The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was not entitled to wage loss benefits beyond June 9, 2021. A videoconference hearing was held on September 1, 2022 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after June 9, 2021.

Decision

The worker is entitled to wage loss benefits after June 9, 2021.

Background

The employer provided the WCB with an Employer's Accident Report on December 10, 2020, reporting the worker had sustained a respiratory injury due to a COVID-19 related exposure at work on October 23, 2020, which was reported on October 26, 2020. The worker submitted a Worker Incident Report on December 15, 2020, reporting she began to have symptoms of COVID-19 and to self-isolate on October 23, 2020. On October 25, 2020, a co-worker with whom she had close contact advised she had tested positive, after which the worker sought testing and was notified, on October 29, 2020, that she had tested positive for COVID-19. The worker advised that she had experienced "…severe COVID-19 symptoms" since then.

The worker attended her family physician on October 25, 2020, reporting fever, shortness of breath, loss of smell and taste, chest pain and fatigue. The physician noted symptoms of wheezing, hoarseness of voice, and runny nose, with a chest x-ray and lab work coming back normal. The physician noted the worker was positive for COVID-19 and provided a diagnosis of a COVID-19 infection. The physician further indicated that pursuant to the public health guidelines in place at the time, the worker could not return to work if she was symptomatic.

On December 16, 2020, the WCB contacted the worker to discuss the claim. The worker confirmed her belief she had contracted COVID-19 from a co-worker at work, with her symptoms first appearing on October 23, 2020. Her symptoms were similar to a cold at first, then turned into a fever, fatigue, breathing issues, tightness in her chest, and loss of taste and smell. The worker advised that she still had difficulty breathing just going up stairs, and felt pressure on the right side of her ribs. Her fever was gone but she still had no taste or smell and no energy. By email that same day, the worker provided the WCB with a copy of her positive COVID-19 test results and listed the symptoms she had been experiencing, including difficulty with memory/concentration.

On December 17, 2020, the WCB received further medical reports from a local urgent care facility which the worker attended on November 12, 2020, reporting shortness of breath. The report indicated that tests had been conducted at that time, including x-rays and blood tests, as well as a further COVID-19 test which was reported to be positive.

The worker continued attending for medical treatment, reporting ongoing symptoms of dry cough, fevers, chills, shortness of breath, fatigue, and loss of smell and taste. Medication was recommended to alleviate the worker's symptoms, including a bronchodilator, and it was recommended that she rest and remain off work until asymptomatic. At a follow-up appointment on December 17, 2020, the worker's family physician noted a diagnosis of post viral bronchitis and recommended continued use of bronchial medication and rest. On January 28, 2021, the worker's family physician recommended the worker could return to work on February 3, 2021 with reduced hours, starting with four-hour shifts and avoiding stairs. After discussion with the employer, the worker returned to work on that date, on a half-time basis, with sedentary duties.

On March 3, 2021, the worker spoke with the WCB and provided a status update. The worker stated she had seen a respirologist, who advised her to continue working four hour-shifts. The worker provided the WCB with a copy of a report relating to a February 11, 2021 appointment, in which the treating respirologist noted that the worker "…continues to have symptoms including fatigue, nasal congestion, cough, shortness of breath, and loss of taste/smell consistent with post-infectious symptoms" and recommended she continue to work half-days until her symptoms improve.

At a follow-up appointment on March 11, 2021, the respirologist noted the worker's ongoing difficulties with symptoms, including "fatigue, difficulty concentrating, and shortness of breath on exertion, which are consistent with prolonged post-infectious symptoms," and recommended the worker continue working half-days only, while also working on gradually increasing her exercise and work tolerance. On May 21, 2021, the treating respirologist noted the worker's cough and chest tightness had improved since her March appointment, that she had ongoing medical investigations, and that her ongoing symptoms were "…consistent with post-COVID syndrome."

On May 26, 2021, the worker's file was reviewed by a WCB medical advisor, who noted that the "natural history of acute mild to moderate COVID-19 illness remains poorly understood at this time…" The medical advisor reviewed the medical reports on file from the worker's treating healthcare providers and opined that "…the objective physical examination findings and investigations undertaken to date are not indicative of a specific medical diagnosis, in relation to [the worker's] currently reported symptoms." On June 3, 2021, the WCB advised the worker that they were unable to establish a causal relationship between her current reported difficulties and the October 23, 2020 workplace accident, and that she was therefore not entitled to wage loss benefits beyond June 9, 2021.

On July 8, 2021, the worker requested that Review Office reconsider the WCB's decision. The worker submitted that her treating healthcare providers supported her need for continued treatment and reduced hours at work, and that she continued to suffer from the symptoms related to her COVID-19 infection.

On August 31, 2021, Review Office determined that the worker was not entitled to wage loss benefits beyond June 9, 2021. Review Office agreed with the opinion of the WCB medical advisor and found that the available medical information did not support any underlying health concerns or that the worker's current symptoms were related to her compensable injury. Review Office therefore found that the worker was capable of resuming her full duties and did not have a loss of earning capacity beyond June 9, 2021. Review Office also acknowledged that this was a point in time decision based on the available medical information on the worker's file.

