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 February 10, 2019 in relation to the November 15, 2017 accident. A hearing was held on March 1, 2023 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after February 10, 2019 in relation to the November 15, 2017 accident.

Decision

The worker is entitled to benefits after February 10, 2019 in relation to the November 15, 2017 accident.

Background

On November 17, 2017, the worker reported to the WCB that while at work on November 15, 2017, they slipped on ice injuring their neck, head, knee, hip, back and right arm. Afterward, the worker was taken to a local emergency department where they reported headaches, some swelling in the right occipital area, neck pain, tenderness in their cervical spine, right elbow pain with bruising and right hip and knee pain. A CT scan of the worker’s cervical spine conducted while at the hospital identified no fracture dislocation and some mild degeneration. The emergency room physician diagnosed a head injury and multiple soft tissue injuries.

The worker saw a chiropractor on November 21, 2017, reporting neck and hip pain, headache and their eyes felt “not in sync”. The chiropractor noted the worker had concussion symptoms, decreased range of motion in their cervical and lumbar regions with severe pain and diagnosed cervical and lumbar strain and a concussion. The chiropractor recommended the worker remain off work for two weeks. The worker sought treatment from their family physician on November 22, 2017 reporting headache and vision issues, neck and back pain and pain in both arms, hands and legs. The treating physician recorded the worker’s vision was good, a normal neurological examination, limited range of motion in the worker’s neck and back and bruising on their scalp, legs and arms. The physician provided a diagnosis of head and musculoskeletal injury and recommended the worker remain off work for two weeks.

In discussion with the WCB regarding their claim on November 22, 2017, the worker confirmed the mechanism of injury and noted they were currently experiencing headaches and neck pain, their shoulder, knee and elbow were feeling better, but they still had tenderness in their knee, hip, thumb and wrist. The WCB advised the claim was accepted and payment of various benefits began.

When a WCB medical advisor spoke with the treating family physician on November 23, 2017, they agreed upon a diagnosis of concussion and the physician made a referral to a concussion clinic, expedited by the WCB. The worker was examined at the concussion clinic on December 6, 2017 by a neurosurgeon who concluded the worker “…meets the clinical criteria for a work-related concussion as well as a whiplash-type injury and subjective vestibular impairment” and recommended treatment by vestibular and cervical spine physiotherapists. The neurosurgeon noted the worker may be able to start a graduated return to work plan after reassessment in one week’s time.

A cervical spine physiotherapist assessed the worker on December 12, 2017. The worker reported continuous suboccipital and occipital headaches with pressure behind their eyes, difficulty concentrating, “waves” in eyes, nausea and irritability. The physiotherapist diagnosed whiplash and concussion and recommended they remain off work. The physiotherapist also noted the worker’s low back and knee were not assessed. On December 19, 2017, a vestibular physiotherapist assessed the worker and concluded that the worker did not have a vestibular ocular dysfunction and did not require vestibular eye exercises or vestibular physiotherapy.

Due to the worker’s ongoing report of headaches, the treating neurologist referred the worker to a headache neurologist on January 17, 2018, and made a further referral for neuropsychological testing on February 7, 2018. On February 22, 2018, the neuropsychologist noted that due to the worker’s “…prominent pain behaviors and associated alterations in mood”, the worker could not tolerate the testing which was discontinued after 75 minutes. On March 22, 2018, the headache neurologist noted the worker’s report of chronic daily headaches, diagnosed chronic posttraumatic migraine, and provided nerve block treatment over the occipital nerves.

Due to the worker’s ongoing complaints of right knee pain, the treating family physician referred the worker for an MRI study which took place on March 27, 2018. The MRI indicated myxoid degeneration involving the posterior junctional zone of the medial meniscus but no evidence of a discrete tear, and chondromalacia in the patellofemoral compartment that had progressed since a previous MRI in 2009. The treating family physician also referred the worker to a sports medicine physician, who assessed the worker on May 8, 2018. The worker reported pain at the front of their knee, worse when bending or standing or walking for long periods with no locking, swelling or giving way. The sports medicine physician examined the worker and found positive quadriceps and patellofemoral grind testing and diagnosed right knee chondromalacia and osteoarthritis, recommending restrictions of unable to kneel, squat, climb stairs or ladders frequently and no long standing or walking recommended. The sports medicine physician also provided a pain relief injection to the worker’s knee.

When a WCB medical advisor reviewed the worker’s file with respect to their right knee on May 28, 2018, they noted the diagnostic imaging indicated chondromalacia in their patellofemoral joint, which was believed to be aggravated by the direct blow on the worker’s right knee sustained in the November 15, 2017 workplace accident. The medical advisor opined the worker had a patellofemoral contusion, with recovery prolonged due to the pre-existing degenerative condition.

