Decision #75/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was not entitled to further benefits beyond June 28, 2021. A videoconference hearing was held on February 24, 2022 to consider the worker's appeal.
Whether or not the worker is entitled to further benefits after June 28, 2021.
The worker is not entitled to further benefits after June 28, 2021.
This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 41/21, dated March 26, 2021. The background will therefore not be repeated in its entirety.
On January 14, 2020, the worker reported to the WCB that she sustained a head injury in an incident at work on December 30, 2019, when she was struck in the face and head-butted twice by a client. The worker noted she had not missed any time from work, but was still experiencing problems with driving, dizziness and severe headaches.
The WCB received a Doctor First Report relating to a January 10, 2020 appointment with a family physician, who noted the worker's complaints of an ongoing headache after being attacked by a client. The physician diagnosed the worker with a head injury and referred her for a CT scan. On January 16, 2020, the WCB's Compensation Services advised the worker that her claim had been accepted.
On January 22, 2020, the worker underwent a CT scan of her brain, which indicated "No acute intracranial abnormality is seen." In a discussion with the WCB on February 28, 2020, the worker advised that she noticed dizziness two days after the workplace accident and issues with her eyesight started a few weeks after that. The worker advised that she was having a hard time with driving, reading, turning lights on, watching television and using her phone. The worker also noted that she could not stand more than 15 minutes without getting dizzy, avoided bending down and had to lie down while reading.
On March 16, 2020, the worker was seen by a neurologist, who noted the worker reported she was hit in the head by a client in December 2019 and hit her head on the floor and two days later developed dizziness and headaches. After examining the worker, the neurologist diagnosed the worker with symptoms consistent with post-concussion syndrome.
In a March 24, 2020 report, the worker's optometrist advised that the worker was initially seen on February 28, 2020 with complaints of experiencing a headache and feeling dizzy after reading for five minutes. The optometrist advised the worker returned to see him on March 3, 2020 because she had forgotten to advise him on the first visit of the workplace incident, specifically being head-butted, and the optometrist opined that "This is likely the cause of her dizziness and headache, probably suffered a concussion."
On March 31, 2020, the worker's file was reviewed by a WCB medical advisor, who noted that the initial medical information on file did not report any "…immediate post injury symptoms to support the occurrence of a brain injury" and that the WCB's criteria for a diagnosis of a concussion were not met. The WCB medical advisor opined that "Based on consideration of the MOI [mechanism of injury], the lack of initial symptoms indicative of brain injury, the demonstrated ability to continue to perform all of her regular duties for a period of two months, and the time now passed for recovery (three months), it is concluded that any effects of the reported head injury have likely resolved by now (consistent with the typical natural history of minor head injuries or concussion) and the current diagnosis appears to be non-specific headache in the setting of reported anxiety and depression…"
On April 2, 2020, Compensation Services determined the worker had recovered from the effects of her workplace injury and was not entitled to further benefits. Compensation Services advised that a relationship between the workplace accident and the worker's current difficulties could not be established and a recurrence of her injury was not accepted.
On April 21, 2020, the WCB received a Doctor First Report from an examination on January 3, 2020. The attending physician indicated in that report that the worker reported a client had hit her in the forehead with his forehead, and the worker was experiencing dizziness on and off, light-headedness, and occasional room spinning and nausea. On examination, the physician noted no bruising or swelling on the worker's forehead, but slight swelling and a small bruise under the worker's left eye, and provided a diagnosis of "dizziness post attacked."
On April 22, 2020, the worker's union representative asked that the worker's WCB case manager investigate the worker's claim further, including obtaining statements from the worker's co-workers and clarifying the mechanism of injury with the worker. Included with the representative's request was an April 6, 2020 report from the worker's treating neurologist in support of the worker's request for further investigation into her claim. The WCB received statements from two co-workers on April 29 and May 6, 2020, respectively.
On May 11, 2020, a WCB medical advisor reviewed the worker's file and opined that the worker suffered a minor head injury as a result of the workplace accident on December 30, 2019 and that the WCB's criteria for a concussion were not met. The medical advisor noted that as the worker was able to continue performing her regular duties and other tasks such as driving, the contention that the worker sustained a significant brain injury was not supported. The medical advisor further opined that the reported later progression of symptoms and associated perceived functional limitations were unexplained and unaccounted for in relation to the workplace accident. On May 13, 2020, Compensation Services advised the worker that a further investigation had been conducted and there would be no change to their earlier decision.
