Decision #69/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was not entitled to further benefits in relation to the March 19, 2018 accident. A hearing was held on April 19, 2022 to consider the worker's appeal.
Whether or not the worker is entitled to further benefits in relation to the March 19, 2018 accident.
The worker is entitled to further benefits in relation to the March 19, 2018 accident.
The employer filed an Employer's Incident Report with the WCB on March 21, 2018, reporting the worker injured her head at work on March 19, 2018 when a client jumped at her back, knocking her to the floor. The employer noted that the following day, the worker reported having a headache and feeling dizzy, then sought medical treatment and did not come to work.
The WCB received a Doctor's First Report from the worker's treating family physician for the worker's appointment on March 20, 2018, which noted complaints of headache, dizziness, fatigue, and poor concentration, but no nausea. After examining the worker, the physician noted findings of pain to the occipital area with palpation, tenderness in the trapezius muscles and paraspinal nerves at the base of the neck. The physician diagnosed the worker with a concussion and recommended rest and time off work. On March 28, 2018, the WCB accepted the worker's claim and payment of benefits commenced.
On April 4, 2018, the employer advised the WCB that they had received a medical note from the worker's physician indicating she could return to work beginning April 4, 2018 on modified duties and four hours per shift, returning to full regular hours the following week.
The worker continued to seek regular medical treatment, and on July 12, 2018, the worker attended an initial physiotherapy assessment, reporting headaches, dizziness, neck pain, fatigue, light sensitivity, and mood swings. The physiotherapist noted some neurological deficits and diagnosed the worker with WAD 1 (whiplash associated disorder, level one) and post concussion syndrome.
At the worker's follow-up appointment with a second family physician on July 20, 2018, the physician noted that the worker was working on vestibular physiotherapy at a sports medicine facility, but was having trouble doing full exercises due to ongoing symptoms and was still quite fatigued. The physician recommended the worker work six-hour shifts and advance as able to or as recommended by the physiotherapist.
On August 24, 2018, the WCB contacted the employer to gather further information regarding the claim. On August 29, 2018, the employer provided the WCB with contact information for four co-workers who witnessed the March 19, 2018 incident or spoke to the worker shortly afterwards. On August 29 and September 4, 2018, the WCB spoke with the worker's co-workers who confirmed the mechanism of injury, with one of them noting the worker appeared "…definitely dizzy and seemed off balance" after the incident.
On July 30, 2018, the worker attended a call-in examination with a WCB medical advisor. The medical advisor's notes of that examination were placed on file, and a copy of the notes was forwarded to the worker's family physician on September 10, 2018. Based on his examination of the worker and his review of the information on file, the WCB medical advisor confirmed that the criteria for the diagnosis of a concussion had been met and that a referral to a concussion program was supported. The medical advisor also opined that even though the criteria for a concussion diagnosis were met, many of the worker's reported symptoms were not accounted for on a patho-anatomical basis, including prolonged loss of memory, left-sided neurological symptoms and the weather having an impact on the worker's symptoms. The medical advisor commented that at five months post injury, the worker was well outside the typical recovery period for concussion, but noted that an August 29, 2018 physician's note recommending the worker's hours be restricted to six hours daily was reasonable pending assessment at the concussion clinic.
On August 21, 2018, the worker saw her treating neurologist for follow up regarding her migraine headaches. The neurologist performed a series of tests and opined that the worker had persistent post-concussion syndrome with cognitive dysfunction, sleep disturbance, headaches and occipital neuralgia, and neck pain. The neurologist recommended MRIs of the worker's brain and cervical spine on an urgent basis. At a further appointment on October 12, 2018, the worker's treating neurologist reviewed the MRIs conducted September 23, 2018, noting the MRI of the worker's brain and the MRI of her cervical spine were both relatively normal. The neurologist noted that a neurological examination of the worker on that date was also normal.
