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 wage loss or medical aid benefits beyond July 29, 2021. A videoconference hearing was held on February 16, 2023 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after July 29, 2021.

Decision

The worker is entitled to wage loss and medical aid benefits after July 29, 2021.

Background

This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 61/22 dated June 7, 2022. The background will therefore not be repeated in its entirety.

The worker submitted a Worker Incident Report to the WCB on April 7, 2021 reporting an injury to their head that occurred on March 26, 2021 as the result of a motor vehicle accident. In their Report, the worker provided details of the events immediately after the accident, and advised they were taken to a local emergency department. A diagnosis of a concussion was provided and the worker was placed off work. The worker noted they were referred on an urgent basis to a neurologist due to sustaining a second concussion within a month and they were experiencing "…concussion side effects, bruises to arms and legs."

On April 6, 2021, the worker attended an initial physiotherapy assessment. No diagnosis was provided but the physiotherapist noted the worker's report of bilateral neck pain, nausea, dizziness and headache, and recommended they remain off work for two weeks. The WCB spoke with the worker on April 8, 2021 and confirmed the mechanism of injury. The worker advised they continued to experience difficulties with headaches, nausea and vomiting and contusions to their arms and legs. The WCB accepted the worker's claim and the payment of various benefits started.

At a follow-up appointment on April 13, 2021, the worker's treating family physician noted the worker's reporting of a slight improvement in their symptoms of headaches, nausea and photophobia. On examination, the physician found the worker had full range of motion in their neck and reported a normal neurological examination. The treating physician recommended against the worker continuing with physiotherapy until being reassessed in two weeks. On April 20, 2021, the worker was examined by a neuro-ophthalmologist who diagnosed occipital neuralgia caused by concussion, concussion, and post-concussion syndrome and recommended consultation with a concussion specialist and vestibular physiotherapy.

A WCB medical advisor reviewed the worker's file and previous WCB file on April 26, 2021. The medical advisor opined the diagnosis related to the March 26, 2021 workplace accident was a whiplash injury, in the background of pre-existing degenerative cervical spine changes (osteoarthritis), with possible vestibular dysfunction. The medical advisor stated that although the treating healthcare providers diagnosed a concussion, the specific criteria in accordance with WCB policies had not been met for that diagnosis to be accepted by the WCB. The WCB medical advisor went on to note that the "…natural history of a whiplash injury typically is for recovery over the course of 4-8 weeks with slightly longer durations known in the presence of pre-existing degenerative cervical spine conditions" and the natural history of vestibular dysfunction was for recovery over the course of several weeks to months with appropriate therapy. Both physiotherapy for whiplash and vestibular therapy were confirmed as the appropriate treatment and workplace restrictions were recommended. The medical advisor opined the worker's pre-existing degenerative cervical spine osteoarthritis was not structurally aggravated or enhanced by the March 26, 2021 workplace accident.

The employer was provided with the restrictions on April 30, 2021. On May 7, 2021, the employer advised they could accommodate the worker starting on May 10, 2021.

On May 10, 2021, the WCB received correspondence from the treating family physician stating their disagreement with the WCB's decision the worker had not sustained a concussion as a result of the workplace accident. The physician also noted their concern with the worker returning to work due to their ongoing symptoms.

On May 11, 2021, the worker attended an initial vestibular physiotherapy session. The worker reported dizziness, nausea, imbalance, fatigue, headache, photo and photosensitivity and neck pain. Upon examination, the treating physiotherapist noted decreased range of motion in the worker's cervical spine but normal vestibular-ocular and benign paroxysmal positional vertigo tests and diagnosed post-concussion with an element of cervicogenic dizziness. Further physiotherapy treatment was recommended before the worker participated in a gradual return to work.

On May 14, 2021, the employer again advised the WCB they could accommodate the worker within their restrictions starting on May 17, 2021. On the same date, the WCB contacted the employer for further clarification of the March 26, 2021 workplace accident. The employer advised the motor vehicle accident did not involve a collision, just an abrupt stop, and the other occupants of the vehicle did not suffer any injuries.

A WCB medical advisor reviewed the treating neuro-ophthalmologist's report of April 20, 2021, along with the worker's file, noting the treating neuro-ophthalmologist relied on a single metric as a clinical finding to support the diagnosis of concussion and requested further information on the assessment of convergence with a WCB neuro-ophthalmology consultant. Further review by a WCB physical medical consultant was also requested.

