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 December 13, 2020. A hearing was held on June 7, 2022 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after December 13, 2020.

Decision

The worker is entitled to benefits after December 13, 2020.

Background

The worker provided the WCB with a Worker Injury Report on December 25, 2020, reporting they had contracted COVID-19 while at work and on December 29, 2020, and provided the WCB with a copy of their positive test result. During a discussion with the WCB on December 29, 2020, the worker advised they were exposed to COVID-19 positive individuals on November 7, 2020 and tested positive themselves on November 11, 2020, reporting headaches, body aches, pains in their chest, tiredness which progressed to massive knots in their muscles and blurry vision with halos from November 11, 2020 to November 23, 2020. After that, to December 11, 2020, the worker reported exhaustion, coughing and a heavy chest with pressure on their lungs, persistent cough and heart palpitations. The worker noted they were told to self-isolate until December 6, 2020 but if they still had symptoms, they could not return to work. The worker confirmed they continued to have symptoms until December 12, 2020, when they returned to work. The worker further advised they felt good today and "…no longer has symptoms" and "Sometimes still gets heart palpitations daily at certain points…" The WCB accepted the worker's claim.

On January 5, 2021, the worker contacted the WCB to report they attended at a local emergency department on December 30, 2020, due to increased symptoms. The worker advised their "…heartbeat was so off and my chest was so tight they thought it was a heart attack. Turns out it wasn't but they said this is most likely lasting symptoms of covid and to continue testing with my regular doctor." The worker noted they had spoken with their treating family physician on January 5, 2021 who was sending them for testing and recommended they remain off work. The worker provided the WCB with a copy of the physician's note recommending the worker be off work until January 22, 2021. The WCB obtained a copy of the chart note from the emergency department for the worker's attendance on December 30, 2020. The triage nurse indicated on the chart note the worker left without being seen after reporting tightness in their chest but no chest pain. The nurse advised the worker, their EKG and bloodwork taken at the time did not indicate an acute condition but if the worker waited to be seen by a physician, a chest x-ray and further bloodwork may be ordered. The worker advised the nurse they had an appointment with their family physician on January 12, 2021 and opted to wait for that appointment. The triage nurse noted the worker "…ambulated out of department with steady gait."

The worker attended for a follow-up appointment with their treating family physician on January 12, 2021, reporting chest pain and shortness of breath. The physician referred the worker for an echocardiogram. An earlier referral was made by the treating physician for a chest x-ray, which was conducted on January 6, 2021 and was reported to be normal. The echocardiogram was performed on January 18, 2021.

On January 18, 2021, the WCB contacted the worker for an update. The worker confirmed they had attended for bloodwork and an x-ray on January 12, 2021 and for an echocardiogram that day as recommended by their treating family physician. The worker contacted the WCB again on January 19, 2021 to provide further details about their symptoms. The worker noted their symptoms of tightness in their chest, dizziness and brain fog were the worst of the symptoms they had experienced and those symptoms continued after they were cleared to return to work. The worker noted their belief that those symptoms would get better and would go away on their own and only stopped working due to an increase in those symptoms.

At the request of the WCB, the worker's file was reviewed by a WCB medical advisor on February 5, 2021. The advisor opined the worker's diagnosis was a COVID-19 infection, confirmed by a positive test taken on December 3, 2020, for which the natural history of recovery ranged from a few days' rest at home to a prolonged hospitalization. The WCB medical advisor noted the worker advised the WCB on December 23, 2020, they no longer had symptoms by December 12, 2020 and was feeling good on December 23, 2020 and added they sometimes still got heart palpitations daily at certain points in the day. The medical advisor then detailed the testing the worker underwent since attending at a local emergency department on December 30, 2020 and opined the medical information on file did not support a specific diagnosis related to the worker's current difficulties. Further, the WCB medical advisor opined, based on the findings of the testing on the worker's file, total disability was not supported, despite the worker's treating family physician's recommendation. On the same date, the worker's representative advised the WCB the worker had recently been seen by a cardiologist and a respirologist.

The worker had an initial virtual assessment with their treating cardiologist on January 27, 2021 with testing recommended. A follow-up report, dated February 6, 2021, was received by the WCB on April 6, 2021 indicating the worker underwent exercise stress testing on February 4, 2021. The treating cardiologist reported the worker "…achieved an excellent 12.7 METS to a peak heart rate that was 92% of his maximum predicted heart rate and well above the target heart rate." The cardiologist went on to opine they did not believe the worker's "…recent atypical chest discomfort is due to flow-limiting coronary artery disease and his COVID infection has not significantly affected his exercise tolerance." The worker was seen by a respirologist on February 5, 2021. The treating respirologist recorded the worker's reporting of persistent symptoms of chest tightness during the day since their COVID-19 infection. A pulmonary function test was recommended.