On February 13, 2019, the worker's treating physiotherapist noted the worker continued to have occasional dizziness and nausea, light sensitivity, difficulty with screens and reading, and occasional headaches. The treating physiotherapist reported the worker had difficulty with tracking and convergence testing of her eyes, and recommended the worker be seen by an optometrist for an assessment due to the continued visual problems. On March 9, 2019, the worker was seen by the optometrist, who provided a diagnosis of post-concussion vision syndrome consisting of oculomotor dysfunction, accommodation insufficiency and infacility, and convergence insufficiency, and recommended Optometric Vision Therapy treatment. On March 12, 2019, the worker was also seen by a neuro-ophthalmologist, who diagnosed her with post-concussion syndrome and provided treatment recommendations.
On May 27, 2019, the worker's file was reviewed by the WCB medical advisor. The medical advisor opined that the medical evidence on the worker's file substantiated that the worker had occipital headaches, photo/phono phobia, nausea and visual disturbances prior to the March 19, 2018 workplace accident, and that the worker's current reported symptoms were similar to those reported prior to the incident. The WCB medical advisor noted the worker had a normal neurological examination on August 21, 2018, indicating no clinical evidence of cognitive impairment. The WCB medical advisor further opined that the worker's current difficulties were not related to the workplace accident, as they were fully accounted for in relation to the worker's pre-existing migraine/occipital headaches, and there was no need for any workplace restrictions related to the workplace accident. The WCB medical advisor further recommended that a WCB neuro-ophthalmology consultant review the worker's file regarding the neuro-ophthalmological visual complaints.
On July 26, 2019, the worker's file was reviewed by a WCB neuro-ophthalmology consultant, who opined that the worker's "constellation of visual symptoms and the abnormal visual findings" described in the March 9, 2019 optometry report were not medically accounted for in relation to the March 19, 2018 concussion. The consultant noted that the medical reports on file regarding the worker's symptoms after the March 19, 2018 workplace accident did not indicate the occurrence of visual symptoms in close proximity to that accident. The consultant noted that optometric findings on March 9, 2019 and associated diagnosis of oculomotor dysfunction were not supported by the normal eye movement findings reported by the treating neurologist between August 21, 2018 and January 2, 2019, or in the neuro-ophthalmology assessment on March 12, 2019, and the March 9, 2019 diagnoses of accommodation insufficiency and infacility and of convergence insufficiency were not supported by any metrics. The consultant therefore concluded that he did not recommend the WCB support the Optometric Vision Therapy proposed by the optometrist.
On August 20, 2019, the WCB advised the worker that they had determined she had recovered from the effects of her March 19, 2018 workplace accident and was not entitled to further benefits.
On September 17, 2019, the worker's representative requested that Review Office reconsider the WCB's decision, noting the worker continued to receive treatment for her difficulties and had not recovered. On October 7, 2019, the worker's representative submitted additional information in support of their position, including a September 26, 2019 letter from the treating optometrist; a July 12, 2019 letter from the worker's treating family physician; a June 20, 2019 statement from another of the worker's co-workers; and an article from a medical journal.
On October 30, 2019, Review Office requested that the WCB's neuro-ophthalmology consultant review the submitted information. On December 13, 2019, the WCB's neuro-ophthalmology consultant provided his opinion with respect to the submitted information, and advised that there would be no change to his earlier opinion. A copy of the WCB neuro-ophthalmology consultant's opinion was provided to the worker on the same date. At the request of the worker's representative, the reconsideration request was withdrawn on December 19, 2019 so further medical information could be gathered.
On April 29, 2020, the worker's representative again requested that Review Office reconsider the WCB's decision. The representative submitted additional documentation in support of that request, including a March 5, 2020 report from a sports medicine physician; a February 4, 2020 report from an ophthalmologist; a January 30, 2020 report from a pediatric ophthalmology clinic; a January 27, 2020 report from the worker's treating endocrinologist; and copies of the information provided to Review Office on September 17, 2019. The representative submitted that the worker continued to receive ongoing treatment related to her compensable injury and required further benefits. As the submitted documentation included further medical information and opinions, Review Office returned the worker's file to the WCB's Compensation Services for further investigation. Further medical documentation was submitted on July 14, 2020, including a letter from the worker's treating neurologist dated June 30, 2020.
