The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:

1. They are not entitled to benefits for a diagnosis of a concussion; and 

2. They are not entitled to wage loss and medical aid benefits after September 9, 2021.

A videoconference hearing was held on May 4, 2022 to consider the worker's appeal.

Issue

1. Whether or not the worker is entitled to benefits for a diagnosis of concussion; and 

2. Whether or not the worker is entitled to wage loss and medical aid benefits after September 9, 2021.

Decision

1. The worker is entitled to benefits for a diagnosis of a concussion; and 

2. The worker is entitled to wage loss and medical aid benefits after September 9, 2021.

Background

The WCB received an Employer's Accident Report on July 12, 2021, reporting the worker injured their left arm, back of their head, left neck and shoulder in an incident at work on July 5, 2021 when they stepped out of the back of a vehicle and fell backwards onto the ground, striking the occipital region of their head. The employer noted the worker did not lose consciousness but did lose their vision and their arms went numb for a few moments. The worker was then transported by ambulance to a local emergency department. The Worker Incident Report provided to the WCB on July 15, 2021 noted a similar mechanism of injury.

The Emergency Visit Summary from the worker's attendance at a local emergency room recorded the worker’s report of tumbling backwards onto the back of their head with no loss of consciousness or amnesia but some tingling in their fingers. The worker reported the tingling had resolved, but a mild headache and some stiffness on the left side of their neck remained. The treating emergency room physician recorded that the worker had been examined by a co-worker who noted a normal exam, including the worker's cervical spine. On examination, the physician reported the worker looked comfortable and was ambulatory. The physician noted the worker had a normal neurological examination and was moving their neck in all directions. Some left paraspinal pain was noted along with a "…fair goose egg centrally occipital". Normal strength and sensation was reported in the worker's upper and lower limbs and no nystagmus was indicated. A CT scan was discussed; however, the worker did not meet the criteria to require a scan. The physician recommended the worker remain off work for two days and follow-up with a sports medicine clinic for whiplash.

On July 7, 2021, the worker attended for an initial chiropractic assessment reporting stiffness along their lower left neck area and upper back, with a strong, constant ache to their upper extremities and a constant headache. The worker reported no nausea or vomiting but noted lights were bothering them although noise did not. The chiropractor recorded decreased cervical range of motion, along with point tenderness in various areas of the worker's spine and sacroiliac joint area and provided a diagnosis of cervical segmental dysfunction with possible concussion. The chiropractor noted the worker remained off work due to inability to perform some of their job duties including driving at high speeds, shoulder checking and transporting residents, due to acute neck pain.

The WCB accepted the worker's claim on July 16, 2021 and the payment of various benefits commenced.

At a follow-up appointment on July 28, 2021, the treating chiropractor noted the worker's report of a significant decrease in neck pain and that they could focus, concentrate, and read with more clarity and understanding. The chiropractor recommended the worker return to their regular duties on July 29, 2021.

On August 5, 2021, the worker contacted the WCB to provide an update, advising that they returned to work on July 29, 2021 but after working two shifts, woke up on July 31, 2021 with a headache, nausea and dizziness and were unable to go to work. Their next scheduled shift was August 6, 2021 and the worker felt they could return for that shift. They reported current symptoms of headaches from the left back of their head into their left eye, off and on throughout the day every day along with a stiff back between their shoulder blades.

When the worker attended for an initial appointment with their treating family physician on August 12, 2021, they reported ongoing headaches and impaired concentration, and the physician queried diagnoses of concussion and soft tissue injuries. The physician further recommended consultation with the concussion clinic and placed the worker off work for a further two weeks. At a further follow-up appointment on August 13, 2021, the treating chiropractor agreed with the family physician that the worker should remain off work for two weeks and attend for a consultation with the concussion clinic.

The worker saw a physiotherapist at the concussion clinic on August 18, 2021 and reported headaches, nausea, fatigue, difficulty reading and stiffness. After testing, the physiotherapist diagnosed the worker with whiplash associated disorder, grade 1 with vestibulo-ocular dysfunction and recommended the worker start a graduated return to work program after the following week.