On May 26, 2021, the WCB neuro-ophthalmology consultant provided their opinion in a memorandum to the worker's file. The consultant noted the worker's treating neuro-ophthalmologist's report indicated the worker did not report double vision at both near and far distance and in all directions of gaze and opined the absence of double vision, along with the other reporting by the neuro-ophthalmologist, did not support a diagnosis of a concussion.

The WCB advised the worker by letter dated June 4, 2021 that they were not entitled to benefits after May 16, 2021 as their employer had suitable modified duties within their restrictions available for them as of May 17, 2021.

On June 10, 2021, the worker contacted Review Office to confirm they wished to proceed with the request they submitted on May 25, 2021 for reconsideration of the June 4, 2021 decision to end their entitlement to benefits. The WCB gathered further information from the worker and the employer, including contact information for the worker's co-workers who were in the vehicle at the time of the March 26, 2021 workplace accident. The WCB medical advisor spoke with the treating neuro-ophthalmologist on July 8, 2021, who noted disagreement with the medical opinions provided by the WCB. On July 9, 2021, the WCB spoke with the co-workers who provided further details of the motor vehicle accident on March 26, 2021 and confirmed they had not sustained injuries as a result of the accident. They also confirmed the worker reported not feeling well after the accident and was taken to the local emergency department.

On July 22, 2021, a WCB physical medicine specialist reviewed the worker's file. The specialist provided a summary of the mechanism of injury as reported by the worker and their co-workers and of the worker's medical treatment, and agreed with the April 23, 2021 opinion of the WCB medical advisor that the worker sustained a "…minor cervical strain from a possible whiplash mechanism…" which was expected to have resolved in days to three to four weeks at most. The WCB physical medicine specialist further noted the medical evidence on file of "…some preexisting degenerative involvement of the cervical spine…" and no evidence of any acute injury related findings. The specialist opined the worker's current presentation of headaches, nausea, imbalance, fatigue, photophobia, phonophobia, neck pain and stiffness, could not be medically accounted for in relation to the March 26, 2021 workplace accident, and medical treatment and work restrictions were therefore not required.

The worker's representative provided a written submission to Review Office on August 5, 2021. The representative noted the worker's treating healthcare providers supported the diagnosis of concussion and for the worker to remain off work in order to receive further treatment. The representative stated the worker's refusal to return to work on May 10, 2021 and again on May 17, 2021 was based on those recommendations. The worker's representative further noted the WCB continued to investigate the claim after the June 4, 2021 decision to end entitlement to benefits, and during that time the worker should have continued to receive benefits until those investigations were completed.

On August 17, 2021, Review Office upheld the WCB's decision. Review Office accepted and agreed with the opinions of the WCB medical advisors that the worker did not meet the WCB criteria for concussion from the March 26, 2021 workplace accident, and as such, did not accept the recommendation of the worker's treating healthcare providers for the worker to remain off work. Review Office found the worker was capable of performing the accommodated duties offered by the employer as of May 17, 2021 and no longer had a loss of earning capacity after May 16, 2021. The worker's representative filed an appeal with the Appeal Commission on August 26, 2021 and a videoconference hearing was arranged.

On June 7, 2022, pursuant to Appeal Commission Decision No. 61/22, the Appeal Commission determined the worker was entitled to benefits after May 16, 2021 and the worker's file was returned to the WCB for further adjudication.

On June 15, 2022, the WCB contacted the worker after reviewing Appeal Commission Decision No. 61/22. The WCB advised the worker that based on the WCB medical advisor's July 22, 2021 opinion, their ongoing difficulties could not be accounted for as related to the March 26, 2021 workplace accident, and the worker's entitlement to benefits would therefore be extended to July 29, 2021, which included 7 days' notice of change of benefits in accordance with the WCB policies. A formal letter setting out the WCB's decision was provided to the worker on June 17, 2022.

On June 30, 2022, the worker's representative requested that Review Office reconsider the WCB's decision. The representative submitted the worker's treating healthcare providers had not cleared the worker to return to work until August 16, 2021, which the representative noted was at the request of the worker as they had been denied wage loss benefits by the WCB and had no income, and noted that they returned to modified duties. The representative noted there were reports from the worker's treating healthcare providers put to the worker's file after the WCB medical advisor's July 22, 2021 opinion that refute the worker's ability to work and clarify the worker's diagnosis, which the WCB, after the Appeal Commission made its decision, did not review, and which indicated the worker required further time away from work and further treatment for their symptoms.

