Decision #92/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to further benefits after October 26, 2021. A hearing was held on June 16, 2022 to consider the worker's appeal.
Whether or not the worker is entitled to further benefits after October 26, 2021.
The worker is entitled to further benefits after October 26, 2021.
On November 30, 2020, the worker filed a Worker Incident Report with the WCB reporting a respiratory injury having occurred on November 27, 2020. The worker noted she developed symptoms of headache, sore throat, cough and fatigue after being exposed to clients who had tested positive for Covid-19 on November 24, 2020, and that she herself tested positive on November 28, 2020.
The WCB contacted the worker on December 9, 2020 to discuss the claim. The worker confirmed she was working on November 24, 2020 in close proximity to clients, and the employer advised the following day that there had been a Covid-19 outbreak. The worker noted she had been provided with personal protection equipment which she wore while working with suspected positive Covid-19 clients. She said she had symptoms of a sore throat, headache and fatigue on November 27, 2020, developed a cough around November 29, 2020, and lost her sense of taste and smell on December 2, 2020. The worker noted she still had symptoms of headache, mild cough, sneezing and loss of taste and smell, but felt 75% recovered. The worker advised that she went for testing on November 28, 2020 and received positive results on November 30, 2020. The worker said she had been advised by public health officials that she was required to isolate from November 25 to December 7, 2020. The worker noted she spoke with the employer's health and safety personnel on December 7, 2020, and was advised that she had not been cleared to return to work as she was still symptomatic.
On December 15, 2020, the worker advised the WCB that she could not return to work until she was asymptomatic for 24 hours. The worker further advised that she had spoken with her family physician, who prescribed medication for her ongoing headache.
The WCB received a Doctor First Report with respect to the worker's December 11, 2020 virtual visit with her family physician. The family physician noted the worker reported her cough had resolved, but she was experiencing a severe headache on her right temporal side and medications were recommended. On December 21, 2020, the worker advised the WCB that she had been cleared to return to work and her employer was aware she had ongoing symptoms of headache, sore throat and loss of taste and smell.
On January 5, 2021, the worker advised the WCB that she was having ongoing difficulties since returning to work. The worker reported "The headaches are horrible at times. The short-term memory deficit is scaring me. I have been forgetting things which is not safe." The WCB contacted the worker to discuss her report and the worker advised she was arranging an appointment with her family physician to discuss her symptoms. At a virtual appointment on January 6, 2021, the family physician noted the worker's complaints of headaches and fatigue, recommended a gradual return to work, and referred the worker for a CT scan of the brain. The CT scan, performed January 6, 2021, did not detect any abnormality.
The worker's gradual return to work schedule began with four-hour shifts, which were to increase to six-hour, then eight-hour shifts. On February 2, 2021, the employer advised they had returned the worker to four-hour shifts due to an increase in her symptoms. On February 22, 2021, the worker advised the WCB that due to ongoing migraine headaches, her family physician had placed her off work until April 6, 2021. The WCB received a copy of the family physician's report from February 22, 2021, which indicated a change in the worker's diagnosis to "post Covid effects" and noted the worker's headaches and focus issues. The physician noted the worker's recovery was not satisfactory, as she still had lots of symptoms, and that she had been referred for an MRI of the brain. The MRI, performed March 3, 2021, indicated that "A cause for headache has not been identified."
On March 20, 2021, the worker attended a local urgent care facility, complaining of a left temporal headache which she said she had been experiencing since being diagnosed with Covid-19 on November 27, 2020. The worker advised the headaches had been getting worse, and described a "constant burning" feeling. The treating nurse practitioner referred the worker for a consultation with a neurologist, noting the worker had been prescribed various medications and had tried different over-the-counter medications to relieve her headaches. The neurologist recommended a change in medication and referred the worker to a second neurologist who specialized in headache for further assessment.
On April 6, 2021, the worker's file was reviewed by a WCB medical advisor. The medical advisor noted a specific diagnosis for the worker's reported left-sided headaches had not been provided, and the worker had a past medical history of seizure disorder. The medical advisor stated the diagnostic imaging on file "…had not shown any structural changes that might explain the headaches," and opined that based on the currently available medical information, he could not establish a causative relationship between the worker's current difficulties and her November 28, 2020 positive Covid-19 test.
Also on April 6, 2021, the worker advised the WCB that her family physician had placed her off work until May 17, 2021. On April 9, 2021, the WCB advised the worker that they were unable to establish a probable causative relationship between her current medical presentation and her Covid-19 diagnosis, and she was therefore not entitled to wage loss benefits after April 16, 2021.
On May 27, 2021, the worker's union representative requested that Review Office reconsider the WCB's decision to end the worker's entitlement to benefits. The representative submitted that the worker had consistently reported experiencing headaches since the November 24, 2020 workplace accident, which was supported by her treating healthcare providers, and continued to suffer from the effects of her Covid-19 injury resulting in an entitlement to further benefits. On July 5, 2021, Review Office returned the worker's file to the WCB's Compensation Services to gather further medical information.