The additional medical information was provided to the WCB's neuro-ophthalmology consultant for further review. On November 17, 2020, the consultant opined that the worker "…does not have impairment of her oculomotor function in relation to the March 19, 2018 concussion; and that as such, any symptoms or impairment of function that may be attributed to her oculomotor system, such as fatigue, photosensitivity, headaches, nausea/vomiting, or impairment of balance, gait or coordination are not medically accounted for in relation to the March 19, 2018 concussion." The consultant went on to conclude that "from a neuro-ophthalmologic perspective, there is and has been no measurable impairment of oculomotor function stemming from the March 19, 2018 concussion on which to restrict [the worker] from her full and usual duties."
On January 15, 2021, the worker's file was also reviewed by the WCB medical advisor, who referred to his September 10, 2018 call-in examination of the worker and confirmed his previous opinion that the worker sustained a concussion based on the reported mechanism of injury. The medical advisor went on to opine, however, that the natural history of a concussion is for gradual improvement of symptoms over time, with the majority of cases resolving over a period of days to weeks. The medical advisor opined that the worker's current reported difficulties were related to pre-existing conditions and not the workplace accident.
On January 18, 2021, the WCB advised the worker that a complete review of her file had been completed, including the additional information, and the August 27, 2019 decision that she was not entitled to further benefits remained unchanged.
On January 18, 2021, the worker's representative requested that Review Office reconsider the WCB's decision based on their submission of September 17, 2019. On March 3, 2021, Review Office determined that the worker was not entitled to further benefits. Review Office agreed with and accepted the opinions of the WCB medical advisor and the WCB neuro-ophthalmology consultant that the worker's current difficulties were not related to the March 19, 2018 workplace accident. On June 3, 2021, the worker's treating neurologist provided a letter to Review Office refuting points in the January 18, 2021 decision, and on June 7, 2021, Review Office advised the worker that there was no new or relevant additional information in the neurologist's letter and there would be no change to their decision.
On October 22, 2021, the worker's representative appealed the Review Office decision to the Appeal Commission and a videoconference hearing was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of 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.
Subsection 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.
Subsection 27(1) of the Act states that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."
Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, or the worker attains the age of 65 years.
WCB Policy 18.104.22.168, Pre-existing Conditions (the "Policy"), addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Policy is stated, in part, as follows:
The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.
With respect to wage loss eligibility, the Policy states, in part, that:
When a worker has:
1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and
2) the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and
3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.
The following definitions are set out in the Policy:
Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.
Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.
Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.
The worker was represented by a worker advisor, and was accompanied by a family member at the hearing. The worker advisor provided a written submission in advance of the hearing and made an oral presentation to the panel. The worker and family member responded to questions from the worker advisor, and the worker, family member and worker advisor responded to questions from the panel.
The worker's position was that she had not recovered from the effects of her workplace accident when her benefits ended, and is entitled to further wage loss and medical aid benefits in relation to the March 19, 2018 workplace accident.
By way of background, the worker advisor submitted that the worker had been employed by the employer for over four years when the workplace accident occurred. During that time she had attained a supervisory position and was thriving in her role with the employer. It was submitted that the March 19, 2018 accident resulted in the onset of new symptoms, including fatigue, dizziness, concentration difficulties and vision changes, and the worsening of pre-accident symptoms of headache and anxiety, leading to a change in and/or the addition of medical interventions. It was submitted that the combined outcome of these changes caused a prolonged loss of earning capacity and need for various forms of medical aid.
