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 August 5, 2020. A teleconference hearing was held on June 17, 2021 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after August 5, 2020.

Decision

The worker is not entitled to benefits after August 5, 2020.

Background

On May 29, 2020, the worker filed a Worker Incident Report with the WCB reporting multiple injuries sustained in an accident at work that same day when they tripped and “went flying.” The worker reported that “My phone flew out of my pocket and my glasses flew. I fell on my left side – knee, hip, arm/shoulder but jarred on my right side as well, - neck, low back, right shoulder blade area and hit my left elbow.” The same day, the worker attended for medical treatment with their chiropractor reporting left hip pain, lower back pain, neck and thoracic pain, dizziness and severe headaches. The chiropractor indicated the worker had post-concussion symptoms after tripping over a table leg and falling forcefully, and noted decreased cervical range of motion, especially in left rotation, flexion and extension with severe pain and tenderness.

On June 9, 2020, the WCB contacted the worker to discuss their claim and advised the worker their claim was accepted. The worker advised that they continued to have symptoms of headache and nausea, but the dizziness was gone. The worker further advised they were attending an appointment with their chiropractor the following day for a follow-up.

The worker saw a family physician on June 23, 2020, reporting they received treatment from their chiropractor for headaches, dizziness, light and noise sensitivity, occasional irritability, moodiness and blurred vision, difficulty with articulating at times and being off balance. On examination, the physician noted a positive Rhombus test to the right and that rapid repetitive movement was “a bit awkward”. The physician noted a CT scan of the worker’s brain was pending.

On June 30, 2020 the worker indicated to the WCB that they were still experiencing bad headaches. On July 13, 2020, the worker advised they were still having difficulties with headaches, memory issues and their lower back and hip were sore. Further, the worker noted issues with their comprehension and articulating their thoughts.

On July 14, 2020, the WCB received a copy of the July 7 CT scan and angiogram on July 14, 2020. The CT scan report noted “There is no evidence of intracranial hemorrhage, mass affect, or infarction. No other intracranial abnormality is identified…”. The angiogram report noted “No evidence of intracranial abnormalities or vascular abnormalities involving intracranial or extracranial arteries.”

On July 20, 2020, a WCB medical advisor reviewed the worker’s file with respect to a request for referral to a concussion clinic. The WCB medical advisor provided the worker did not meet the WCB concussion protocol criteria required to support a diagnosis of a concussion in relation to the workplace accident, noting that the worker’s presentation of non-specific neck, mid-back and low back pain along with left hip greater trochanteric contusion did not meet the criteria for a diagnosis of a concussion as there was no report of a direct impact to the worker’s head. The advisor noted that the workplace accident may have caused a “…mild jarring of the head” but it would not have been of sufficient force to injure the worker’s brain. Further, the WCB medical advisor found the evidence on file at the time of the workplace accident did not note any symptoms of a head or brain injury, and while the initial chiropractor’s report noted post-concussion symptoms, the worker had not been diagnosed with a concussion and there was no mention of loss of consciousness, altered mental state, amnesia of the event and/or other focal neurological deficit. The medical advisor also noted that when the worker spoke to the WCB on June 9, 2020, they did not mention any symptoms of an acute brain injury and further, that the worker did not seek treatment from a physician until four weeks following the workplace accident, with the expectation the worker would have sought treatment sooner if there was concern of a brain injury.

On July 31, 2020, the WCB advised the worker that their entitlement to benefits would end on August 5, 2020 as the WCB had determined the worker’s diagnosis of a concussion was not acceptable.

The worker’s representative requested reconsideration of the WCB’s decision to Review Office on August 11, 2020. The representative noted the worker continued to experience post-concussion symptoms, such as dizziness and headaches in addition to other cognitive issues of memory, concentration and ability to recall information and requested Review Office reconsider the WCB’s decision to end the worker’s entitlement to benefits. On October 7, 2020, the employer’s representative provided a submission in support of the WCB’s decision, a copy of which was provided to the worker on October 8, 2020. On October 19, 2020, the worker’s representative provided Review Office with a further submission.

Review Office determined on October 22, 2020 that the worker was not entitled to benefits after August 5, 2020. Review Office agreed with and accepted the opinions provided by the WCB medical advisor and chiropractor and found that the workplace accident did not result in the worker sustaining a concussion. Further, Review Office found that the diagnoses arising out of the workplace accident were non-specific back pain and a left hip contusion which resolved within a short period of time and did not structurally alter the worker’s spine. It also found that the worker received sufficient chiropractic treatment for those injuries and as such, the worker did not have a loss of earning capacity after August 5, 2020 and was not entitled to further benefits.