On September 18, 2018, a second sports medicine physician recommended continued use of a prescribed brace, physiotherapy and exercises to address the worker’s ongoing right knee complaints.

The worker continued to seek treatment from the headache neurologist who recommended Botox treatments on September 28, 2018. A WCB medical advisor reviewed the worker’s file on October 18, 2018 and concluded that a trial of Botox would be related to the compensable injury and noted the WCB had a process in place to determine the efficacy of such treatment which they would initiate. The medical advisor also commented that the worker’s headaches were part of their post-concussion symptoms, which had not resolved and had not satisfactorily improved since the injury.

At the request of the WCB, the worker attended a call-in examination on December 7, 2018. In the examination notes signed December 10, 2018, the WCB medical advisor who examined the worker stated that the worker’s current right knee difficulties were not medically accounted for in relation to the November 15, 2017 workplace accident, noting that the worker had a progressive degenerative right knee condition and that no structural change was noted on the MRI. With respect to the worker’s neck pain and headaches, the medical advisor noted the worker had a prior WCB claim that involved a similar and prolonged presentation of neck pain and headaches and concluded that the worker’s ongoing neck pain and headache difficulties were related to their pre-existing history of headaches rather than to the workplace accident. Regarding the diagnosis of concussion, the WCB medical advisor noted recovery from a concussion generally occurs between 7 to 10 days and with no evidence of any structural brain injury resulting from the November 15, 2017 workplace accident, the worker’s ongoing difficulties were not medically related to the accident.

On February 4, 2019, the WCB advised the worker there was no further entitlement to wage loss or medical aid benefits in relation to the November 15, 2017 workplace accident.

On May 5, 2021, the worker provided additional medical information related to their claim to the WCB, including a copy of the worker’s application to the employer’s disability insurer and reports from a second concussion clinic dated March 24, 2021 and April 7, 2021. In discussion with the WCB on June 2, 2021, the worker advised they continue to experience ongoing headaches and difficulty remembering things, and still have pain in their right knee. The worker advised they had not returned to work with the employer. On July 21, 2021, the WCB advised the worker the medical information was reviewed and there would be no change to the previous decision that they were not entitled to further benefits.

The worker requested reconsideration of the WCB’s decision to Review Office on November 24, 2021, noting in their submission that they continued to experience difficulties as a result of the November 15, 2017 workplace accident and required further benefits. On December 20, 2021, Review Office determined the worker was entitled to benefits to February 10, 2019 as proper notice as required under the WCB’s policies had not been provided in the WCB’s February 4, 2019 decision letter. The worker’s representative submitted additional medical reports from the treating neurologist and treating family physician to Review Office on June 10, 2022 and requested the previous decision be reconsidered for the worker’s entitlement to further benefits. The representative noted the reports indicated the worker continued to be treated for post-concussion syndrome and as such, had not recovered from the workplace accident and required further benefits.

On July 20, 2022, Review Office found the worker was not entitled to benefits after February 10, 2019. Review Office relied upon the opinion of the WCB medical advisor who examined the worker in the call-in examination and concluded it was unable to establish a causal relationship between the worker’s current difficulties and the November 15, 2017 workplace accident.

The worker’s representative filed an appeal with the Appeal Commission on August 16, 2022 and a hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act ("the Act"), regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the Act in effect as of the date of the worker’s accident are applicable.

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. Under s 4(2), 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 of the Act allows the WCB to provide medical aid “as the board considers necessary to cure and provide relief from an injury resulting from an accident.”

Worker’s Position

The worker appeared in the hearing accompanied by their spouse, as a supporter and represented by a worker advisor. The worker advisor provided an oral submission on behalf of the worker. The worker offered testimony in the hearing through answers to questions posed to them by the worker advisor and by members of the appeal panel. The worker’s spouse also provided testimony in response to questions posed by members of the appeal panel.

The worker’s position, as outlined in the worker advisor’s submissions, is that the evidence confirms that by February 10, 2019, the worker had not recovered from the head and brain injuries sustained in the workplace accident of November 15, 2017 but continued to require medical aid and sustained a loss of earning capacity arising from that injury beyond that date. For this reason, the worker’s appeal should be granted.

The worker advisor confirmed that the worker’s appeal is focused on entitlement to further benefits only in relation to the compensable head and brain injury, and that they are relying on the written submission of June 10, 2022 made to the Review Office as well as the additional evidence provided to the Appeal Commission in advance of the hearing, which included updated medical reporting from the worker’s treating neurologist who first assessed the worker early in 2021 and conducted a formal cognitive assessment of the worker on April 8, 2022.