The worker advisor submitted that but for the accident, the worker would not have experienced most of the above difficulties. It was submitted that those difficulties had not resolved by mid-November 2018 when the WCB effectively ceased being responsible for the worker's claim. The worker advisor noted that Review Office stated in their March 3, 2021 decision that they were unable to conclude that the compensable injury of a concussion had persisted beyond August 2019. The worker advisor submitted that such a determination means there was a combined effect relationship between the worker's concussion and pre-existing medical condition(s) through to that point, yet the file evidence indicated the WCB provided no benefit coverage beyond November 12, 2018.
The worker advisor noted that concussion was accepted by the WCB as a compensable injury after the July 30, 2018 call-in examination with the WCB medical advisor, and physiotherapy treatment was later authorized. The worker advisor submitted that it would follow that the worker's diagnosis of post-concussion syndrome would also be compensable. It was noted that the medical advisor supported the worker being referred to a concussion program and maintaining a restriction of six hours per shift pending that referral, but for reasons unknown, the WCB did not facilitate such a referral. The worker advisor further submitted that the WCB's reference to comments about a typical recovery period of a month or so for a concussion did not apply in this case as the WCB acknowledged the worker experienced a prolonged recovery course by accepting her claim through to November 12, 2018.
With respect to headaches, the worker advisor submitted that the medical records established a baseline for the worker's pre-accident headache experience, and whatever the noted severity or frequency of her headaches, the worker appeared to have been able to work full hours performing her full job duties prior to the accident, but not after. The worker advisor asked that the panel prefer the opinion of the worker's treating neurologist who, having examined the worker both before and after the accident, stated that the accident caused a worsening of the worker's headaches, and noted this was a known phenomenon in relation to a concussion. The worker advisor further noted that since the accident, the treating neurologist had attempted to manage or minimize the worker's headaches through new means of injections, and more recently and effectively through a new medication. It was submitted that there would have been no need to trial new medications or treatment methods if the worker's headaches were similar to what she experienced prior to the accident and that the worker was seeking reimbursement for the associated expenses.
The worker advisor also submitted that there was a clear difference of medical opinion with respect to vision difficulties, particularly between the WCB neuro-ophthalmology consultant and the worker's treating optometrist. The worker advisor stated that given the technical nature of these medical opinions, they were simply asking that the panel prefer and attach greater weight to the opinions expressed by the optometrist, who had the benefit of interviewing and examining the worker.
With respect to the issue of anxiety, the worker advisor submitted that the WCB had not yet comprehensively assessed the compensability of this condition. The worker advisor stated that there was no doubt this represented a pre-existing condition, but submitted that the accident and its effects may have aggravated and/or enhanced the worker's anxiety. The worker advisor noted that while the WCB neuro-ophthalmology consultant had recommended a psychiatric/ psychological review of the worker's mental status, the WCB did not act on that recommendation. The worker advisor noted that the treating neurologist had stated that the worker's anxiety had worsened since the incident, indicating this was another known phenomenon of concussion. It was therefore submitted that the worker's use of new anxiety medication shortly after the accident was likely due to the combined effect of her pre-accident anxiety and more recent concussion, and the WCB would be responsible for the full injurious result of that medication.
The worker advisor also noted that evidence shows the worker resigned her position with the accident employer on November 12, 2018 and moved to new employment, which allowed her to continue working within a six-hour restriction and removed her from contact with clients who could be unpredictably violent. It was submitted, however, that this change resulted in a pay reduction, and the worker was seeking a top-up of her earnings on the basis that her healthcare providers suggested or supported this occupational change due to her compensable injury and associated symptoms. In the alternative, if the panel did not accept that the worker was entitled to additional wage loss benefits due to the change in her occupation, it was submitted that at a minimum, the worker should be entitled to wage loss benefits due to her need for a six-hour per shift restriction which would have resulted in a loss of earning capacity if she had remained with the accident employer.
The employer was represented at the hearing by its Executive Director, who participated in the hearing by videoconference. The employer's representative made a submission in support of the worker and her appeal, and responded to questions from the panel.