On December 10, 2021, the worker's representative requested that Review Office reconsider their earlier decision. A November 8, 2021 report from the worker's treating respirologist which was submitted with that request noted the worker had continued difficulties with fatigue, concentration and fragmented sleep, and despite normal breathing testing, continued to have a chronic cough and mild shortness of breath. The respirologist noted the worker was also being seen by a neurologist and an Ear, Nose and Throat (ENT) specialist, and the worker's loss of smell/taste were felt to be secondary to COVID infection and had a strong likelihood of being permanent. The respirologist recommended further assessment and management, and that the worker remain off work until that was completed.

On January 4, 2022, the WCB medical advisor reviewed the additional medical information, and opined that it did not "…establish an objective, specific cause and effect relationship between [the worker's] reported symptoms and a diagnosis of acute COVID-19 infection on October 25, 2020." A copy of the WCB medical advisor's opinion was provided to the parties on January 5, 2022 for their review.

On March 8, 2022, the worker's representative submitted reports from three treating neurologists, and the worker's treating respirologist, ENT specialist, family physician, and rehabilitation program, together with reports of an MRI of the brain performed June 7, 2021 and heart scan testing conducted December 13, 2021, and requested that Review Office reverse their previous decision. The representative submitted that the WCB had not conducted a thorough review of all the medical evidence from the worker's treating healthcare providers, all of whom agreed that the worker's symptom presentation was consistent with "long COVID." The representative further submitted that but for the worker contracting COVID-19, she would not have developed or continued to experience such symptoms. On March 10, 2022, the worker's representative also submitted a journal article in further support of their request for reconsideration.

On March 16, 2022, Review Office confirmed their previous decision. Review Office found the medical evidence did not establish a causal relationship between the worker's current reported difficulties and the workplace accident, and as such, there was no entitlement to wage loss benefits beyond June 9, 2021.

On April 4, 2022, the worker's representative filed an appeal with the Appeal Commission and a videoconference hearing was arranged.

Reasons

Applicable Legislation

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 39(2) of the Act states 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.

Worker's Position

The worker was represented by a worker advisor, and was accompanied by her spouse at the hearing. The worker's representative provided a written submission in advance of the hearing, and made an oral presentation to the panel, noting they were largely relying on their written submission, as well as their written submission to Review Office and the evidence on file and at the hearing.

The worker's position was that there is sufficient evidence to establish the worker had not recovered from her compensable condition by June 9, 2021; that she continued to suffer a loss of earning capacity after that as a result of her injury and should therefore be entitled to further wage loss benefits.

The worker's representative noted that the worker developed symptoms and tested positive for COVID-19 in October 2020. After an absence from work of a little more than three months, her healthcare providers approved a return to work at half-days, which began in February 2021 and continued through to June 2021. The representative submitted that the WCB's payment of partial wage loss benefits during that period of time indicated the WCB accepted the healthcare providers' opinions that the worker's medical status resulted in a loss of earning capacity.

It was submitted that in terminating the worker's wage loss benefits on June 9, 2021, the WCB relied on a purported absence or insufficiency of diagnostic or clinical findings. The representative argued that such a narrow view of the available evidence was inconsistent with WCB Policy 22.00, Decision Making, which requires that WCB decision-makers consider all the evidence, including the worker's reporting of symptoms. The representative submitted that the totality of the evidence overwhelmingly supported the worker remained injured from a post-COVID-19 illness well past June 9, 2021.

The worker's representative submitted that the available medical evidence provided a comprehensive summary of the worker's symptomatic and functional experiences leading up to and well past the benefit end date of June 9, 2021, with the consensus opinion of the treating healthcare providers being that the worker continued to experience the effects of a post COVID-19 illness.

The representative asked that the panel attach less weight to the opinions of the WCB medical advisor, than to those of the treating healthcare providers who had seen and assessed the worker on an ongoing basis. The representative submitted that the medical advisor not only disregarded the opinions of the treating healthcare providers because of absent or insufficient clinical findings, but his opinions were based on incomplete medical information, and did not address substantial additional medical reports that were submitted after March 11, 2021. It was submitted, based on those additional medical reports, in combination with those on file, that the worker's treating healthcare providers concurred that the worker's symptom presentation, including "brain fog", fatigue and challenges with memory, was consistent with the diagnosis of "long-COVID" or post-COVID syndrome.

It was further submitted that even if objective medical evidence or clinical findings were required to substantiate the presence of the worker's COVID-19 related symptoms, the February 11, 2022 cognitive assessment results from the treating neurologist, which showed deficits in digit span and immediate recall, provided such evidence. The representative noted that like the worker's other treating healthcare providers, the neurologist attributed the worker's fatigue and cognitive deficits to "post-COVID syndrome."

In conclusion, the worker's representative submitted that but for the worker contracting the COVID-19 virus, she would not have developed or continued to experience symptoms which were not present before her injury. The worker had not recovered from her post-COVID illness in June 2021 when the WCB ended her wage loss entitlement, and her appeal should be granted.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits after June 9, 2021. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker had a loss of earning capacity beyond June 9, 2021 as a result of her October 23, 2020 workplace incident and injury. The panel is able to make that finding, for the reasons that follow.

