The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that there is no entitlement to wage loss and medical aid benefits beyond May 10, 2022. A hearing was held on December 7, 2022 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after May 10, 2022.

Decision

The worker is entitled to wage loss and medical aid benefits after May 10, 2022.

Background

An Employer's Incident Report was provided to the WCB on July 13, 2021, reporting the worker injured her left hand/arm, the left side of her face and her knees in an incident at work on July 8, 2021. The employer noted the worker was performing her regular duties when she slipped/tripped and fell. The worker had a cup in her hand when she fell and attempted to use her hands and arms to break her fall and protect her face/head area. Her glasses broke and she was helped up from the floor and provided with a seat and an ice pack.

The worker attended a sports medicine clinic walk-in clinic on July 8, 2021, where she reported she tripped/stumbled at work and fell on her face. She reported no loss of consciousness, a bit of a headache that was slowly worsening, nausea, difficulty remembering and slowed mental processing. It was noted that she also had scraped knees and pain to her left third finger. The treating sports medicine physician noted the worker had "longstanding dizziness", queried vertigo, and noted that a previously arranged appointment with an Ear, Nose and Throat (ENT) specialist, vestibular testing, and a CT scan were pending.

On examination, the attending sports medicine physician recorded the worker had a "large developing hematoma over left cheek", was conversing appropriately, and had pupils alert and reactive and normal reflexes. The physician noted that some testing was slow or delayed, with several attempts being required, and that there was tenderness and bruising to the worker's left third finger, with full extension and flexion. X-rays taken of the worker's facial bones and finger indicated no fractures. The physician diagnosed the worker with "Facial contusion, likely concussion – unknown baseline given vertigo/poor balance, headache/nausea, delayed cognition would support" and recommended she remain off work for two weeks and follow-up with her usual sports medicine physician.

The worker saw her usual sports medicine physician on July 15, 2021, reporting overall improvement, but complaining of occasional headache, some fatigue, and some eye strain with prolonged screen time or reading. The worker reported that her finger pain was improving, and she had no major neck pain, arm numbness, nausea or vomiting. It was noted that she had longer-standing vertigo complaints, and had upcoming vestibular testing. The physician noted normal eye movements, resolving bruising on the worker's face, mild tenderness, no dental changes or pain with jaw clench. A diagnosis of resolving facial contusion, improving concussion, and resolving finger contusion was provided. The physician recommended therapy and that the worker start a gradual return to work on July 19, 2021, working every other day for half a day.

In a discussion with the WCB on July 16, 2021, the worker confirmed she tripped over a slightly raised join on the floor at work and fell, hitting her left ear and the left side of her face on the ground. The worker noted she was holding a cup in her left hand and landed with the cup under her cheek, and her eyeglasses broke when she fell. The worker advised that her head hurt a lot after the fall and the left side of her face swelled up right away. The worker said she was unsure how long she was on the floor, and others helped her up once she was able to move. She noted that the left side of her face was currently still a little swollen, she had a black mark under her left eye and cheek, her left middle finger was still sore, and she was getting bad headaches, which were improving. The worker's claim was accepted and payment of benefits commenced.

At a follow-up appointment with her sports medicine physician on July 29, 2021, the worker reported ongoing complaints with pain to the upper left area of her face, and ongoing headaches made worse with prolonged computer use and bright lights, some difficulty with memory, and feeling "off." On examination, the physician noted tenderness and some swelling still over the "…zygomatic arch/upper maxillary region" and provided a diagnosis of a facial contusion and concussion.

On August 11, 2021, the worker's file was reviewed by a WCB sports medicine consultant with respect to head trauma protocol, and the consultant noted there was "…no role for concussion clinic…" at this time as the worker's overall condition was improving and she was under the care of a sports medicine physician.

On August 31, 2021, the worker attended an initial physiotherapy assessment. The physiotherapist noted the worker's complaints of headaches, nausea, dizziness, and difficulties with memory and cognition. Following the assessment, the physiotherapist diagnosed the worker with "Persistent Post-concussion Symptoms."

At a September 22, 2021 follow-up appointment with her sports medicine physician, the worker reported "overall unchanged" symptoms, with slightly reduced facial pain and headache intensity, and ongoing issues with photophobia and difficulty with remembering and forgetfulness, and the physician noted the worker appeared "teary and distraught." The physician again provided a diagnosis of a facial contusion and concussion, and queried early depressive features. The physician referred the worker to a neurologist for further testing. At an October 1, 2021 virtual appointment, the sports medicine physician placed the worker off work for two weeks.