The WCB received a copy of a June 30, 2021 report from a physiotherapist at a health clinic which noted the worker had referred herself to the clinic's program which had been developed to help people who struggle with continued Covid symptoms on April 10, 2021. The physiotherapist noted the worker displayed signs of post-viral fatigue syndrome with physical and cognitive stressors, and exertion being a trigger for flare-ups of her symptoms. It was noted she was having issues with short-term memory and complaints of significant brain fog, with her main complaint being ongoing left temporal headaches. It was further noted that some small gains had been made through exercises, but the worker's headaches remained and she presented on May 20, 2021 with a flare-up of her symptoms and significant increase in her headaches, which continued after that.
On August 6, 2021, the WCB received a copy of the June 25, 2021 report from the neurologist, but due to a typographical error on the report, the WCB had to request a revised copy, which was not received until October 8, 2021. The report from the neurologist noted the worker's positive Covid-19 test in November 2020, with reported left temporal headache since then, no nausea or vomiting, but phono and photophobia. The neurologist also noted the worker had rare headaches prior to November 2020. The neurologist opined that the worker had a "…history of chronic migraine," prescribed preventative treatment and medication, and made recommendations regarding hydration and sleep hygiene.
On September 7, 2021, the WCB received an August 17, 2021 report from the worker's treating cardiologist. The cardiologist noted the worker reported "…reduced exercise tolerance and increased heart rate" since her recovery from Covid-19, and opined that "This is not uncommon and we see post COVID-19, pots (postural tachycardia syndrome) syndrome like symptoms in some patients." The treating cardiologist opined that the worker "…seems to have classic POTS syndrome after recovering from COVID-19" and prescribed a change in medication. The specialist further opined that from a cardiac perspective, the worker could return to work.
On October 19, 2021, the WCB medical advisor reviewed the neurologist's June 25, 2021 report, along with the worker's file, and opined that the worker's current symptoms of headaches were not objectively accounted for by the medical investigations undertaken to date, and that there was no clinical support for the worker being totally disabled. Also on October 19, 2021, the WCB advised the worker there would be no change to their decision that she was not entitled to benefits after April 16, 2021.
On October 20, 2021, the WCB medical advisor reviewed the August 17, 2021 report from the treating cardiologist. The medical advisor noted the treating cardiologist had provided a diagnosis of POTS for the worker. The medical advisor noted the criteria for a diagnosis of POTS, and opined that the worker did not meet those criteria. That same day, the WCB provided the worker with an updated decision letter, indicating the WCB medical advisor's opinion that the worker did not meet the criteria for POTS.
On October 26, 2021, in response to a request from the worker's WCB case manager, the WCB medical advisor further explained that "POTS Syndrome – like symptoms" was not a recognized medical diagnosis, and that the August 17, 2021 report from the cardiologist appeared to refer to symptoms reported by the worker, "…without objective anatomic or physiologic evidence to confirm a clinical suspicion." The medical advisor opined that without objective anatomic or physiologic evidence, he was unable to establish a probable causative relationship between the worker's reported symptoms and her previous diagnosis of acute Covid-19 infection. On October 27, 2021, the WCB provided a further decision letter to the worker, advising that there was no change to their decision.
On December 8, 2021, the worker's union representative renewed their request that Review Office reconsider the WCB's decision that the worker was not entitled to benefits after April 16, 2021. The representative noted that the worker had not recovered and continued to experience long-term effects related to her compensable injury, including headache symptoms, which were debilitating and resulted in her being unable to successfully return to work. The representative also referred to information to support the worker was experiencing "long haul covid-19" symptoms related to her compensable injury, which required treatment, and submitted that she was therefore entitled to ongoing wage loss and medical aid benefits.
On January 19, 2022, Review Office determined that there was entitlement to benefits to October 26, 2021. Review Office found it reasonable to cover benefits beyond April 16, 2021, while the worker underwent further medical investigations, including physiotherapy, pertaining to her reported symptoms. Review Office noted the worker was listening to the advice of her healthcare providers by seeking this additional treatment and being off work. Review Office placed weight on the opinions of the WCB medical advisor and found there was no clinical evidence on file to account for the worker's current complaints of headaches and POTS in relation to her November 2020 Covid-19. Review Office concluded that the worker should therefore be entitled to benefits to October 26, 2021, inclusive, being the date of the last WCB medical opinion.
On March 14, 2022, the worker's union representative appealed the Review Office decision to the Appeal Commission and a hearing was arranged.
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations under the Act 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.
The worker was represented by a union labour relations officer, who provided written submissions in advance of the hearing and made an oral presentation to the panel. The worker responded to questions from her representative, and the worker and her representative responded to questions from the panel.
The worker's position was that she has not recovered from her compensable injury and is entitled to further benefits beyond October 26, 2021.