Based on our review of all of the information which is before us, on file and as presented at the hearing, the panel is satisfied that the history of the worker's symptoms appears to be consistent with post-COVID syndrome or long-COVID and that the worker had not fully recovered from that condition or her compensable injury as at June 9, 2021 when her wage loss benefit entitlement ended.

In response to questioning at the hearing, the worker described her job duties, which entailed assisting anyone who needed help, although she also worked directly with a group of students. The evidence shows that worker had been performing her duties for 17 years prior to the workplace incident. The worker stated that during that time she was fine and "was able to assist students to the best of my ability. I think I went above and beyond to make sure that the students I was working with are provided for," but that her struggles began when she went back after contracting COVID. The worker stated that when she went back to work she found everything around her overstimulating, she had a hard time focusing and struggled trying to absorb and process the information she was given, to break down and clarify instructions so the students could understand them. The panel notes that at the time her wage loss entitlement ended the worker was continuing to work half-days only.

The panel is satisfied that the medical information on file supports the worker experienced ongoing difficulties through to and beyond June 9, 2021 as a result of post-COVID syndrome. The worker's treating respirologist on February 11, 2021 noted the worker was being seen for post-COVID infection follow-up after a positive test on October 25, 2020 and continued to have symptoms including fatigue, nasal congestion, cough, shortness of breath, and loss of taste/smell consistent with post-infectious symptoms. On May 11, 2021, the worker's treating neurologist assessed the worker, noted multiple ongoing symptoms, including difficulty concentrating, short memory loss, and lack of energy despite working part-time, and diagnosed the worker with post-COVID-19 syndrome.

In a letter dated August 29, 2021, which was submitted in advance of the hearing, the worker's treating respirologist indicated the worker's respiratory symptoms were improving, though not back to baseline, but that more concerning for the worker's function was "ongoing issues with brain fog/reduced concentration, as well as excess fatigue. These are consistent with post-COVID syndrome..." At a virtual follow-up appointment on November 4, 2021, the treating neurologist noted that the worker's energy continued to be low, but her major issue was the brain fog, and indicated she would be referred for an objective cognitive assessment with another neurologist, noting that if that demonstrated objective evidence of cognitive impairment, the worker should appeal to the WCB.

The panel places weight on the February 16, 2022 report of this further treating neurologist who assessed the worker on February 11, 2022. In her report, the neurologist outlined the history of the presenting illness, noting that the worker continued to feel unwell for several weeks after October 23, 2020:

…but went back to work part-time in February 2021 and it was then that she noticed the most pronounced changes…She had quite significant "brain fog" and had a difficult time understanding the instructions that she was supposed to follow in order to help the children. She had difficulty focusing with any distractions or background noise. She felt a "disconnect" from what she knew she needed to do and what she was able to do and comprehend. Despite this, she finished the school year but had not returned to work this fall.

She continues to have a constellation of symptoms that have never fully recovered. From a cognitive perspective the most pronounced symptoms have to do with attention and executive functioning: She has difficulty following conversation, difficulty following television shows or movies, difficulty multitasking, poor organization and poor task sequencing. This is in contrast to her prior function where she describes herself as very organized and meticulous. On a bad day she also experiences word-finding difficulty and short-term memory lapses…

She has difficulty with tasks that previously would have been easy for her…

Her other symptoms include marked fatigue and limited exercise tolerance…

A cognitive assessment was performed, and was reported as showing a borderline score for a person of her age, with the neurologist noting that:

On cognitive testing she had a borderline score…with impairments in digit span as well as in immediate recall. The impairments in digit span likely represent difficulty in working memory. Her recall improved with cueing, suggesting more of a retrieval deficit. 

… 

Overall, I think her presentation is most related to a post COVID-19 syndrome. Although a borderline score, the cognitive deficits that she has on examination likely correspond with the cognitive profile in post COVID-19 syndrome in that they predominantly impact attention and working memory…

The panel acknowledges the comments and opinions provided by the WCB medical advisor on May 26, 2021 and January 4, 2022. The panel notes that the medical advisor's conclusions appear to be limited by the lack of diagnostic criteria or objectively-determined anatomic or physiologic abnormality, as opposed to a full assessment of whether the worker's ongoing symptoms were related to the original compensable injury. The panel notes that the WCB decision-making similarly appears to emphasize the lack of objective medical evidence to support ongoing compensability of the worker's symptoms or presentation, and to consider only clinical evidence instead of the totality of the medical and other evidence on file.

In the circumstances, and on a balance of probabilities, the panel finds that the worker had not recovered from the effects of the compensable injury as at June 9, 2021, and that she suffered a loss of earning capacity beyond that date as a result of her October 23, 2020 workplace incident and injury. The panel therefore finds that the worker is entitled to wage loss benefits after June 9, 2021, and returns the file to the WCB for further adjudication.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
R. Ripley, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 31st day of October, 2022