On October 13, 2021, the worker was seen by a neurosurgeon and clinical director of a concussion program. The worker reported continued difficulties with her memory, constant bifrontal headaches associated with nausea, some left-sided facial pain and sensory changes to the left side of her face. Following his examination of the worker, the neurosurgeon diagnosed her with "persistent post-concussion symptoms and facial pain," and referred her to a neuropsychologist for formal neuropsychological testing. On October 19, 2021, the worker's sports medicine physician reviewed the neurosurgeon's report with the worker and recommended she be off work for six weeks.

On November 8, 2021, the worker's file was reviewed by the WCB sports medicine consultant, who opined that the worker's diagnosis as related to the July 8, 2021 workplace accident was a concussion, facial contusion, and left third finger contusion. The consultant opined that the clinical evidence did not support total disability, and the only medical restriction for a concussion diagnosis was to avoid activities that could pose a significant risk of a blow to the head. The consultant noted that it appeared the worker's job duties were sedentary in nature and opined that there would be no contraindication to that work. The consultant further noted that most concussions recover in one to two weeks, but that recovery is "…variable and unpredictable at this stage," and recommended further review of the worker's file after the neuropsychological examination and a recommended MRI had been completed.

The worker underwent the MRI of her brain on November 30, 2021. The MRI report indicated "No remote infarct. No mass or mass effect. No extra-axial collection or hydrocephalus. No acute process." The worker was seen by the treating neurosurgeon on December 6, 2021 and by her sports medicine physician on December 7, 2021, both of whom noted no acute findings on the MRI and recommended waiting for the results of the neuropsychological testing scheduled for January 2022.

On February 14, 2022, the worker's treating neuropsychologist provided a report to the WCB. The neuropsychologist noted the worker had undergone neuropsychological testing on January 13, 14 and 21, 2022, and a feedback session was held with the worker on February 14, 2022. It was noted that the worker reported "…persistent headache pain with associated nausea, fatigue, concentration difficulty, and occasional vomiting," and identified physiotherapy and bright lights as triggers. The worker also reported other symptoms including neck tension, altered sensation in her left cheek and intermittent dizziness and imbalance. After evaluating the testing, the neuropsychologist reported that the worker's "…neuropsychological profile was deemed to underestimate her true neurocognitive abilities and to represent a minimal level of function" and opined that her psychological functioning met the criteria for a diagnosis of somatic symptom disorder.

On February 17, 2022, the WCB sports medicine consultant reviewed the worker's file and recommended the file and the neuropsychologist's report be reviewed by a WCB neuropsychologist consultant. The sports medicine consultant opined that in the interim, the worker's recovery was not progressing well, as the January 31, 2022 report from her sports medicine physician recommended a further four weeks off work. The consultant noted, however, that testing appeared to be largely based on reporting by the worker and the current clinical findings did not support the worker was totally disabled from work.

On March 17, 2022, a WCB psychiatric consultant reviewed the worker's file. The consultant noted there was no psychiatric diagnosis on file accounted for by the workplace incident. The consultant opined that while the neuropsychologist provided the diagnosis of somatic symptom disorder, the criteria for such a diagnosis had not been met. The consultant thus noted that the neuropsychological testing did not show any memory impairment for the worker, and the report of symptoms on file did not show excessive thoughts, feelings or behaviours related to somatic symptoms or associated health concerns. Accordingly, the consultant opined that the worker did not require further treatment related to such a diagnosis. The consultant further noted the worker had a pre-existing longstanding history of dizziness which had not responded to treatment, and that this might explain the worker's tendency to over-reporting somatic symptoms as documented by the assessing neuropsychologist.

On May 3, 2022, the WCB advised the worker that they had determined she had recovered from the July 8, 2021 workplace accident and her entitlement to wage loss and medical aid benefits would end as of May 10, 2022.

On May 24, 2022, the worker's union representative requested that Review Office reconsider the WCB's decision. The representative submitted that the worker's treating healthcare providers supported the worker had not recovered from the effects of her workplace accident and compensable injury, and continued to suffer ongoing symptoms and restrictions as a direct result of her injury, and was therefore entitled to further benefits. On June 24, 2022, the employer provided a submission in support of the WCB's decision.

