returned to modified work at that time as recommended by the WCB. As a result, any loss of earning capacity sustained by the worker is not due to the compensable workplace injury and therefore the worker should not be entitled to wage loss benefits after May 16, 2021.

Analysis

The question on appeal is whether the worker is entitled to wage loss benefits after May 16, 2021. For the worker’s appeal to be granted, the panel would have to find that as a result of the injury sustained in the workplace accident of March 26, 2021, the worker continued to experience a loss of earning capacity beyond May 16, 2021. As detailed in the reasons that follow, the panel was able to make such a finding and as a result, the worker’s appeal is granted.

The panel considered the evidence as to the mechanism of injury in this case, noting that the worker was a rear-seat passenger in a vehicle that had to make an evasive maneuver to avoid being side-swiped by another vehicle, and then came to a sudden stop. The worker testified that they jerked from side to side and then rapidly forward and back into the seat, striking their head on the headrest behind them as the vehicle came to a stop. The co-workers in the front seat were not injured as a result of the accident, but the worker’s evidence is that after the vehicle came to a stop and before seeking medical attention, they experienced multiple episodes of nausea. The co-workers confirmed that they noted the worker indicated feeling unwell and that on returning to the office, the worker appeared to throw up. In the initial conversation with the WCB, the worker indicated they hit their head against the seatback behind them when the vehicle came to a stop and immediately experienced dizziness, severe headache or pain at the back of their neck and vomiting. The worker confirmed they remember the entire incident and did not experience any loss of consciousness.

The panel reviewed and considered the medical findings for the period following the accident through to when the WCB determined to terminate the worker’s entitlement to further benefits, which are summarized as follows:

• March 26, 2021 report from the hospital emergency department indicated a diagnosis of concussion and neck sprain, with a recommendation the worker follow the concussion treatment protocol and follow up with their own family physician for further management; 

• March 30, 2021 report from the worker’s family physician noted a “likely repeat concussion”, indicating the worker’s report of worsening symptoms of nausea, photophobia and headache, referring the worker to a concussion care clinic, recommending physiotherapy on hold until that referral took place and at least 2 weeks of dedicated concussion care; 

• April 8, 2021 initial assessment report from a physiotherapist who noted injury to the worker’s neck and head, with objective findings indicating reduced neck mobility and recommending 2 weeks off work; 

• April 13, 2021 report from the treating family physician who noted the worker’s report of slight improvement in symptoms but worsening with physiotherapy and again recommended against further physiotherapy and provided a medical note for a further two weeks off work; 

• April 20, 2021 report from the treating neuro-ophthalmologist at the concussion clinic who diagnosed dry eye syndrome, occipital neuralgia, concussion and post-concussion syndrome, recommended vestibular physiotherapy, medication changes and a further consult with a concussion specialist; 

• April 26, 2021 report from the treating family physician that the worker required more time off work (1 month) and was not capable of return to modified work, noting referral was made for vestibular physiotherapy and that the worker had an appointment with the concussion specialist on July 22, 2021; 

• May 10, 2021 report from the treating family physician to the WCB that they did not believe the worker to be “completely fit for a return to work given [their] ongoing symptoms” and noting their concern that any further injury could be detrimental to the worker and reiterating the worker’s need for dedicated concussion management and rest; 

• May 12, 2021 initial report from the vestibular physiotherapist provided a diagnosis of “Post concussion with element of cervicogenic dizziness” and recommended 8 weeks of vestibular therapy. They noted the worker was not capable of modified work as they were “extremely symptomatic and spending most of [their] day lying in dark room. Over the next 6 weeks we will help guide a return to activity in a paced manner. Gradual RTW will be appropriate at that time”; 

• May 13, 2021 file note indicating the worker’s treating physician contacted the WCB to express their opposition to a return-to-work plan at that time and noting that when the worker is able to return to work it should be gradual; 

• May 18, 2021 report from the treating family physician noted the worker’s report of ongoing nausea, headaches, imbalance, fatigue, photophobia, phonophobia and neck pain/stiffness, with only very slight improvement since the previous visit, recommending vestibular physiotherapy and a slow return to activity over the subsequent 6 weeks, as well as a possible gradual return to work with improvement of the concussion symptoms and physiotherapy for the neck sprain when concussion symptoms improved; and 

• June 8, 2021 report from the treating family physician noted no improvement in the worker’s symptoms and again recommended vestibular physiotherapy and further time off work for dedicated concussion management.

The panel also considered the opinions provided by the WCB medical consultants. The WCB medical advisor provided an opinion to the file on April 26, 2021, prior to receiving the April 20, 2021 report from the neuro-ophthalmologist or the April 26, 2021 report from the treating family physician. In that report, the medical advisor outlined their opinion based upon the information reviewed in the worker’s WCB claim file that a diagnosis of concussion was not appropriate as the facts did not support that the worker met the WCB’s concussion diagnosis criteria. The medical advisor further concluded that the diagnosis that could be accounted for based on the information provided in relation to the March 26, 2021 accident was:

“…a whiplash injury on a background of pre-existing degenerative cervical spine change (osteoarthritis), with possible accompanying vestibular dysfunction….[The worker] may have additional confounding variables affecting [their] reported dizziness/neurocognitive issues that are not accounted for on the basis of the March 26, 2021 workplace incident including [their] current medication regime….”

The medical advisor noted an expected recovery period for a whiplash injury of 4-8 weeks, and slightly longer where there is pre-existing cervical spine degeneration, and a variable recovery history for vestibular dysfunction, typically over the course of “several weeks to months with appropriate therapy.” They further stated that appropriate treatment would include physiotherapy for whiplash and vestibular therapy. A return to work with restrictions in place was recommended.