On May 21, 2020, the worker's union representative requested that Review Office reconsider Compensation Services' decision. On August 12, 2020, Review Office determined that the worker was not entitled to further benefits. Review Office placed more weight on the evidence in close proximity to the December 30, 2019 workplace accident which did not show the worker sustained an immediate brain injury as there was no evidence of a loss of consciousness, alteration in mental state, loss of memory or acute neurologic deficit. Review Office found the worker sustained a facial contusion and a minor head injury, and was unable to establish the worker suffered a more significant injury. Accordingly, Review Office could not establish a relationship between the worker's ongoing difficulties and the workplace accident.
On August 25, 2020, the worker's union representative appealed the Review Office decision to the Appeal Commission, and a videoconference hearing was arranged. On March 26, 2021, pursuant to Appeal Commission Decision No. 41/21, it was determined the worker was entitled to further benefits in relation to the December 30, 2019 accident and the worker's file was returned to the WCB's Compensation Services for further adjudication.
On March 31, 2021, the WCB contacted the employer to gather further information. On April 13, 2021, Compensation Services advised the worker that she was entitled to wage loss benefits and requested further information regarding her upcoming medical appointments. Also on April 13, 2021, the WCB received an April 8, 2021 report from the worker's treating family physician in response to the request for information from the WCB. The physician indicated the worker had not been referred to a psychologist or psychiatrist previously and noted the worker had recovered from the depression she had been suffering from by December 2020 and did not currently have any mental health issues.
On April 21, 2021, the employer advised the WCB that the worker had been on a graduated return to work plan, developed by the worker's employee disability plan, with an expected return to full regular duties by April 19, 2021. On April 22, 2021, the worker advised the WCB that she was experiencing increased symptoms and was seeking treatment from her family physician. On May 3, 2021, the worker saw her family physician, complaining of ongoing headache, confusion and dizzy spells. The family physician indicated the worker had "depression and agitation – dizziness with changing position." The physician referred the worker to neurology and recommended she remain off work until the neurology assessment.
On May 6, 2021, the worker was seen by her treating neurologist. After examining the worker, the neurologist opined that the worker had "…frequent headaches (with tension type qualities) and non-specific dizziness that she states are similar to the symptoms she had following a head injury in December 2019." The neurologist opined that the worker's dizziness was non-specific and "…may be related to the headaches or other non-neurologic causes…that could be investigated by her family physician if her dizziness does not improve with treatment of the headaches." The neurologist prescribed medication to treat the headaches.
On May 19, 2021, the worker was seen by a sports medicine physician and reported symptoms of headache, dizziness, nausea and/or vomiting, sensitivity to light and noise, feeling slowed down, fogginess, difficulty concentrating, fatigue/low energy, confusion, drowsiness, anxiousness and depression and tinnitus, with increased symptoms with physical and mental activity. The physician diagnosed the worker with a concussion, and recommended continued physiotherapy and reduced hours at work.
On June 21, 2021, the worker's file was reviewed by the WCB medical advisor, who opined that the worker's current diagnosis was tension type headaches and non-specific dizziness, and noted that the typical natural history of recovery for head injuries was for a gradual and progressive recovery, typically over a period a few days to a few weeks. The medical advisor opined that "…the reported relatively sudden worsening of symptoms noted…in the May 6 21 neurologist's report would not be typical of the recovery from concussion." On June 22, 2021, Compensation Services advised the worker that they had determined she had recovered from the effects of her December 30, 2019 workplace accident and was not entitled to further benefits beyond April 18, 2021.
On July 15, 2021, the worker's union representative requested that Review Office reconsider Compensation Services' decision. The representative submitted that the evidence on the worker's file indicated she continued to suffer ongoing symptoms and restrictions as a result of the workplace accident and should be entitled to further benefits.
On September 13, 2021, Review Office determined the worker was entitled to benefits to June 28, 2021. Review Office accepted and agreed with the opinion of the WCB medical advisor and concluded the worker had recovered from the December 30, 2019 workplace accident and was not entitled to further benefits. Review Office noted, however, that Compensation Services had not completed their investigation into the worker's claim until a letter was sent to the worker on June 22, 2021, and that the worker was therefore entitled to benefits to June 28, 2021.
On September 15, 2021, the worker's union representative appealed the Review Office decision to the Appeal Commission and a videoconference hearing was arranged for February 24, 2022.
Following the hearing, the appeal panel requested additional information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On May 26, 2022, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations made under the Act and policies of the WCB's Board of Directors. The Act and regulations in effect on the date of the December 30, 2019 incident 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.
The worker was represented by a union representative, who provided a written submission in advance of the hearing, and made an oral presentation to the panel.