On July 19, 2022, Review Office determined that there was no entitlement to medical aid and wage loss benefits beyond May 10, 2022. Review Office acknowledged the report from the neuropsychologist, but stated that they preferred and placed weight on the opinion of the WCB psychiatric consultant. Review Office acknowledged the worker had various complaints and noted she had a history of "longstanding vertigo/imbalance." Review Office found that they were unable to account for the worker's current difficulties and the diagnosis of somatic symptom disorder in relation to the July 8, 2021 workplace accident. Review Office therefore concluded that the worker did not require further medical treatment or have a further loss of earning capacity.

On July 26, 2022, the worker's union representative appealed the Review Office decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation and Policy

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.

WCB Policy 44.10.20.10, Pre-existing Conditions (the "Policy"), addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Policy is stated, in part, as follows:

The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

A "pre-existing condition" is defined in the Policy as "…a medical condition that existed prior to the compensable injury."

Worker's Position

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 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 is entitled to wage loss and medical aid benefits beyond May 10, 2022 as the available evidence supports she continued to have disabling symptoms and significant restrictions which were causally related to the compensable head injury she sustained when she fell at work on July 8, 2021.

The worker's representative submitted that the evidence confirms the worker tripped, fell and struck her head at work on July 2021, and that there is consensus from the treating healthcare providers and the WCB healthcare consultants that she suffered a concussion as a result. The representative further submitted that the worker did not improve as expected, but she experienced persistent symptoms, most notably headache and issues with her memory and concentration. The treating sports medicine physician reported these symptoms were consistent with post concussion syndrome, and referred her to a neurosurgeon/concussion specialist, who confirmed the worker was suffering from post-concussion syndrome. The neurosurgeon also referred her to a neuropsychologist who did testing and provided a new diagnosis of somatic symptom disorder.

The worker's representative submitted that the evidence supports the diagnosis of somatic symptom disorder was a consequence of the ongoing effects of the worker's compensable brain injury. The representative noted that while the WCB psychiatric consultant determined the diagnostic criteria for such a diagnosis had not been met as it was unclear what somatic symptom was distressing to the worker, the evidence on file showed the worker continually struggled with headaches, difficulties with headaches and with memory and concentration, and the neuropsychologist wrote that "Memory lapses (ranging in duration from a few minutes to 15 minutes) were identified as her most troubling symptom." The representative further submitted that the neuropsychologist's report and reported results confirmed the worker had measurable deficits in her memory, with many of the results falling in the low average, borderline and impaired ranges.

The worker's representative submitted that while the WCB psychiatric consultant asserted that the worker's symptoms were likely related to longstanding dizziness, there was a lack of evidence to support that the worker was distressed or impaired by such dizziness or that it was responsible for the development of the somatic symptom disorder, and the consultant's assertion in this regard was purely speculative. The representative referred to two additional reports from the treating neurologist and the treating neuropsychologist, respectively, which were provided in advance of the hearing and further countered the WCB psychiatric consultant's opinion with respect to a pre-existing condition and the interpretation of the neuropsychologist's assessment of the worker.

The worker's representative asked that the panel place significant weight on the opinions of the worker's treating healthcare providers, in particular those of her treating neurosurgeon and treating neuropsychologist, and acknowledge that the worker continues to suffer the effects of her workplace accident.

The representative submitted that although the WCB psychiatric consultant seemed to take the position that the diagnosis of somatic symptom disorder replaced the worker's post concussion syndrome, it was more likely in their view that the worker's persistent difficulties were due to the blending of cognitive and physical injures which were, and continued to be, interrelated.

In conclusion, it was submitted that the available evidence supports the worker's ongoing symptoms and restrictions are the direct result of her persistent post-concussion syndrome, attributable to the related diagnosis of somatic symptom disorder, or a combination of these two interrelated diagnoses, and the worker's appeal should be accepted.

Employer's Position

The employer was represented by its WCB Coordinator, who made a submission at the hearing and responded to questions from the panel.

The employer's position was that based on the evidence, the worker has no further need for medical treatment or ongoing loss of earning capacity in relation to the compensable injuries she sustained as a result of her July 8, 2021 workplace accident, and her appeal should be dismissed.