The WCB medical advisor initiated a discussion with the treating family physician on April 28, 2021 regarding the worker’s diagnosis and medications indicating the WCB position with respect to the concussion diagnosis and proposing changes to the worker’s medications. On May 6, 2021, the medical advisor initiated a further discussion with the WCB case manager, after reviewing the April 26, 2021 neuro-ophthalmologist’s report received on May 3, 2021 At that time, the medical advisor confirmed the need for “more detail in relation to the mechanism of injury” of February 7, 2021 and March 26, 2021. The medical advisor noted in their memo to file of June 24, 2021 recording this conversation, that “The matter to be addressed at that point in time was whether [the worker’s] brain had been subjected to forces on either February 7, 2021 or March 26, 2021 that would reasonably have been anticipated to provoke a brain injury/concussion.”

The treating family physician advised the WCB on May 10, 2021 of their opinion that:

“While some of [the worker’s] symptoms may be related to chronic issues it seems that [the treating neuro-ophthalmologist] agrees with the diagnosis of concussion and postconcussion syndrome per his report. While awaiting assessment from [the concussion specialist] regarding [Transcranial Magnetic Stimulation] I think [the worker] would benefit from further rest and dedicated management for the concussion.”

The panel noted that the WCB’s primary basis for termination of the worker’s entitlement to wage loss benefits as of May 16, 2021 was the April 26, 2021 opinion of the WCB medical advisor, as set out in the WCB’s June 4, 2021 decision letter. The WCB claim file also indicates that on May 13, 2021, the WCB advised the treating family physician that the WCB was “in the process of reviewing the additional information and would update the worker once done.”

The WCB medical advisor provided a further opinion on May 21, 2021 indicating a continuing disagreement with the treating neuro-ophthalmologist as to the diagnosis of concussion and noting they would request further input from a consulting neuro-ophthalmologist and a physical medicine consultant with respect to the concussion diagnosis. The panel noted that the file documents that the consulting neuro-ophthalmologist provided their opinion to file on May 26, 2021 and the physical medicine consultant provided their opinion on July 22, 2021.

The panel noted that while the medical review was ongoing, the WCB case manager continued to engage the employer in return-to-work discussions based upon the April 26, 2021 medical advisor opinion that the worker could return to work with restrictions. The employer confirmed to the WCB on May 7, 2021 that it could accommodate the worker’s restrictions with a start date of May 10, 2021 and again confirmed on May 14, 2021 that it could accommodate the worker’s restrictions with a start date of May 17, 2021. It is clear that the WCB was of the view that the worker could return to accommodated work as of May 17, 2021, and when the worker did not do so, terminated the worker’s entitlement to wage loss benefits as of May 16, 2021. This was first communicated to the worker by phone message on May 13, 2021 although the formal decision and reasons were not provided until June 4, 2021.

The panel noted that the WCB made this determination at a time when the medical reporting from the worker’s treating practitioners did not support a return to work, not even with restrictions in place. As of May 16, 2021, the only evidence indicating that the worker was sufficiently recovered from their compensable workplace injury to return to work is the April 26, 2021 opinion of the WCB medical advisor, which was still under further review. As noted above, at that time, the WCB continued to investigate not only the circumstances of the accident and the worker’s previous workplace injury of February 2021, but also was engaged in a continuing process of medical consultation which was ongoing into July 2021.

The treating neuro-ophthalmologist, the treating family physician, the treating physiotherapist and treating vestibular therapist each diagnosed concussion and/or post-concussion symptoms based on the worker’s reporting and their clinical findings. Each supported the worker remaining off work and following concussion protocols while awaiting further assessment and treatment. Although the WCB medical advisor agreed on April 26, 2021 that vestibular therapy would be appropriate treatment, the worker was not assessed by a vestibular physiotherapist until May 12, 2021 and the WCB did not subsequently approve the request for vestibular therapy.

The evidence of the treating medical practitioners to mid-May 2021 does not support the WCB’s conclusion that the worker was or ought to have been recovered sufficiently by May 16, 2021 to return to work the next day, not even to modified work with restrictions in place. The WCB medical advisor confirmed to the case manager on May 6, 2021 that further information was required as to the mechanism of injury in both the February and March accidents. The WCB medical advisor’s opinion of May 21, 2021 clearly noted that more information was both required and being sought in order to answer the questions posed in the healthcare service request. Although this information was not available before May 16, 2021, the WCB nonetheless proceeded with its decision that the worker ought to be able to return to accommodated work.

The panel accepts that the sort of rapid collision avoidance and deceleration event described by the worker could account for a whiplash or concussion-type of injury. Although the worker’s compensable diagnosis was not yet confirmed by the WCB as of May 16, 2021, on the basis of the working diagnosis provided and agreed upon by the worker’s various treating practitioners, the panel is satisfied that the worker reasonably followed the advice of their medical providers and did not participate in the WCB’s return-to-work plan at that time.

Based upon the information provided to the WCB by the worker’s treating practitioners and the fact that the WCB had not concluded its own investigation of the facts and circumstances of the accident or the medical findings, the panel finds the evidence does not support a return to work with restrictions as of May 16, 2021. We are satisfied that the evidence supports a finding that the worker’s continuing loss of earning capacity as of May 16, 2021 was related to the compensable workplace injury and therefore the worker is entitled to wage loss benefits after that date.

We therefore determine based upon the evidence before us and on the standard of a balance of probabilities, that the worker is entitled to wage loss benefits after May 16, 2021. The worker’s appeal is granted.

Panel Members

K. Dyck, Presiding Officer
R. Campbell, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 7th day of June, 2022