The worker’s representative filed an appeal with the Appeal Commission on January 25, 2021. A teleconference hearing was arranged and held on June 17, 2021. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On August 12, 2022, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act, regulations under the Act and the policies established by the WCB's Board of Directors.

A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Section 4(2) provides that a worker injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid because of an accident, compensation is payable under s 37 of the Act. Section 39(2) of the Act sets out that wage loss benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years. Section 27 allows the WCB to provide a worker with such medical aid as the board considers necessary to cure or provide relief from an injury resulting from an accident.

Worker’s Position

The worker appeared in the hearing accompanied by their spouse, who made an oral submission on behalf of the worker and provided a further written submission on July 11, 2022 in response to the additional information obtained by the appeal panel. The worker also provided testimony through answers to questions posed by the appeal panel.

The worker’s position as outlined by their spouse is that the worker sustained a concussion on May 29, 2020 when they tripped, flew 10 feet through the air and fell to the floor landing on their side. Although the worker did not sustain any direct traumatic injury to their head, they did sustain a brain injury as a result of their head being “whipped back and forth” and this resulted in the subsequently reported symptoms of headache, nausea, confusion, weak memory and disorientation which the treating chiropractor described as post-concussion symptoms on the date of injury. As a direct result of the continuation of these symptoms beyond the WCB’s termination of benefits, the worker did not return to work and required further chiropractic care. Therefore, the worker should be entitled to benefits after August 5, 2020.

In their submission, the worker’s spouse outlined their disagreement with the decision-making of the WCB in this claim as well as their disagreement with the comments made by the employer’s advocate.

The worker’s spouse pointed out to the panel that the materials from the Mayo Clinic website, submitted to the WCB claim file, confirm that direct impact to the head is not required for a diagnosis of concussion to be made. Further, they noted the evidence in the WCB claim file documenting the worker’s report of symptoms of “difficulty forming sentences and appears emotional” (June 30, 2020), “textbook symptoms, the jaw and teeth hurt, [the worker] received dental treatment under the claim…but can’t tolerate light, poor concentration and…forgetting words” (July 6, 2020), “memory issues, issues with comprehension and articulating thoughts” (July 13, 2020), “memory issues, issues with comprehension and articulating thoughts” (July 16, 2020), “having a hard time concentrating” (July 29, 2020), and “experiencing balance issues, not able to concentrate and is having cognitive issues” (August 11, 2020). As well, the treating physician noted on July 7, 2020 that the worker was experiencing “trouble articulating and loss of balance”. These statements are evidence that the worker did have an altered mental state following the injury.

The worker’s spouse also disputed the statements in the WCB claim file that the worker had chronic neck issues, noting that prior to the accident, the worker attended for chiropractic care for “maintenance” rather than for any specific concern or injury.

With respect to a return to work after the injury, the worker testified in response to questions from the panel that they have not returned to work because they did not feel it was safe for their clients given the ongoing headache and nausea symptoms. The worker testified:

“I did not want to leave work. I did not want to retire, but I couldn’t look after my patients at the state that we were in. So headache, oh, definitely I’m have, I’ve had to actually, insomnia, in my sleep I’ve had a lot of sleep disturbances, I never did before. They are getting better, thank goodness. You know everything is getting better, but it’s taken a long time.”

The worker testified to seeing a chiropractor for 20 plus years for “maintenance” and noted that they continued to seek regular chiropractic care after the WCB discontinued its provision of this benefit. The worker explained to the panel that they sought treatment from their family physician on noting that their symptoms were not improving and at that appointment on June 23, 2020, the physician conducted a number of neurological tests and as a result, ordered the CT scan which took place on July 7, 2020.

In sum, the worker’s position is that they are entitled to benefits after August 5, 2020 as the evidence confirms the worker sustained a concussion as a result of the workplace injury of May 29, 2020 and continued to experience symptoms related to that concussion beyond August 5, 2020.

Employer’s Position

The employer was represented in the hearing by an advocate who made an oral submission on behalf of the employer and provided a further written submission dated July 25, 2022 in response to the additional information obtained by the hearing panel. The employer’s advocate was accompanied by an occupational health staff member of the employer. The occupational health staff person provided testimony on behalf of the employer through providing answers to questions posed by members of the appeal panel.

The employer’s position is that the worker is not entitled to benefits after August 5, 2020 as the medical evidence shows that by the end of July 2020, the worker was recovered from the effects of the workplace injury and returned to their pre-accident baseline in terms of prior back and neck condition. Further, the employer takes the view that there is no evidence that the worker sustained a concussion to warrant the provision of benefits after August 5, 2020 and accepts the WCB’s determination that the compensable injuries were to the neck, mid and low back and the left hip with a contusion.