A WCB medical advisor reviewed the worker's file on August 24, 2021. The medical advisor concluded the initial diagnosis related to the workplace accident was a head contusion and neck strain with expected improvement in pain and function within two to six weeks without residual or recurrent physical impairment. The medical advisor noted the information from the worker's treating healthcare providers reported the worker had "…functional neck mobility with no neurological deficits- the diagnosis is nonspecific neck pain" and stated that the recommended treatment for nonspecific neck pain was activity normalization. They opined that the medical reporting closest to the workplace accident indicated no loss of consciousness or amnesia and a normal neurological examination and did not support an acute disruption in brain function. Further, the medical advisor noted that the treating chiropractor reported on July 28, 2021 that the worker reported no headaches or nausea, could focus and concentrate and read with clarity and understanding and that they noted minimal pain on neck movement. The medical advisor concluded that an increase in the worker's symptoms and total disability was indicated to not be consistent with the natural history of a concussion, if the worker had sustained one as a result of the workplace accident. The WCB medical advisor further opined the worker's prognosis was excellent and that the worker “would be considered as having functionally recovered from the workplace injury related diagnosis.” On September 2, 2021, the WCB advised the worker it had been determined they had recovered from their compensable injury, and they were not entitled to benefits after September 8, 2021.

On September 13, 2021, the concussion clinic physician provided a Doctor's First Report to the WCB, setting out a diagnosis of concussion and whiplash, recommending the worker attend for physiotherapy for "persistent cervicogenic headaches" and setting out a gradual return to work plan for the worker to return to work.

A WCB medical advisor reviewed the new medical information on September 28, 2021 and opined that the information did not change the previous opinion that the worker did not sustain a concussion as a result of that accident. On September 29, 2021, the WCB advised the worker there would be no change to the earlier decision they were not entitled to further benefits after September 8, 2021.

On October 7, 2021, the worker's representative requested reconsideration of the WCB's decision to Review Office noting the worker's treating healthcare providers agree the worker sustained a concussion as a result of the July 5, 2021 workplace accident and continued to experience symptoms, requiring further benefits. On December 2, 2021, the employer provided a submission in support of the WCB's decision, a copy of which was shared with the worker and their representative, who provided a further response on December 6, 2021.

On December 7, 2021, Review Office upheld the WCB's decision the worker was not entitled to benefits for the diagnosis of concussion and further, found the worker was entitled to further benefits but only until September 9, 2021 to provide for the adequate notice period as required under the WCB policies. Review Office accepted the opinion of the WCB medical advisor that the worker did not sustain a concussion from the workplace accident. With respect to entitlement to benefits after September 8, 2021, Review Office agreed that a return to work would be appropriate based on the accepted diagnosis of a head contusion and soft tissue injuries. Review Office also found the worker did not have a further loss of earning capacity or need for further treatment. As the WCB policy required a 7-day notice period and during the period provided, a statutory holiday occurred, the worker's entitlement to benefits would be extended by one day to September 9, 2021.

The worker's representative filed an appeal with the Appeal Commission on December 7, 2021. A videoconference hearing was arranged for May 4, 2022.

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 provisions of the Act in effect as of the date of the worker’s accident are 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 with a union representative. The union representative made an oral submission to the appeal panel on behalf of the worker and provided a written submission for consideration by the panel in advance of the hearing. The worker provided testimony through answers to questions posed to them by the union representative and in response to questions from the appeal panel.

The worker’s position as outlined by their representative is that the worker is entitled to further benefits because the evidence supports a finding that the worker did suffer a concussion when they fell at work, the effects of which persisted and progressed in the weeks following as the worker attempted a return to work.

The worker’s representative argued that when the worker fell from the vehicle onto the ground, they sustained injuries to their head, neck, left shoulder and arm. They noted that the Employer Incident Report records that the worker did not lose consciousness but did experience a loss of vision and numbness in their arms for a few minutes after the fall and that the treating physician diagnosed potential concussion and whiplash. The attending paramedics indicated photophobia and headache, and the worker’s report that immediately after the fall, they were “seeing stars” and experienced numbness and tingling in their arms. The paramedics recorded the worker’s hematoma to the back of their skull and left forearm bruising and transported the worker to hospital where the assessing emergency room physician recorded discussion with the worker as to criteria for a CT scan and that they did some “concussion teaching”, instructing the worker to return if they experienced worsening head or new symptoms.