The employer's representative submitted that the worker had recovered from her compensable injury of a concussion by February 2022 when a new medical condition of somatic symptom disorder was diagnosed. The representative submitted that the worker's current difficulties and diagnosis of somatic symptom disorder were not accounted for as a result of the July 8, 2021 workplace accident. The representative argued that this was supported by the March 17, 2022 opinion of the WCB psychiatric consultant, who stated that there was no psychiatric diagnosis on file accounted for by the workplace accident. With respect to the diagnosis of somatic symptom disorder as assessed by the treating neuropsychologist, the WCB psychiatric consultant opined that the criteria for this diagnosis were not met. The consultant further noted that it appeared the worker had a pre-existing longstanding history of dizziness, a subjective complaint which had not responded to treatment, and that a history of medically unexplained somatic symptoms prior to the workplace accident might explain the tendency to over-reporting somatic symptoms as document by the neuropsychologist.

The employer's representative also submitted that the evidence on file confirms the existence of a pre-existing condition of vertigo and dizziness. It was noted that several medical reports on file refer to the worker's longstanding history of vertigo, imbalance and/or dizziness.

The employer's representative further submitted that the information on file confirms that as of November 8, 2021, the worker was capable of participating in sedentary duties that did not pose a risk of further head injury. He noted that the worker's ability to perform these sedentary duties was not only outlined by the WCB medical advisor in her November 8, 2021 medical opinion, but also confirmed in her January 24 and February 15, 2022 opinions.

In conclusion, the employer's representative submitted that based on the evidence, the worker did not have a further need for medical treatment or ongoing loss of earning capacity beyond May 10, 2022 in relation to the compensable injuries she sustained as a result of her July 8, 2021 workplace accident, and Review Office's decision should therefore be upheld.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss and medical aid benefits after May 10, 2022. 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 and/or required medical aid beyond May 10, 2022 as a result of her June 8, 2021 workplace accident. The panel is able to make that finding, for the reasons that follow.

The panel is satisfied, based on the available medical evidence, that as at May 10, 2022 the worker had not recovered from her compensable injury, which was accepted as a concussion. The panel finds that the evidence supports that the worker continued to struggle with the effects of the workplace accident, including headaches, photophobia and cognitive difficulties.

The panel is satisfied that the worker's symptoms were generally consistent throughout and have not resolved. In her evidence, the worker indicated that she continues to suffer from headaches, not so much in the morning, but worse as the day goes on and into the evening. The worker described how her head continues to feel different and bigger than before her injury, and her face feels asymmetrical. The worker indicated that she continues to experience problems with lights, noting this was worse when she returned to work for a short period of time after her injury, as there are no windows where she was working and the lights were much brighter than at home. The worker indicated that she continued to experience memory loss and confusion, and her last episode of memory loss was about a week before the hearing, when a family member had noticed the stove was on, and the worker did not know or remember that she had gone to the kitchen and put it on. The worker noted she could not say if her memory loss was worse or better now, only that she did not have such episodes before the workplace accident.

While the WCB appears to have determined that the worker's concussion or post concussion symptoms ended when she was diagnosed with somatic symptom disorder, the panel is not satisfied that the evidence supports such a conclusion. At that time, the worker had been seen by the treating neurologist, who diagnosed her with post concussion syndrome, then referred her to the treating neuropsychologist for an assessment with respect to her cognitive abilities or difficulties. The panel is satisfied that the subsequent assessment by the neuropsychologist was not intended to, and did not assess the worker's physical symptoms or difficulties, such as headaches and light sensitivity. 

The panel places weight on the reports provided by the worker's treating neuropsychologist, who assessed the worker in January/February 2022, and accepts her diagnosis of somatic symptom disorder as being causally related to the worker's July 8, 2021 workplace accident and injury.

In a second report dated November 25, 2022, written in response to questions posed by the worker's representative and provided in advance of the hearing, the treating neuropsychologist confirmed that:

In my opinion and on the balance of probabilities, [the worker's] Somatic Symptom Disorder is related to her workplace injury and diagnosis of post-concussive symptoms. Apart from a longstanding history of vertigo/imbalance, [the worker's] medical history is unremarkable. Neither her self-report nor her medical record was indicative of any premorbid mental health condition that would account for her presentation.