The new medical information from the worker's treating cardiologist and respirologist and the worker's file were reviewed again by the WCB medical advisor on March 25, 2021 with the advisor opining the information "…does not presently substantiate an organic/physiologic basis…" to account for the worker's current difficulties. On March 26, 2021, the worker was advised by the WCB they were not entitled to benefits after December 13, 2020 as a relationship between their current difficulties and their COVID-19 diagnosis could not be established.

A March 23, 2021 report from a local emergency department was received by the WCB on April 6, 2021. The report indicated the worker attended after "…3 days of crushing chest pressure midsternal. Started 3 days ago at rest, associated with shortness of breath and diaphoresis (sweating), radiated to left shoulder and jaw. Worse when lying supine, better when leaning forward or lying prone. Has also noticed hoarse voice with these episodes." A chest x-ray taken during the assessment found no evidence of pericardial effusion and an ultrasound also taken that day noted no pericardial fluid. The emergency physician provided a diagnosis of "Pericarditis versus chest pain NYD (not yet determined)" and referred the worker to a Covid clinic. Also on March 23, 2021, the worker's treating cardiologist noted the worker provided mobile heart monitor readings on March 22, 2021, which were noted to be "…normal at normal rates" and opined the worker's symptoms were "…most likely…post COVID (long-term)" and recommended the referral to the COVID-19 clinic.

On April 20, 2021, the worker's file, along with the additional medical information, was reviewed by the WCB medical advisor who, after summarizing the information, opined the information did not support the worker's current difficulties were related to their December 3, 2020 COVID-19 infection and as such, there would be no change to their February 5, 2021 and March 25, 2021 opinions. On April 28, 2021, the WCB advised the worker the new information had been reviewed; however, there would be no change to the earlier decisions they were not entitled to benefits after December 13, 2020.

The worker's representative contacted the WCB on May 17, 2021 to advise the worker had been seen at the COVID-19 clinic and asked the WCB to request a report from the clinic to review. 

On August 6, 2021, the WCB received a copy of the report for the worker's attendance at the clinic on May 4, 2021. The COVID clinic physician recorded the worker's reporting of their COVID-19 infection at the end of November 2020 to the beginning of December 2020 and the worker's symptoms of fatigue, fever and nausea. The worker then reported that after their return to work at the end of December 2020, they noticed symptoms of severe chest pain, with the feeling of pressure, sweating, palpitations and compared the symptoms to an asthma attack. The worker noted they had an incident approximately three to four weeks previously, which resulted in them experiencing shortness of breath with any type of physical exertion. The worker further noted minor headaches, with brain fog that was gradually improving. The treating physician provided a diagnosis of "long haul Covid" and recommended further testing.

On August 23, 2021, the WCB received copies of the test results for the worker, including a lung scan conducted on July 20, 2021, which indicated "Normal examination, without evidence of acute or chronic pulmonary emboli"; a chest x-ray also conducted on July 20, 2021; blood work taken on July 16, 2021; and pulmonary function testing. On September 10, 2021, the WCB medical advisor provided a further opinion to the worker's file. The advisor opined the echocardiogram test, the blood work testing and the pulmonary function testing all did not provide support to medically account for the worker's current difficulties. The advisor further opined the April 28, 2021 spirometry testing indicated the worker had a "minimal obstructive airways defect" but that defect would not medically account for the worker's current difficulties. As a result, the WCB medical advisor provided their previous opinions of February 5, 2021, March 25, 2021 and April 20, 2021 remained unchanged. A further decision letter was sent to the worker by the WCB on September 14, 2021, indicating there would be no change to the earlier decisions.

The worker's representative requested reconsideration of the WCB's decisions to Review Office on September 21, 2021. The representative submitted the worker should be entitled to further benefits as they continued to experience symptoms of their compensable injury, as supported by their treating healthcare providers. On November 3, 2021, the employer provided a submission in support of the WCB's decision.

Review Office determined on November 10, 2021, the worker was not entitled to benefits after December 13, 2020. Review Office accepted and relied on the opinions of the WCB medical advisor and agreed the medical evidence on file did not support the worker's current difficulties were related to the worker's compensable COVID-19 diagnosis.