When the worker was assessed by a chiropractor two days later, a diagnosis of “cervical segmental dysfunction with possible concussion” was offered. The worker continued to seek chiropractic care and the chiropractor reported the worker’s continuing symptoms of neck pain, occasional headache and nausea and difficulty in concentrating. The worker sought treatment from their family physician on August 12, 2021 reporting ongoing headaches and impaired concentration, and the physician queried a diagnosis of concussion and soft tissue injuries.

The worker’s representative noted that despite the diagnoses offered by the emergency room physician, the treating chiropractor and the worker’s family physician, the WCB medical advisor determined on August 24, 2021 that the reporting did not support a finding that the worker sustained any “acute disruption of brain function (i.e. concussion) in relation to the workplace injury” and stated that even if the worker had sustained a concussion, the reported worsening of symptoms was not consistent with the natural history of that diagnosis. The worker’s representative noted the WCB medical advisor relied primarily on the report of the treating emergency room physician which noted no loss of consciousness or amnesia and a normal neurological examination. When the worker was assessed on September 13, 2021 by a concussion clinic physician, the physician confirmed the worker’s symptoms over the previous weeks and offered a diagnosis of concussion and whiplash, recommending the worker continue with physiotherapy “with concussion specific training” and start a gradual return to work on reduced hours and light duties, with follow-up in one month. Despite this diagnosis, the WCB medical advisor on September 28, 2021 confirmed their prior opinion that the initial medical information was most reliable and did not indicate a concussion, and further, that the worker would have improved in a few days to a couple of weeks if concussion were present. The WCB and the Review Office relied on these opinions in determining that the worker was not entitled to benefits in relation to a concussion diagnosis and not entitled wage loss and medical benefits beyond September 9, 2021.

The worker’s representative argued that the panel should place little weight on the opinions of the WCB medical advisor and greater weight on the information provided by the treating medical providers, who confirmed that after the fall, the worker experienced both a temporary loss of vision and paresthesia in both arms, which are examples of an acute neurological deficit. The worker’s representative asked the panel to consider the December 22, 2021 opinion of the concussion clinic physician that “…for concussion diagnosis, a direct blow to the head is not necessary for diagnosis however [the worker] did experience one. Also, symptoms may not occur until 24 or even 48 hour[s] after the injury, however in [the worker’s] case, [they] had some immediate symptoms. Loss of consciousness and amnesia are not required for a medical diagnosis of concussion.” Further, the physician set out that a small percentage of those who experience concussion have persistent symptoms and this applied to the worker, whose diagnosis was updated to post-concussion syndrome as a result. The physician further noted that a gradual return to work with a slow increase in hours is often necessary for patients with concussion symptoms.

In response to panel questioning regarding the applicability of the WCB’s Concussion Position Statement, the worker’s representative submitted it is not binding upon the panel and that as noted in the Statement, there is no single set of diagnostic criteria for concussion. If those criteria are applied, however, the worker’s representative submitted that the evidence of the worker’s immediate loss of vision, seeing stars and numbness and tingling in their arms would meet the requirement of an acute neurologic deficit.

The worker’s representative submitted that the worker is entitled to wage loss and medical aid benefits beyond September 9, 2021 as they were not recovered from the effects of the compensable workplace injury at that time. The compensable injury was more serious than just a bruise to the worker’s head and neck strain and the evidence supports a finding that the worker’s attempts to return to work were premature and may have exacerbated their symptoms, prolonging the worker’s recovery.

The worker provided evidence to the panel as to how the accident occurred on July 5, 2021, noting that they fell onto their mid-scapula, back and mid head but more to the left. The worker explained they immediately felt pain in their back and head, spreading forward. For some 30 seconds to a minute, the worker was unable to see and had no sensation in their limbs. The worker described the blackness slowly lifting as their vision returned. They noted they were crying due to the pain at the back left side of their head and down into their back and side. The worker recalled a colleague asking if they were ok but had no sense of how long they were on the ground before that happened. The worker was assessed by their colleague in terms of vital signs, neck and spine check and for bleeding. By that time, the worker’s grip strength and vision were returned, but they noted their paraspinal muscles tensing up. The worker knew that a visit to hospital was needed due to the loss of vision and the numbness and tingling experienced.