The employer’s advocate noted that the evidence from the worker’s treating chiropractor confirms that the worker regularly sought chiropractic treatment prior to the workplace injury, including treatment as recently as one week before the injury occurred. The advocate also noted that on the day of the injury, the chiropractor indicated the worker had post-concussion symptoms although the injury had just occurred, and the worker had not been diagnosed with concussion. The worker reported headache and dizziness at that time, and the chiropractor removed the worker from work for almost eight weeks, during which time the WCB authorized chiropractic care to July 24, 2020. The advocate noted however that the worker did not see a doctor for nearly one month and queried why, if the worker believed they had a concussion, they would not have sought immediate attention from their physician. Further, the July 29, 2020 chiropractor progress report indicates that subjective complaints had decreased, noted only intermittent dizziness and headaches, and recorded findings of increased cervical range of motion in all directions, point tenderness to the left trochanter and muscle hypertonicity of the right suboccipital. Although the chiropractor requested an extension of treatment the WCB denied the request as there was limited objective information to support ongoing therapy and sufficient therapy had been provided for the reported non-specific low back, mid back, neck and left hip pain.

The employer’s advocate noted that when the worker’s WCB claim file was reviewed by a WCB medical advisor on July 20, 2020, the medical advisor concluded that the injuries sustained in the accident were non-specific neck, mid back and low back pain with no evidence of a structural injury. The advocate noted that for such soft tissue injuries, a typical recovery period is six to eight weeks and that for a left hip contusion with possible traumatic bursitis, a normal recovery period would be a few weeks.

The advocate also noted that the WCB medical advisor commented on the post-concussion symptoms reported by the treating chiropractor and indicated that the worker’s presentation did not meet the WCB criteria for a concussion diagnosis. The medical advisor confirmed there was no direct impact to the head and while there could have been mild jarring, this was insufficient force to cause a brain injury. Further, the worker’s injury report to the WCB contains no mention of immediate disruption of brain functioning, nor any head or brain injury. The worker also did not mention any symptoms consistent with a brain injury when in discussion with the WCB adjudicator on June 9, 2020. Furthermore, symptoms of headache and dizziness would not be considered post-concussion because a concussion diagnosis was never made. Even the worker’s treating physician did not diagnose concussion. The advocate submitted that the panel should apply the criteria set out in the WCB concussion protocol, noting that post-accident symptoms such as headaches, dizziness, irritability, fatigue and/or poor concentration, including when identified soon after an injury, can be used to support the diagnosis of a concussion, but cannot be used to make the diagnosis of concussion in the absence of specific other criteria.

The employer’s advocate submitted that the worker was capable of light duties as of August 5, 2020, as confirmed by the treating chiropractor, and that the employer could have accommodated a return to work on light duties. The advocate confirmed that on August 11, 2020 the worker advised the employer of their intention to retire and did not return to work after that time.

The occupational health staff member confirmed to the panel that on June 24, 2020 the worker visited the Occupational Health department and spoke with them. At the time, the worker indicated they had just come from their family doctor’s appointment and had been referred for a CT. The worker indicated their primary concern at that time was their cognitive functioning, stating they were forgetting words and had poor concentration; however, the occupational health staff member observed that the worker presented as well, was ambulating without difficulty, and engaged in spontaneous conversation, though the worker forgot, or couldn’t think of just one word during the conversation of approximately 10 minutes.

In sum, the employer’s position is that as a result of the May 29, 2020 accident, the worker sustained injuries of non-specific back pain and left hip contusion, and by the end of July, 2020, the worker was recovered to their baseline, pre-accident condition and was capable of returning to work. As there is no medical evidence that the worker sustained a concussion or developed post-concussion syndrome, or that they continued to suffer the effects of their back and hip injuries, the appeal should be dismissed.

Analysis

The issue on appeal is whether the worker is entitled to benefits after August 5, 2020. In order to grant the worker’s appeal, the panel would have to determine that as of August 5, 2020, the worker continued to require medical aid or to experience a loss of earning capacity related to the compensable workplace injury of May 29, 2020. As outlined in the reasons that follow, the panel was not able to make such a determination and therefore the worker’s appeal is denied.

The panel considered the evidence as to the nature of the injury sustained in the workplace accident. The worker’s evidence is that they tripped on a table leg and flew some 10 feet across the room before landing on their left side and hip. In the process, the worker described that their glasses and cell phone went flying. The worker did not describe any direct impact injury to their head, although noting subsequent symptoms of headache and dizziness.