The treating neuropsychologist further countered the conclusion by the WCB psychiatric consultant that the criteria for Somatic Symptom Disorder were not met as a specific somatic symptom was not identified and memory impairment was not identified on neurocognitive testing, stating:

The Diagnostic and Statistical Manual of Mental disorders – Fifth Edition (DSM-5…) states that individuals with somatic symptom disorder typically have multiple, current, somatic symptoms that are distressing or result in significant disruption of daily life (p. 316). Medical records document increased psychological distress and symptom report following the workplace injury. By October 5, 2021, [the worker] was said to be too stressed and feeling unwell to go for walks. During the neuropsychological evaluation, [the worker] reported several somatic symptoms including cognitive difficulties, headache pain (with associated nausea, fatigue, concentration difficulty, and occasional vomiting), neck tension, altered sensation in her left cheek, and intermittent dizziness and imbalance. On neurocognitive testing, low scores on memory tests (an [sic] many other neuropsychological measures) were deemed to reflect her subjective symptom severity rather than her actual cognitive abilities. Her behavioral presentation across the intake, testing and feedback sessions was suggestive of significant preoccupation with her physical health, which is a primary feature of Somatic Symptom Disorder. As noted in the DSM-5, the degree of impairment is more marked than would be expected from the physical illness alone (p.315).

The neuropsychologist further opined that there was no evidence of a pre-existing condition that would account for the worker's presentation.

The panel notes that in a further report dated September 13, 2022 which was also provided in advance of the hearing, the treating neurologist also stated:

According to the information I collected from her, [the worker] had no history of pre-existing medical conditions that would contribute to her presenting and persistent symptoms. Therefore, in my opinion, her symptoms were likely caused by the head injury she sustained at work but could have been impacted by a subsequent diagnosis of Somatic Symptom Disorder.

The panel acknowledges the opinion of the WCB psychiatric consultant but is unable to accord it much weight. Among other things, as regards the issue of a pre-existing condition as relied upon in that report, the panel is satisfied that the evidence does not support that vertigo contributed to or accounted for the worker's symptoms. The panel notes that in response to questions at the hearing, the worker said she had vertigo two or three years prior to the accident, and it was entirely different. She described that vertigo as a "spinning," where she had to hold onto something, because everything was turning. Her husband took her to emergency, and "they said 'You have the vertigo' because I had bad cold or whatever." The worker said that what she feels now is not related to any dizziness, nor has she had dizziness since her workplace accident. Rather, she said that since the accident, her head has felt "all the time different…bigger head. I don't know how to explain…but it's different…it's not my head…it's feel confusing. It's feel differently."

In the circumstances, and based on our review of the evidence which is before us, the panel is not satisfied that the diagnosis of somatic symptom disorder replaced the diagnosis of post concussion syndrome, and finds on a balance of probabilities that the worker continued to suffer from a concussion/post-concussion syndrome and from a somatic symptom disorder as at May 10, 2022.

The panel is therefore satisfied that the worker is entitled to medical aid and wage loss benefits after May 10, 2022.

The panel notes that there is a very limited amount of information on file relating to the worker's ability to perform her job duties or modified duties and restrictions. In his January 31, 2022 report on file, the treating sports medicine physician noted that according to the worker, the neuropsychologist had suggested she "maintain her current work restrictions, which has been basically off work," and that she was given a noted to be off work for 4 weeks. On April 18, 2022, the treating sports medicine physician further note that "Given her limited tolerance to activity, her memory and focusing concerns, she probably would have poor tolerance to work and therefore, I recommend her maintaining being off work…."

The panel would add that medical information provided prior to the hearing also referred to concerns regarding left-sided face and jaw pain which the worker had been experiencing since her workplace accident. The worker noted at the hearing that she had ongoing facial issues or problems, including ongoing pain in the left side of her face with yawning and chewing. The panel notes, however, that while such concerns were raised and discussed to some extent at the hearing, the panel understands that such facial issues have not been adjudicated and will therefore not comment further in this regard. The decision on this appeal therefore only relates to the diagnoses which were properly before us, being concussion, post concussion syndrome and somatic symptom disorder.

In conclusion, based on the foregoing and on a balance of probabilities, the panel finds that the worker had not recovered from the effects of her workplace injury, and suffered a loss of earning capacity and required medical aid beyond May 10, 2022 as a result of her July 8, 2021 workplace accident. The panel therefore finds that the worker is entitled to wage loss and medical aid benefits after May 10, 2022 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
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 3rd day of February, 2023