The worker recalled being asked many of the same questions at hospital as had already been addressed by their colleague. The worker indicated the treating emergency room physician strongly suspected a concussion based on the mechanism of injury and the height from which the worker fell. The physician advised the worker would likely have a headache for a few days, but that if it continued longer, they should return for follow up. The worker was advised not to drive or work and follow up after 48 hours as needed.

The worker confirmed that they were transported back to their spouse’s employment by the supervisor and their spouse drove them home. The worker recalled feeling headache and nausea and pressure behind their eyes on the drive home. On arriving home, the worker went to sleep in a dark room.

The worker confirmed in their testimony that prior to the first attempted return to work, they spent most of the time in a darkened room and were unable to read or watch tv as their vision was blurred, especially on the left, it was hard to concentrate and they experienced headache and nausea, especially with multiple stimuli. The worker also noted forgetting words during that time. In response to questions from members of the appeal panel, the worker indicated that in the first three weeks following their injury, they paid careful attention to what triggered their symptoms and avoided those triggers. If it was sunny, the worker remained indoors. They avoided activities and social events. They slept a lot. During this period the worker sought chiropractic treatment three times each week.

The worker referred to their prior experience of head injury with whiplash and noted that chiropractic treatment was helpful then and therefore they sought out the same sort of treatment in this case. By July 29, 2021 the treating chiropractor indicated the worker could return to work and the employer’s occupational health nurse agreed. The worker indicated that they still had symptoms at that time but felt better, noting that this was when they were only at home. With full duties on 12-hour shifts and 45 minutes driving to and from work, the worker indicated the return to work on July 29, 2021 did not go well. They experienced horrible headaches at work, extreme exhaustion and had difficulty focusing by the end of their shift. Nonetheless the worker returned the next day and indicated that they felt even worse. The worker explained to the panel that they continued with the return to work as they were new on the job and didn’t want to take time off or leave a bad impression on the employer or colleagues. The worker also indicated that they continued due to their own stubbornness. They stated that when they told the WCB on August 5, 2021 that they were 85-90% recovered, they based this estimate on how they felt at home. On August 6, 2021 the worker went to work again, and while there felt at 50-55% recovered.

The worker sought physiotherapy on August 18, 2021 and the physiotherapist provided therapy to address the worker’s head injury specifically. The worker noted struggling with what seemed like “silly exercises” but did the recommended exercises, challenging themselves to push to the point of symptom threshold.

The worker confirmed that since the injury they continued to experience nausea and have trouble reading. When the employer did not allow the worker to return to work without medical clearance, despite the WCB finding that the worker was recovered, the worker sought a referral to a concussion clinic where they were diagnosed on September 13, 2021 with concussion and whiplash. Initially the physician recommended an attempt at gradual return to work with light duties, but the employer did not have light duties available at that time. The physician then proposed regular duties on reduced hours that would increase as the worker could tolerate. The worker returned to work under those restrictions, doing only work they felt able to do as their symptoms allowed. The worker confirmed that by January 2022 they are fully returned to their regular hours and duties and have not followed up with the physiotherapist or head injury physician since then, although they continue to attend monthly chiropractic and massage appointments.

In sum, the worker’s position is that as a result of the compensable workplace accident, they sustained a concussion and further that as a result of the injuries sustained on July 5, 2021, regardless of the accepted diagnosis, the worker was not sufficiently recovered to be able to return to their full pre-accident duties and hours by September 9, 2021 but required further wage loss benefits due to their continuing loss of earning capacity and ongoing medical treatment to address their continuing symptoms. Therefore, the worker’s appeal should be granted.

Employer’s Position

The employer was represented in the hearing by its workers compensation coordinator, who provided an oral submission to the appeal panel on behalf of the employer and provided further information in response to questions posed by members of the appeal panel.