The employer's representative described the nature of their work, and noted that they assist and support clients with multiple and varied issues, some of whom have a high level of aggression and are unpredictable.
The employer's representative indicated that the worker was "one of those employees that you might come across once or twice in a lifetime." She noted that the worker was energetic, dependable, passionate, and compassionate towards clients and colleagues. The representative stated that following the workplace incident, however, they saw a change in the worker, not in her spirit or compassion, but a huge change in her executive function. She said the worker talked of headaches and dizziness, and they saw many physical signs of dizziness. The worker also talked about eyesight issues, light sensitivity, confusion, and memory loss. She noted that the worker did everything she could to try to keep doing her duties, but her symptoms got worse, not better.
The employer's representative stated that they tried to be as flexible as possible to accommodate the worker, including by providing a place for her to rest, making sure she was not around anyone who was aggressive, and turning the lights down in the building. She stated that they did not care whether the worker managed to do one or six hours of work during the day. She said the staff were incredibly protective of the worker not only in terms of keeping her safe around clients, but also in encouraging her to do what was necessary to take care of herself.
The employer's representative said that they did whatever they needed to do with the worker as they did not want to lose her or put her at risk. With time, however, it became evident that she had to have time off to recover completely or, as her neurologist and her family physician were suggesting, she needed to find another position where she would not be at risk or concerned about being at risk and could recover. The representative stated that they tried to convince the worker to consider some other possibilities with the employer where she would not have to be around clients, and that they could easily have made that work for her as a career, but the worker did not consider that to be a "plausible possibility," as her passion was to be around clients and interactive with staff.
The employer's representative noted that they had a conversation with the worker about their ability to continue paying her full salary, but noted that they could not afford to do so as a long-term intervention. She noted they had to bring people in to do part of the worker's job, but this was not something they could sustain on a long-term basis.
The issue before the panel is whether or not the worker is entitled to further benefits in relation to the March 19, 2018 accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker has a further loss of earning capacity and/or requires further medical aid as a result of the March 19, 2018 workplace accident and injury. For the reasons that follow, the panel is able to make that finding, in part.
The worker has an accepted claim for a concussion which she suffered as a result of her March 19, 2018 workplace injury. In their March 3, 2021 decision, Review Office determined that they were unable to conclude that a cause and effect relationship continued to exist between the compensable injury, its diagnosis and the evidence of this claim beyond August 2019. Review Office therefore determined that there was no entitlement to further benefits aside from those which had already been paid to the worker. The worker has appealed that decision.
Based on our review of all of the information that is before us, on file and as presented at the hearing, and the submissions of the parties, the panel is satisfied that the worker had not recovered from the effects of her compensable injury as of August 2019 and is entitled to further benefits as indicated below.
It is not disputed that the worker had a history of migraines or severe headaches prior to her workplace accident. The panel is satisfied that the evidence shows that the worker's headaches became significantly worse as a result of her accident, resulting in an aggravation of her previous condition which had not resolved as at August 2019. At the hearing, the worker provided further details of how the injury affected her in terms of her functional ability and her ongoing difficulties and challenges. When asked how extensive her headaches were prior to her concussion, the worker said that:
So prior to my headaches before I got the concussion, I was getting migraines but it was managed under a medication called [name]…And so as long as I was on my [name] I would have an occasional migraine, I've had them since I was in grade nine or eight, but nothing compares to what they were like after my head injury. I never had to have a complete like memory loss programs or struggle to walk and stuff like that, like if they were bad prior to my head injury, I would just sleep it off usually. And it's different.
The worker further acknowledged that she would have multiple headaches previously in a month, but that they were more controlled, and she was able to function and was able to do her duties. Following the accident, however, she was unable to perform many of her work duties and further medication and significant accommodations were needed to try to address her headaches and ongoing symptoms.