The worker advisor pointed out that the treating neurosurgeon noted in multiple reports in 2018 that the worker could not be referred for neuropsychological assessment until they experienced improvement in their headaches, and that this remained the case until April 2022 when an assessment was completed. The results of that assessment, the worker advisor submitted, are consistent with and substantiate the earlier documented reporting as to the worker’s difficulty with memory and concentration. The worker advisor noted that despite medical documentation of the worker’s reported cognitive difficulties through 2018, the WCB medical advisor did not comment on those difficulties in their opinion contained within the December 7, 2018 call-in examination notes.

The worker advisor also referenced the submitted documentation of the worker’s various prescriptions and appointment dates, and stated these demonstrate not only the specifics of the various medications the worker was relying upon but also that the worker remained in frequent contact with their treating family physician, although noting there are some discrepancies between the two lists provided. The worker advisor noted that the April 18, 2022 letter from the treating family physician indicates they treated the worker primarily related to their post-concussive state from October 2018 when the worker had switched to this new physician.

Referring to the diagnostic brain imaging findings, the worker advisor noted that the absence of any concerning findings is indicative of the worker’s prolonged and ongoing symptomatic experience consistent with the concussion injury.

In relation to the return to work in 2018, the worker advisor noted that the worker’s job duties required an ability to identify people and products, and these abilities were likely impacted by the reported concentration difficulties due to the worker’s headaches. The worker advisor further noted that a June 10, 2019 claim memo sets out that the worker advised the WCB case manager that they discontinued working in January 2019, although the memo does not document the worker’s reason for leaving work. The worker advisor stated that the worker was at that time seeking to apply for employment insurance benefits and later sought long term disability benefits from a private insurer, due to their inability to continue working, although the details of those applications are not documented in the worker’s file.

The worker’s spouse confirmed to the panel the dates when the worker consulted their family physician by phone in 2020: February 18, April 6, May 14, June 8 and September 8. The worker also confirmed they attended in person on July 2, 2020.

On questioning by members of the appeal panel, the worker confirmed that they did not have continuing symptoms from the head injury claim in 2000 at the time of this accident, having recovered from that injury. The worker further confirmed that they continue to experience headaches to the present, which they described as being at a level of 8/10 or worse. The worker stated that medications help somewhat and that they mostly remain in their home and don’t leave the house without sunglasses. Inside the home, the worker also wears glasses with tinted lenses.

The worker’s position, in sum, is that the evidence supports a determination that the worker was not recovered from the compensable head injury by February 10, 2019 but continued to suffer ongoing and severe symptoms well beyond that time, as confirmed by the reporting of the treating physicians and the worker’s own evidence.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The issue in this appeal is whether the worker is entitled to benefits after February 10, 2019 in relation to the November 15, 2017 accident. For the worker’s appeal to succeed, the panel would have to determine that the worker continued to experience the effects of the injury sustained in the November 15, 2017 workplace accident beyond February 10, 2019 such that the worker either required further medical aid or continued to sustain a loss of earning capacity in relation to that injury. As detailed in the reasons that follow, the panel was able to make such findings and therefore the worker’s appeal is granted.

The WCB claim file confirms that soon after the WCB accepted the worker’s claim in relation to injuries to their neck, head, knee, hip, back and right arm arising from the accident of November 15, 2017, the WCB also accepted that the worker sustained a concussion as a result, as confirmed by a file memo dated November 23, 2017 from a WCB medical advisor. The file also clearly documents that the WCB continued to accept responsibility for the worker’s post-concussion symptoms through October 2018 and the WCB medical advisor concluded, in a memo dated October 18, 2018 that:

There has been continuity of medical attention for the headaches, which are part of [the worker’s] post-concussion symptoms. Most have resolution within a few months, but those that don’t tend to report no relief with standard treatment and tend to report symptoms for an extended period of time. While the headaches remain related to the [compensable injury], this would not be considered satisfactory improvement. Botox has been used to treat headaches, so would be related to the [compensable injury]. It is hoped they reduce [the worker’s] symptoms and improve [their] function.

Shortly after the WCB medical advisor wrote to the worker’s treating concussion specialist on October 22, 2018 indicating that the WCB required further information before the requested trial of Botox injections would be considered, another WCB medical advisor reviewed the worker’s file and requested that a call-in examination be arranged, which took place on December 7, 2018. In the interim, however, the treating neurosurgeon indicated in their reports to the treating family physician, that the worker reported stability in their post-concussion symptoms and “…continues to have persistent headaches” for which Botox treatments were recommended by the treating headache neurologist. In the November 15, 2018 report the treating neurologist outlined that “These headaches continue to be daily and constant associated with photophobia and phonophobia. [The worker] has since completed [their] cervical spine physiotherapy and continues to report that [they have] significant difficulty with [their] memory.” The neurosurgeon also noted that the worker’s severe headaches had not responded to treatment and therefore a brain MRI was planned. In reference to the worker’s continuing report of cognitive symptoms, the neurosurgeon stated that the worker’s “poorly controlled headaches make it difficult for us to consider neuropsychological testing at this time.” In their December 6, 2018 report, the neurosurgeon noted the worker’s return to full-time work two weeks earlier and that the worker “continues to work with persistent symptoms”, predominantly headache and fatigue. 