The worker's position was that she is entitled to further benefits beyond June 28, 2021 as the evidence supports she continued to experience ongoing symptoms and restrictions as a direct result of the compensable head injury she sustained on December 30, 2019.
The worker's representative submitted that simply because most individuals experience a relatively quick recovery after a head injury does not mean that all do. On the contrary, by definition, it means that some individuals will continue to experience persistent effects, and the worker's prolonged recovery was just that, a prolonged and difficult recovery.
The representative submitted that while the worker had acknowledged that her headaches, nausea, dizziness and vision difficulties had been gradually improving, becoming less frequent and less severe, improvement is not the same as resolution. After being off work for about eight months, the worker began a gradual return to work in November 2020. She was nearing the end of the anticipated gradual return to work plan in April 2021 when she experienced an increase in her difficulties, but still had symptoms that required restrictions and medical treatment. It was submitted that just as her experience did not follow the expected timeframe for recovery, the course of her recovery had been variable.
The worker's representative submitted that the evidence supports the worker suffered a recurrence of her compensable injury. It was submitted that while possible causes have been proposed, the cause is immaterial as long as it was the compensable injury that reoccurred.
The worker's representative submitted that the medical evidence demonstrates the worker experienced an intensification of the same symptoms she had been enduring since her workplace accident. The representative submitted that there was no evidence to support the assertion that the worker's headaches were new or unrelated to her compensable injury. It was submitted that it was extremely unlikely the worker had recovered from the headache and dizziness associated with her compensable injury only to immediately experience an onset of new and unrelated headaches and dizziness.
The worker's representative submitted that a complicated, prolonged or atypical course of an injury cannot, in itself, be construed as evidence of recovery. The representative submitted that the lack of any evidence supporting recovery, combined with the evidence the worker had continued to experience persistent symptoms since her workplace accident, particularly headaches and dizziness, supported that her symptoms continued to be directly related to her compensable injury.
The worker's representative acknowledged that a number of factors, including ongoing psychosocial distress related to her injury, the stress of increasing hours of work, the anxiety of an impending return to pre-accident duties, and the increased physical exertions at work and at home shoveling snow, may have contributed to the worker's increased symptoms and the recurrence of her compensable injury. It was submitted that regardless of what specifically triggered the exacerbation, "but for" the workplace accident and resultant compensable injury, the worker would not have experienced persistent headaches and dizziness after December 30, 2019, which progressed until March 2020, then began to improve, but again deteriorated in April 2021.
In conclusion, the worker's representative submitted that the worker is entitled to benefits beyond June 28, 2021 because the evidence supports she experienced a resurgence of symptoms associated with the compensable injury in April 2021 which warranted a temporary reduction in her work hours. It was submitted that although her recovery may have taken longer than the WCB had anticipated, the evidence supports that the worker made every effort to overcome the effects of her injury, including periodic setbacks such as occurred in April 2021, and with the reduction in her hours of work and additional support, she had been able to maintain a sustainable return to work.
The employer was represented by an advocate and by its Return to Work Specialist. The advocate provided a written submission in advance of the hearing, and made an oral submission to the panel.
The employer's position was that the evidence does not establish the necessary relationship exists between the worker's ongoing complaints and the December 30, 2019 workplace accident, and the Review Office decision should be affirmed.
The employer's advocate noted that key wording in the Review Office decision was that they were unable to medically account for an increase in the worker's symptoms in relation to the workplace accident.
The advocate noted that immediately prior to returning to her full working hours on April 22, 2021, the worker indicated to her case manager that she had symptoms of dizziness and headaches again and was not sure what had brought this on.
The advocate noted the worker reported to her neurologist on May 6, 2021 that she had on and off dizziness and headaches once per week, but three weeks ago she developed a variety of symptoms including worsening of her headaches and dizziness and was also now complaining of eye tearing, confusion and ringing in her ears. The neurologist noted that the worker could not identify any new triggers and found the new symptoms stressful.
The employer's advocate submitted that it was noteworthy that there were references in three or four medical reports to a snow shoveling incident, which would tend to correlate the increase of symptoms to the shoveling of snow twice a day for three days. The advocate submitted that this would be an exacerbation of symptoms by a non-compensable incident. The advocate noted that if the head injury had been non-compensable and the snow shoveling arisen from work, it would be acceptable as an aggravation of a pre-existing condition, and submitted that the reverse was true, that the aggravating shoveling incident being non-compensable, the resulting symptoms and time loss would be non-compensable.