The employer’s position is that the Review Office decisions should be upheld and the worker’s appeal denied. With respect to the worker’s entitlement to benefits for a diagnosis of concussion, the employer’s position is that the medical findings do not meet the criteria for a diagnosis of concussion and that the compensable diagnosis is rather, as found by the WCB, a sprain/strain to the neck and contusion to the head. With respect to the worker’s entitlement to wage loss and medical aid benefits after September 9, 2021, the employer believes that the evidence supports the worker had made a functional recovery by August 24, 2021 and was not totally disabled beyond September 9, 2021. As such, the worker cannot establish that they experienced a loss of earning capacity as a result of the compensable workplace accident or required medical aid arising out of that accident beyond September 9, 2021 and the appeal should be denied on both questions.

In their submission, the employer’s representative referenced and relied upon the criteria to establish a diagnosis of concussion as set out in the WCB’s Concussion Position Statement, noting the evidence does not support a finding that the worker suffered a loss of consciousness, alteration of mental state, loss of memory or acute neurologic deficit immediately following the workplace accident. As such, the diagnostic criteria for concussion, as required by the WCB, have not been met and therefore the worker cannot be found to have sustained a concussion as a result of the workplace accident. Further, if there is no concussion, the diagnosis of post-concussion syndrome also cannot be supported. In this regard, the employer’s representative urged the panel to give significant weight to the August 24, 2021 opinion of the WCB medical advisor who relied upon the earliest medical reporting in determining there was no evidence to support a diagnosis of concussion.

On questioning by members of the appeal panel, the employer’s representative acknowledged that the Concussion Position Statement is not WCB Policy and therefore does not bind the panel but nonetheless urged the panel to consider those criteria in assessing the worker’s appeal of the question of entitlement to benefits for a diagnosis of concussion.

With respect to the question of entitlement to wage loss benefits and medical aid after September 9, 2021, the employer’s representative noted that the worker’s treating medical practitioners related the worker’s ongoing symptoms to post-concussion syndrome. The WCB medical advisor took another view and stated that the worker was functionally recovered from the workplace injury by August 24, 2021. The employer’s representative noted the July 28, 2021 report from the treating chiropractor indicated a significant decrease in the worker’s neck pain, no headaches or nausea, as well as the worker’s ability to focus and concentrate and drive.

In sum, the employer’s position is that the evidence establishes that the worker was recovered from the compensable diagnoses of neck strain and head contusion by or before September 9, 2021 and does not establish that the worker sustained a concussion as a result of the compensable workplace accident. As such, the worker is not entitled to benefits on the basis of the diagnosis of concussion, nor to further wage loss and medical aid beyond September 9, 2021, and the worker’s appeal should be denied.

Analysis

There are two issues for the panel to determine in this appeal. First, the panel must determine whether the worker is entitled to benefits for a diagnosis of concussion, and second, the panel must determine whether the worker is entitled to wage loss and medical aid benefits after September 9, 2021. For the worker’s appeal to succeed the panel would have to find that as a result of the compensable workplace accident of July 5, 2021, the worker sustained a concussion, and further that due to the injuries sustained in that accident, the worker continued to experience a loss of earning capacity and to require medical aid in relation to that injury. As outlined in the reasons that follow, the panel was able to make such findings and therefore the worker’s appeal is granted.

In considering the question as to whether a diagnosis of concussion can be related to the workplace injury, the panel considered the evidence as to the circumstances of the accident and the worker’s injury. There is no dispute that the worker hurt themself as a result of falling backwards out of a vehicle onto the ground a few feet beneath them, with their head, left shoulder and neck, and arm sustaining the primary impact on landing. The worker described to the employer feeling excruciating pain to the occipital region that moved into the region behind the worker’s left eye, as well as pain in the left neck/shoulder region and left forearm. By the worker’s own report to the WCB, they experienced a brief loss of eyesight and loss of feeling in both arms, but no loss of consciousness.

The evidence before the panel confirms that immediately following the injury the worker was first assessed by their colleague, who noted the worker lying on the ground in visible distress. A large hematoma soon formed on the back of the worker’s head where they hit the concrete surface. Ambulance staff noted the worker’s report of “seeing stars” immediately and that their arms were numb and tingling but that the worker’s vision and sensation in their arms soon improved. The worker reported photophobia, denied cervical spine tenderness, numbness or tingling and reported neck stiffness to the rear. The Patient Care Report indicates central nervous systems symptoms of photophobia and headache. The worker was noted as being able to speak in full sentences.