The worker's representative noted that leading organizations have recognized long Covid as a consequence for some individuals who contract Covid-19. The representative referred to documents provided in advance of the hearing which reference the potential long-term impacts of COVID-19, including a consensus study from the World Health Organization ("WHO") on post-COVID-19 condition dated October 6, 2021. The representative noted that the WHO study set out a definition of post Covid-19 condition and listed common symptoms of fatigue, shortness of breath, and cognitive dysfunction/brain fog. The representative noted that further medical articles or information they had provided in advance of the hearing indicated that ongoing headaches after Covid are common, and Covid-19 can be a trigger for POTS-like symptoms, such as brain fog, tachycardia and severe chronic fatigue.
The worker's representative submitted that there is no requirement that there be clinical evidence for claim or ongoing benefit acceptance, and that to deny benefits due to the lack of objective medical is not consistent with the Act, regulations or WCB policy.
The representative submitted that the worker's symptoms have been consistent since the original compensable injury, and she has not recovered from her injury. The worker continued to experience symptoms, including debilitating headaches and fatigue, which were not an issue prior to her Covid injury. She attempted to return to work twice on modified duties, but was unable to continue working due to ongoing long Covid symptoms. The representative submitted that the documentation on file confirmed the consistency of the worker's symptoms and the efforts made to determine the cause of those symptoms.
The representative further noted that the worker contracted Covid-19 a second time in December 2021, which was not work-related, and acknowledged that this was a complicating factor with respect to the issue of ongoing benefits. The representative noted, and the worker confirmed, that she was on a return to work program at that time, working reduced hours and not her regular duties, and had not recovered from her first Covid when she contracted the second Covid.
In summary, the worker's representative submitted that the worker's continuous symptoms as demonstrated on file are a consequence of contracting Covid-19, and the worker is entitled to further benefits after October 26, 2021 as a result.
The employer did not participate in the appeal.
The issue before the panel is whether or not the worker is entitled to further benefits after October 26, 2021. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker had a further loss of earning capacity and/or required further medical aid beyond October 26, 2021 as a result of her November 2020 workplace accident and injury. The panel is able to make that finding, for the reasons that follow.
In response to questions from the panel, the worker's representative confirmed that what they were relying on as the compensable injury was post Covid-19 condition or long Covid, being a residual effect or consequence of contracting Covid initially. The representative confirmed that they were not relying on whether specific clinical diagnoses for conditions such as POTS or migraines had been met, but on the presence of the various diagnoses as a cluster of symptoms which were ongoing and related to the initial Covid infection.
The worker's representative referred to the October 6, 2021 consensus study from the WHO, which sets out a working clinical case definition of "post COVID-19 condition" as follows:
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.
Based on our review of the information which is before us, on file and as presented at the hearing, the panel is satisfied that the worker's history of symptoms appear to fall within the definition of post Covid condition or long Covid as noted above.
The panel finds that the worker was a credible witness who responded to questions at the hearing in a clear and forthright manner. The worker spoke about the history of her COVID-19 symptoms and her efforts to return to work. She stated that she has had a headache since her injury in November 2020, that it is there 24/7 and has never gone away. The worker noted other ongoing and continuing symptoms, including cognitive deficits, fatigue, palpitations, and anxiety, which were not there before her injury. The panel finds that the worker's evidence was consistent throughout the file and at the hearing.
The panel is further satisfied that there is medical information on file which supports that the worker experienced continued difficulties through to and beyond October 26, 2021 as the result of long Covid. The worker's family physician in January 2021 reported a change in diagnosis to "post headache; short term memory," and on February 24, 2021 to "post Covid effects." The treating cardiologist, on August 17, 2021, noted that the worker had reduced exercise tolerance and increased heart rate, which was not uncommon and that they saw post Covid-19 POTS syndrome-like symptoms in some patients. The treating neurologist on June 25, 2021 noted that the worker was Covid positive in November 2020 and that she had left temporal headache since that time and presented with a history of chronic migraine. In a February 7, 2022 report provided in advance of the hearing, another neurologist noted that the worker had "Post COVID syndrome that has caused chronic migraine headache."
The panel acknowledges the opinions provided by the WCB medical advisor, and his comments on October 19, 2021, that the worker's "…current symptoms (headaches) have not been objectively accounted for by the medical investigations undertaken to date," and on October 26, 2021, that "In the absence of objective anatomic or physiologic evidence, I am unable to establish a probable causative relationship between the symptoms reported and a previous diagnosis of acute COVID-19 infection on November 28, 2020."
The panel notes, however, that the medical advisor's conclusions appear 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. In the panel's view, the WCB medical advisor's comments highlight a need for the development of a consistent description and definition of a post Covid-19 condition or long Covid, 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, and 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 or an alternative diagnosis indicating the worker suffered from some other condition, the panel places weight on the reports from the worker's treating physicians.
As a result, the panel finds, on a balance of probabilities, that the worker had not recovered from the effects of the compensable injury as of October 26, 2021, and suffered a further loss of earning capacity and required further medical aid beyond that date as a result of her November 2020 workplace accident and injury. The panel therefore finds that the worker is entitled to further benefits after October 26, 2021, and returns the file to the WCB for further adjudication.
The worker's appeal is allowed.
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 15th day of August, 2022