The treating chiropractor, in their first report to the WCB, provided on July 6, 2020 indicates the worker’s report on the date of injury of left hip pain, lower back pain, neck and thoracic pain, dizziness and severe headaches which are noted as “post concussion symptoms”. Of note, the chiropractor indicated at that time that the worker could return to work as early as July 20, 2020. The chiropractor’s chart notes for the date of injury indicate severe right sacroiliac joint pain, decreased lumbar and cervical spine range of motion, headache, neck and occipital pain. The chiropractor’s chart notes for treatments through June and July indicate ongoing complaints of occipital headache. On July 2, 2020 the chiropractor noted an increase in symptoms “due to stress following conversation with WCB case worker”. By August 5, 2020 the chart notes indicate “Good improvement decrease in headaches”. In the Chiropractor Progress Report of July 29, 2020, the chiropractor reported increasing cervical active range of motion in all ranges, point tenderness at the left greater trochanter and right occipital region and muscle hypertonicity at the right suboccipital region. The chiropractor noted ongoing gradual improvement of symptoms and objective findings and noted that the worker was “capable of light duties” but not their regular duties. The panel noted that during this period the chiropractor continued treating not only the worker’s neck, back and hip pain but also their wrists, feet and knees, which were not injured in the compensable accident.

The worker’s treating physician assessed the worker on June 23, 2020, noting multiple areas of injury and a diagnosis of “headaches/labyrinthine dysfunction.” As a result of the finding that the worker fell to the right with Rhomberg testing and noting that certain movements were “a bit awkward” the physician ordered a brain CT scan and angiogram. The diagnostic imaging from July 7, 2020 indicated no abnormalities. The panel noted that despite the worker’s submission that they continued to experience post-concussion symptoms, the worker did not follow up further with the physician related to the workplace injury.

The panel also considered the opinions provided by the WCB medical and chiropractic advisors. A WCB medical advisor reviewed the file on July 20, 2020 and noted that the file information and the worker’s presentation did not support a diagnosis of concussion in relation to the compensable injury. While there was no evidence of impact to the head, there may have been a “mild jarring” but this “would not have been of sufficient force to injure the brain.” The medical advisor further commented on the chiropractor’s note of post-concussion symptoms, stating “That is a condition that follows a concussion. Since [the worker] had not yet been [diagnosed] with a concussion, symptoms of headache and dizziness would not be considered post-concussion” and further noted that the treating physician also did not provide a diagnosis of concussion or record any immediate symptoms from the date of accident that would support such a diagnosis. When the WCB chiropractic advisor reviewed the file on August 11, 2020 they determined the worker had received “sufficient chiropractic therapy for the reported non-specific lower back, mid back and neck pain and the reported left trochanteric pain” and recommended that the WCB not fund any further treatment related to the compensable injury.

With respect to the question of compensable diagnosis, the panel finds that the evidence does not support the worker’s position that they sustained a concussion as a result of the workplace accident, nor that as a result of that injury, the worker continued to experience post-concussion symptoms beyond August 5, 2020 and indeed, to the date of the hearing of this appeal, as submitted. There is no evidence before the panel to confirm a diagnosis of concussion by any medical professional, arising out of the worker’s trip and fall injury on May 29, 2020. Although the treating chiropractor commented on the presence of post-concussion symptoms that same day, there is no diagnosis of a concussion or evidence from upon which such a diagnosis might be made. We further note that when the worker sought care from their family physician on June 23, 2020, the physician did not make or report a diagnosis of either concussion or post-concussive symptoms. We also note that when the WCB medical advisor reviewed this file on July 20, 2020 in response to a query as to whether a referral should be made to a concussion clinic, they determined, having reference to all the available file information and medical reporting, that the evidence did not support a diagnosis of concussion.

The panel is satisfied that the evidence does not support a finding that the worker sustained any injury arising from the workplace accident of May 29, 2020 other than soft tissue injuries to their neck and back, diagnosed as non-specific neck, mid-back, and low back pain along with left hip greater trochanteric contusion. The evidence further confirms that the worker was sufficiently recovered from these injuries by the end of July 2020 such that the treating chiropractor agreed the worker could return to work on modified, light duties which the employer has confirmed it could accommodate. The worker did not return to work after August 5, 2020 and notified the employer just 6 days later of their intention to retire, which retirement took effect in September 2020. On the basis of the evidence before us the panel is satisfied that any loss of earning capacity sustained by the worker after August 5, 2020 therefore is not related to the compensable workplace injury.

The panel further accepts and relies upon the opinion of the WCB medical advisor of July 20, 2020 that the worker did not require additional medical treatment for a head injury arising from the compensable injuries beyond that already provided at that time as well as the August 11, 2020 opinion of the WCB chiropractic advisor that no further chiropractic treatment was needed beyond that provided.

Therefore, on the basis of the evidence before us and applying the standard of a balance of probabilities, the panel is satisfied that there is no entitlement to benefits after August 5, 2020 arising out of the May 29, 2020 compensable workplace injury. The worker’s claim is denied.

Panel Members

K. Dyck, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 26th day of August, 2022