The evidence shows that the worker was also diagnosed with anxiety following the workplace accident. While the worker had previously been treated for anxiety, the panel is satisfied that the evidence supports that the worker suffered increased anxiety and which was related to her compensable injury. The panel further notes that although the WCB medical advisor suggested, on May 27, 2019, that it would be reasonable to have a WCB psychiatric/psychology consultant review the file and provide an opinion regarding the psychiatric/psychological diagnosis, this does not appear to have been done.
With respect to questions of difficulties with vision, the panel accepts the opinion of the WCB neuro-ophthalmology consultant that the worker "…does not have impairment of her oculomotor function in relation to the March 19, 2018 concussion; and that as such, any symptoms or impairment of function that may be attributed to her oculomotor system, such as fatigue, photosensitivity, headaches, nausea/vomiting, or impairment of balance, gait or coordination are not medically accounted for in relation to the March 19, 2018 concussion" and that "from a neuro-ophthalmologic perspective, there is and has been no measurable impairment of oculomotor function stemming from the March 19, 2018 concussion on which to restrict [the worker] from her full and usual duties."
With respect to the question of lost wages, the panel is unable to find that the worker has a further loss of earning capacity or requires further wage loss benefits as a result of her workplace accident and injury. While the worker changed jobs in November 2018, the panel is satisfied that the evidence does not support that the worker was medically required to change her job some six months after suffering a concussion injury.
In this regard, the panel notes that in a memorandum to file dated October 30, 2018, the worker's case manager noted that she had returned a call from the worker and the worker had advised that she was currently working reduced hours of six hours/shift due to her injury and her treating neurologist and family physician had both advised her that it was not possible for her to work a full 8 hours/shift and she should look for other job opportunities with less hours. It was further noted that she just given her resignation and two weeks' notice to the accident employer, and she would be starting a new job elsewhere on November 13, 2018 working 6 hours/day where the duties were less intense.
When asked at the hearing about the conversation with her doctors regarding changing jobs, the worker further stated that both her family doctor and her neurologist "…made it very clear to me that I couldn't put myself in situations where I could jar my head anymore." The worker's family member, who indicated that she was present with the worker for those conversations, similarly indicated that both doctors and "especially the neurologist did not want [the worker] to be at risk for sustaining another injury to her head." The panel acknowledges the worker's evidence and concerns in this regard, but notes that workplace restrictions as indicated on the file appear to relate to reduced working hours only.
Based on the evidence, the panel finds that the worker voluntarily changed jobs without the WCB's involvement or input. While the worker has indicated that she suffered a reduction in pay when she changed jobs, as she was being paid at a lower rate, the panel is satisfied that such a loss of income is not due to her compensable injury, but to her decision to change jobs. Similarly, while it was argued that the worker had not recovered from the effects of her compensable injury and should at least be compensated for the balance of a full shift, as she continues to be restricted to working six-hour shifts only, the panel is of the view that the worker's entitlement to any such benefits ended when she decided to leave her employment with the accident employer. The panel notes the employer's representative stated that they tried to convince the worker to consider some other possibilities with the employer and that they could easily have made that work for her as a career. The evidence indicates the worker was not willing to pursue that. In the circumstances, the panel is satisfied that the worker did not suffer a loss of earning capacity as a result of her workplace injury and is not entitled to further wage loss benefits as of November 13, 2018.
However, the panel is satisfied, that the worker is entitled to further medical aid and medical aid benefits for the effects of the compensable concussion including headaches and increased anxiety. The panel notes that this would include issues with respect to the worker's entitlement to medical aid benefits prior to August 19, 2019, as it appears that such issues were not fully adjudicated previously. Thus, when asked whether she recalled the WCB issuing reimbursement for medical expenses, the worker's family member stated that they had never received any monetary benefit from WCB for medications.
The panel would note that this would also include review and consideration of issues which were raised at the hearing with respect to a syndrome which the worker was diagnosed as having developed as a result of the use of medications which were prescribed and a more recent trial medication which the worker has indicated she started using in September 2019.
The worker's appeal is allowed, in part.
M. L. Harrison, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 16th day of June, 2022