In closing, the employer's advocate submitted that it is well-established that it is not up to the panel to identify an alternate cause for the worker's symptoms, but rather to determine if the totality of credible evidence established the necessary nexus between the compensable accident and the worker's ongoing complaints. The advocate submitted that such a relationship had not been, and could not be, established in this case, and requested that the worker's appeal be denied.
The issue before the panel is whether or not the worker is entitled to further benefits after June 28, 2021. For the worker's appeal to succeed, the panel must find, on a balance of probabilities, that the worker continued to suffer from the effects of her December 30, 2019 workplace accident and compensable injury beyond June 28, 2021. The panel is unable to make that finding, for the reasons that follow.
Based on our review of all of the information that is before us, the panel is unable to relate or account for the increase in the worker's symptoms in or around mid-April 2021 in relation to the compensable injury or to relate her ongoing issues to that injury.
The panel notes that the evidence shows the worker had been working on a graduated return to work program for several months, with a return to full work planned for April 19, 2021. The panel finds that the evidence shows the program was fairly stable and had been going fairly well, and the worker had participated in the graduated return to work without a reoccurrence or re-emergence of symptoms.
On May 4, 2021, the worker advised her WCB case manager that she again had symptoms of dizziness and headaches, and was not sure what had brought it on. The worker also mentioned she had been shoveling snow some three weeks earlier, on April 13 and 14.
The worker attended her treating neurologist on May 6, 2021, and reported she had developed a variety of symptoms three weeks earlier, including worsening of her headaches and dizziness, and was also now experiencing eye tearing, confusion and ringing in her ears. The neurologist noted that the worker had "…frequent headaches (with tension type qualities) and non-specific dizziness that she states are similar to the symptoms she had following a head injury in December 2019." The neurologist opined that the worker's dizziness was non-specific and "…may be related to the headaches or other non-neurologic causes…that could be investigated by her family physician if her dizziness does not improve with treatment of the headaches."
The panel is unable to rationalize this sudden increase in symptoms or onset of symptoms in relation to the worker's compensable injury. The panel is further of the view that the symptoms as described and reported at this point appear to be more in the nature of migraine headaches, which were not related to the worker's compensable head injury.
Two weeks later, on May 19, 2021, the worker saw the sports medicine physician, and reported far greater symptoms, including not only headache and dizziness, but also nausea and/or vomiting, sensitivity to light and noise, feeling slowed down, fogginess, difficulty concentrating, fatigue/low energy, confusion, drowsiness, anxiousness and depression and tinnitus, with increased symptoms with physical and mental activity. The physician diagnosed the worker with a concussion.
The panel is unable to explain such a further increase in symptoms as noted by the treating sports medicine physician, or further significant change in the worker's status, over such a short period of time, in the absence of a triggering event. The panel finds that there is a lack of clinical evidence to support that the increase in the worker's symptoms was related to the worker's compensable injury.
The worker also attended their treating physiotherapist on April 30, 2021. The report of the physiotherapist notes that the worker reported that she had "some HA [headache] and dizziness; 3 weeks of HAs, ringing ear, nausea, eyes get tears" and was not sure what would cause it, and that on assessment the physiotherapist reported "normal vestibular findings; symptoms of dizziness, nausea could be related to her 3 week headache and the cause may be her neck muscles or other source (fatigue, stress, other?)." In terms of a treatment plan, the physiotherapist noted the worker could follow-up only for neck treatment if she chose, but might attend physiotherapy or massage therapy.
The panel notes that there are significant differences and inconsistencies in the reporting from the treating neurologist and the treating physiotherapist, as compared to the treating sports medicine physician, and places more weight on the reports of the neurologist and the physiotherapist than on that of the treating sports medicine physician.
The panel further notes that the worker continued to seek treatment from the sports medicine physician. The panel requested and reviewed chart notes from the treating sports medicine physician and is of the view that while they are supportive of the worker, there is a lack of medical information or clinical findings which support that the worker has ongoing symptoms of a head injury in relation to the workplace accident or otherwise.
Finally, the panel notes that the worker's family physician had reported to the WCB on April 8, 2011 that any psychological injuries the worker suffered as a result of the workplace accident had resolved by Christmas 2020. The panel also notes, however, that although there is further medical information on file with respect to ongoing psychological concerns, these have not been dealt with in initial adjudication and there is no diagnosis at this point in time. Any such issues therefore did not form part of this appeal.
Based on the foregoing the panel finds, on a balance of probabilities, that the worker did not continue to suffer from the effects of her December 30, 2019 workplace accident and compensable injury beyond June 28, 2021. The panel therefore finds that the worker is not entitled to further benefits after June 28, 2021.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 30th day of June, 2022