The WCB medical advisor gave significant weight to the notes contained in the report of the attending emergency room physician who assessed the worker approximately 1.5 hours after the injury occurred and noted the worker appeared to be comfortable and was ambulatory. The emergency room record indicated the worker was not knocked out and had no amnesia but briefly had some tingling in their fingers. The physician recorded that the neurological examination revealed intact cranial nerves, neck movement in all directions, some left paraspinal pain but no midline tenderness to neck and “a fair goose egg centrally occipital.” The physician recorded no nystagmus and normal extraocular movements. The worker was advised of “concussion teaching” and instructed to return to the emergency department if they experienced worsening headache or new symptoms. No specific diagnosis is provided in the record.

The next available medical reporting is found in the Chiropractor’s First Report based on their July 7, 2021 assessment of the worker. They noted the worker’s report that they did not recall passing out but temporarily lost their vision. The chiropractor recorded that the worker did not have nausea or vomiting but did have strong aching, constant non-radicular pain to the upper extremities and a dull constant headache with sensitivity to light. On assessment the chiropractor noted reduced cervical range of motion and recorded a number of movements that resulted in aching. The chiropractor offered a diagnosis of cervical segmental dysfunction with possible concussion and recommended rest and continuing chiropractic treatment.

By July 28, 2021 the treating chiropractor reported a significant decrease in neck pain and that the worker’s pain was no longer sharp or strong. The worker at that time reported they could focus and concentrate and read with more clarity and understanding. An attempt at return to work on regular duties the next day was planned.

On August 14, 2021, after the attempted return to work, the chiropractor reported a significant decrease in the worker’s left neck and upper back pain but also sometimes daily headaches, nausea when a passenger and difficulty concentrating. The chiropractor also noted that the worker’s family physician had the worker off work for 2 weeks and made a referral to a concussion clinic. The treating family physician reported to the WCB on August 17, 2021 that they assessed the worker on August 12, 2021. The physician queried a diagnosis of concussion and soft tissue injuries based on the worker’s report of ongoing headaches and impaired concentration.

On August 18, 2021 the worker was assessed by a physiotherapist specializing in vestibular therapy. They noted ongoing mobility impairment in terms of the worker’s cervical spine and “headache with VOR [vestibulo-ocular reflex], smooth pursuit, convergence.” The physiotherapist provided a diagnosis of whiplash associated disorder with vestibulo-ocular dysfunction.

The worker was assessed by a physician in a concussion clinic on September 13, 2021 who provided a diagnosis of concussion and whiplash. The physician recorded the worker’s report of headache onset after a few hours of work, photosensitivity and dizziness associated with headache, difficulty focusing, eyes getting tired, more fatigue, increased sleep and more depressed. The worker also reported motion sickness when a passenger and pressure behind the eye prior to headache onset. On assessment, the physician noted the absence of red flags and normal neurological findings, with a Rivermead score of 31 and double vision when looking to the right. The physician recommended continuing physiotherapy with concussion specific training and a gradual return to work on light duties, beginning with half days and increasing as tolerated over the course of a month. In the further report to the worker’s representative dated December 22, 2021, the concussion clinic physician explained that although the worker did not have a loss of consciousness at the time of injury, they did have immediate blurred vision and nausea. Further, the physician explained that “The diagnosis of concussion was based on the mechanism of injury and [the worker’s] subjective symptoms” as noted above and their Rivermead symptom score. The physician went on to explain that concussion symptoms may not occur until 24-48 hours after injury and that loss of consciousness and amnesia are not required for that diagnosis. The physician further noted that the worker’s symptoms persisted and that the worker:

“…has prolonged symptoms of concussion (formally post-concussion syndrome). This is diagnosed when symptoms of concussion last longer than 4 weeks/1 month. Most patients will recover fully from concussion within 4 weeks but a small percentage have symptoms that persist longer. [The worker] falls into the latter group. [They] had tried an initial return to work but this caused increased symptoms and was not tolerated. As is common in patient’s (sic) with concussion symptoms, a gradual return to work slowly increasing hours is often necessary.”