The worker's representative filed an appeal with the Appeal Commission on November 15, 2021. A hearing was arranged for June 7, 2022.

Reasons

Applicable Legislation and Policy

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

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.

Under subsection 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.

Subsection 27(1) of the Act states that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

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 section 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 attended the hearing and was represented by a worker advisor who made a presentation to the panel. The worker and the worker advisor responded to questions from the panel.

The worker's position was that they did not fully recover from their compensable injury and are entitled to further benefits beyond December 13, 2020. The worker had a partial recovery but described ongoing post COVID-19 symptoms, continuing past the date they returned to work. The worker summarized the results of a variety of medical tests undertaken to determine the cause of the worker’s ongoing symptoms. There was no underlying medical diagnosis for the worker’s symptoms except for “long haul COVID”.

The worker’s representative referred the panel to documents that reference the potential long term impacts of COVID-19 which support the worker’s position, including a report from the World Health Organization on post COVID-19 condition. The worker and the worker’s advisor are of the opinion that the worker meets the definition of post COVID-19 condition, their ongoing symptoms are a consequence of contracting COVID-19 and that the worker is entitled to further benefits as a result.

Employer’s Position

The employer was represented at the hearing by an employer’s representative. The employer’s representative submitted that there was insufficient information on post-COVID condition to determine entitlement, on a balance of probabilities, for compensation after December 13, 2020. The worker’s symptoms were not concordant with full disability and it was not possible to medically relate the worker’s symptoms to COVID-19. Written articles confirm that not enough is known about post COVID and understanding of post COVID is evolving. No medical evidence is available to prove a causal connection between the worker’s symptoms and the compensable injury.

Analysis

For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker had not recovered from the effects of the compensable injury by December 13, 2020. The panel was able to make this finding.

The worker’s advisor referred to a consensus paper from the World Health Organization (WHO) which provides that:

Post COVID-19 condition occurs in individuals with a history of probable or confirmed SARS-CoV-2 infection, usually 3 months from the onset of COVID-19 with symptoms that last for at least 2 months and cannot be explained by an alternative diagnosis. Common symptoms include fatigue, shortness of breath, cognitive dysfunction but also others and generally have an impact on everyday functioning. Symptoms may be new onset following initial recovery from an acute COVID-19 episode or persist from the initial illness. Symptoms may also fluctuate or relapse over time.

The worker was a credible witness who answered the panel’s questions in a clear and forthright manner. The worker described to the panel a history of their COVID-19 symptoms and the medical tests which ruled out a number of medical conditions. The worker initially reported most of their symptoms improved but within a short period of time their symptoms got worse. The worker’s history of symptoms appears to fall within the definition of post COVID-19 condition noted above. The worker's cardiologist believed “its most likely [the worker’s] symptoms are post COVID (long-term)”; the general practitioner opined “there is a high probability that [the worker’s] current symptoms could be attributed to a post-COVID condition”; and the respirologist simply stated “long haul COVID”.

In March 2021, the WCB internal medicine consultant stated that “the medical information on file does not presently substantiate an organic/physiologic basis in relation to the prior December 3, 2020 covid-19 infection to medically account for [the worker’s] current symptoms”. However, this conclusion appears to be limited by the lack of diagnostic criteria, rather than a full assessment of whether the worker's ongoing symptoms were related to the original compensable injury. The WCB’s medical consultant’s comments highlight a need for the development of a consistent description and definition of a post COVID-19 condition (or long-haul, as the condition is sometimes described), and what WCB policies should be developed to establish compensability. The panel notes that WCB decision-making appears to emphasize the absence of medical evidence to support ongoing compensability of the worker's symptoms. WCB decision-making appears to consider only clinical evidence, instead of the totality of the evidence on file. The panel acknowledges that there is a lack of clinical evidence that the worker suffered from a post COVID condition but, in the absence of evidence indicating the worker suffered from some other condition, places weight on the opinions of the worker’s treating physicians.

The panel is satisfied, on a balance of probabilities, that the worker had not recovered from the effects of the compensable injury and continued to experience residual symptoms from their compensable COVID-19 diagnosis after their benefits were terminated.

As such, the panel finds that the worker is entitled to benefits beyond December 13, 2020, and is returning the claim for further adjudication. The worker's appeal is accepted.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 14th day of June, 2022