The panel noted that the WCB medical advisor, in their December 7, 2018 call-in examination notes, concludes there were no findings in the medical information on file that support “the occurrence of any structural cervical spine change in relation to the November 15, 2017 workplace accident” noting the evidence of degenerative changes indicated by the November 15, 2017 cervical spine CT and the worker’s history of headaches. In terms of the diagnosis of concussion, the medical advisor remarked that recovery “generally occurs for most people over 7 to 10 days” and that there is no evidence of any “accident-related pathoanatomic correlate” for the worker’s reported cognitive complaints. The panel also noted the medical advisor’s comments on the worker’s prior head injury sustained in a workplace accident on August 5, 2000 which resulted in a diagnosis of post-concussion syndrome and resulted in recurrent neck pain and headaches, although the medical advisor does not comment on the relevance of this history to the present claim, if any.

The panel noted that the medical advisor’s opinion did not address or comment in any way upon the most recent medical reporting from the treating headache neurologist and treating neurosurgeon, in relation to the worker’s ongoing post-concussion symptoms. The panel also noted that the medical advisor failed to comment upon the worker’s reported and continuing cognitive impairments and whether these were related to their injury.

The panel also considered the January 17, 2019 narrative report from the worker’s treating family physician, outlining the course of treatments provided in relation to the worker’s concussion, noting the worker remained on multiple pain relief medications for chronic headache and musculoskeletal pain. The physician summarized that despite the various treatments and specialist assessments to date, the worker “…is still having chronic headaches, neck, back and right hip and right knee pain”, noting that the worker was seen by a new family physician since October 11, 2018.

The panel considered that the treating neurosurgeon again noted stability in the worker’s symptoms on January 21, 2019, with “persistent headaches and that the December 31, 2018 MRI “showed a few nonspecific white matter changes, but otherwise not evidence of traumatic findings or structural abnormalities.” The neurosurgeon recommended the worker continue to maintain close contact with the treating ophthalmologist and the treating neurologist, noting that “Once [their] vision is stabilized and [the worker] is felt to be medically stable, consideration should be given to a gradual return to work as tolerated” with follow-up planned for two months later. The panel noted the worker advisor’s comment that this follow-up did not take place as the WCB discontinued the worker’s benefits in the interim.

The panel noted that when the WCB advised the worker on February 4, 2019 that it would not accept further responsibility for their injuries, based largely on the findings from the December 7, 2018 call-in examination, the WCB adjudicator made no reference in their decision to any medical reporting after September 28, 2018 despite, as noted above, there being numerous reports that support the worker’s ongoing symptoms and treatment relating to the concussion sustained in the workplace accident of November 15, 2017.

The panel is not satisfied that the medical information from the worker’s treating physicians in late 2018 and early 2019 supports the WCB’s decision that the worker had recovered from the concussion and post-concussion syndrome by February 10, 2019, nor even that the worker’s post-concussion syndrome had improved by that date. The fact that recovery from concussion “generally occurs for most people over 7 to 10 days” is not relevant to the determination of whether or not this worker had recovered given the ample evidence that the worker was not recovered within that timeframe. Rather, and as noted in the October 18, 2018 medical advisor opinion, when such recovery does not take place soon after injury, the symptoms tend to continue for an “extended period of time”. Further, the panel finds that the absence of any diagnostic imaging or specific evidence of a “pathoanatomic correlate” for the worker’s cognitive complaints does not negate the treating neurological specialists’ diagnosis of continuing post-concussion syndrome. It only indicates that something possibly even more sinister than a concussion is not responsible for the continuing symptoms. Further, given the extensive passage of time from the worker’s head injury in 2000 to this injury in 2017 and the lack of any evidence of a relationship between the two injuries, the panel does not find that this prior history is of any relevance. In this regard, we accept the worker’s testimony that they did not have continuing symptoms from the 2000 injury but had recovered. 

Where there is a divergence in the opinions of the medical professionals in this claim, the panel prefers and gives greater weight to the opinions of the treating physicians, particularly those who are specialists in neurological injuries. We are satisfied on the basis of the medical reporting by the treating physicians that the worker continued to experience multiple symptoms and impacts of the concussion sustained on November 15, 2017 beyond February 10, 2019, and further, that as a result of that head injury and directly related to the symptoms of post-concussion syndrome, the worker continued to receive and require treatment beyond February 10, 2019.

On the basis of the evidence before us, and on the standard of a balance of probabilities, we are

satisfied that the worker is entitled to benefits after February 10, 2019 in relation to the November 15, 2017 accident. The worker’s appeal is granted.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
P. Kraychuk, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 6th day of April, 2023