The WCB medical advisor took a different view, as outlined their opinion of August 24, 2021, that the medical reporting most temporal to the injury did not support a diagnosis of concussion based upon the clinical findings, that the worker, at that time, had symptoms of non-specific neck pain, and that the compensable diagnosis of head contusion and neck strain was or ought to have been resolved in 2-6 weeks. On later reviewing the report from the concussion clinic physician of September 13, 2021, the WCB medical advisor stated on September 28, 2021 that there was no change in their prior opinion and confirmed that “…the initial medical information in closest temporal proximity to the DOA [date of accident] does not indicate a concussion. If a concussion were present, the natural history is one of improvement in a few days to a couple of weeks. Prolonged disability would not be anticipated at this point. Normalization of activities is recommended at present.”

The panel considered the opinion of the WCB medical advisor in light of the opinion of the concussion clinic physician, as well as in the context of all the medical information available. The panel noted that the medical advisor did not have opportunity to review the statement provided by the colleague who first assessed the worker after the injury, nor the Patient Care Report provided by the paramedic service. These documents, which describe the worker’s presentation immediately following the injury and prior to attending at hospital offer more detail as to the worker’s experience of “seeing stars” and numbness and tingling in their arms.

On the basis of the medical reporting most proximate to the time of injury and the testimony of the worker, the panel is satisfied that the worker sustained a head injury that was more severe than just a contusion. The initial reporting by the worker, who is trained to observe and take note of symptoms, confirms that in addition to the loss of vision and tingling in their upper limbs, they also experienced immediate headache and nausea. We also noted the concussion clinic physician’s statement that onset of concussion symptoms may follow the injury by 24-48 hours and further, note the findings recorded by the treating chiropractor some 48 hours post-injury suggested to the chiropractor that the worker had sustained a concussion.

While the employer’s advocate argued that the criteria set out in the WCB’s Concussion Position Statement have not been met here, the panel noted that there is no indication in the claim file that the WCB medical advisor or adjudicator considered or applied that statement in assessing the worker’s claim, and as such, that statement is not in evidence here. Further, and in any case, the panel is not bound by the WCB Concussion Position Statement as it is not part of any WCB policy.

The panel is satisfied that the evidence of the treating physicians, physiotherapist and chiropractor supports the diagnosis of concussion resulting from the workplace injury of July 5, 2021. In making this finding, we accept and rely upon the opinions of the treating medical professionals in this regard, and in particular upon the opinion of the concussion clinic physician and give less weight to the opinion offered by the WCB medical advisor who did not have the benefit of considering all the available medical information or hearing the worker’s testimony. On this basis, and on the standard of a balance of probabilities, we find that the worker is entitled to benefits for a diagnosis of concussion.

The WCB determined that the worker was not entitled to wage loss and medical aid benefits after September 9, 2021, relying upon the opinion of the medical advisor that the worker had recovered from their neck strain injury and head contusion by that point in time. The evidence however does not bear that out, particularly in light of the panel’s finding that the worker sustained a concussion arising from the workplace accident. While there is evidence of improvement of the worker’s symptoms in the weeks following the accident such that an attempt to return to worker was made beginning on July 29, 2021, there is also evidence that this was not successful. When the vestibular physiotherapist assessed the worker on August 18, 2021, they were of the view that the worker was not at that time capable of alternate or modified work but first required treatment. At that time, the worker had attempted a return to regular duties and hours at work, and the medical reporting supports the worker’s position that this resulted in an exacerbation of symptoms related to the injury. The physiotherapist recommended a cautious approach with a graduated return to work. The concussion clinic physician, on September 13, 2021, stated that the worker could begin a graduated return to work at that time, in a light duties position, slowly increasing their hours over the course of one month. The panel also noted that the employer’s occupational health services indicated that as of September 13, 2021 the worker was capable only of light duties with a graduated return beginning with half days.

The evidence before the panel does not support the WCB’s decision that the worker was capable of a return to their full regular duties by September 9, 2021, nor that the worker did not require further medical aid related to the workplace injury beyond that date. The panel is therefore satisfied, on the standard of a balance of probabilities, that the worker is entitled to wage loss and medical aid benefits after September 9, 2021.

The worker’s appeal is therefore granted on both questions.

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 14th day of June, 2022