On September 12, 2022, Review Office determined that the worker was not entitled to wage loss or medical aid benefits beyond July 29, 2021. Review Office noted the crux of the Appeal Commission decision dealt with the worker's entitlement to benefits being ended before an ongoing investigation was completed, and agreed with the WCB's decision to end entitlement to benefits on July 29, 2021, in keeping with the WCB's policies, as the final WCB medical opinion was placed to the worker's file on July 22, 2021.

On September 16, 2022, the worker's representative appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations made under the Act and policies established by the WCB's Board of Directors. The provisions of the Act which were in effect as at 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.

Worker's Position

The worker was represented by a worker advisor, who filed a written submission in advance of the hearing. The worker's representative noted that their position was largely set out in their June 30, 2022 submission to Review Office, and they would also be commenting briefly on the medical evidence they had provided in advance of the hearing.

The worker's position was that the March 2021 accident caused an injury or injuries which resulted in new or worsening symptoms that were not sufficiently resolved by the current benefit end date of July 29, 2021, such that the worker would not be able to return to work safely, and required further medical treatment.

The worker's representative submitted that the WCB and Review Office decisions do not appear to consider in any meaningful way the medical evidence and opinions provided by the worker's treating healthcare providers, and the totality of evidence supports that the worker is entitled to further medical aid and wage loss benefits. The representative noted that the previous appeal panel granted the worker's appeal in part because it found the worker acted reasonably by following the advice of their treating healthcare providers, none of whom supported their resumption of work in any capacity.

The representative submitted that the July 22, 2021 physical medicine specialist's opinion should not be relied on as it is based on an incomplete review of the available medical information, fails to address all of the injuries caused by the workplace accident, and relies on a generalized history of recovery, as opposed to addressing whether the worker's healthcare providers' reports actually supported the worker had recovered from their injury or injuries which, it was submitted, they clearly do not. The representative submitted that there is substantial evidence to rebut the July 22, 2021 physical medicine specialist's opinion which was relied on to limit the worker's benefits entitlement.

It was submitted that the treating healthcare providers' opinions, which up to July 23, 2021 state that the worker was unable to work and still needed vestibular physiotherapy, should be preferred. The representative noted that the medical reporting ended shortly after July 2021, as the WCB advised that the claim was closed. The representative noted that even after the Appeal Commission issued its decision, the WCB did not pursue any further medical information.

The worker's representative submitted that while the worker reported having returned to work on August 16, 2021, they had received medical clearance from their treating healthcare providers to do so, but only to modified/alternate work duties. The representative noted that the evidence shows the worker pleaded with their healthcare providers to permit them to try to resume working at that time due to financial hardship/necessity, and submitted that this supports that the worker's loss of earning capacity persisted well past July 29, 2021.

The worker's representative noted that if he could have foreseen that the WCB would not undertake any further investigation following the Appeal Commission's decision, he would have pursued and supplied the medical reporting he provided to this panel in advance of the hearing.

The representative submitted that it appeared from the medical reporting that through the provision of medical treatment, the worker had experienced some symptomatic improvement prior to their return to work in mid-August, which seemed to have satisfied their treating healthcare providers to support their resuming work, with modified duties. The representative submitted that the previous appeal panel having agreed it was reasonable for the worker to follow the advice of their treating healthcare providers, it should follow that it was reasonable for the worker to follow the advice of their healthcare providers who did not support returning to work as of July 30, 2021.

Employer's Position

The employer was represented by a paralegal, who made an oral submission at the hearing. The employer's position, as outlined by their advocate, was that the worker suffered a whiplash or concussion injury, which aggravated or enhanced the worker's pre-existing condition.

The employer's advocate submitted that the previous appeal panel determined that the worker suffered a whiplash or concussion type injury, but the Review Office has ignored or not understood that decision, and it is imperative to get confirmation or clarification on this at this point. The advocate noted that the employer has sought and been denied cost relief on the claim, which he acknowledged is not part of the issue on this appeal, but submitted that it is important for the panel to address this as the panel has to decide if the worker suffered a temporary or permanent worsening of their pre-existing condition.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss and medical aid benefits after July 29, 2021. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained a loss of earning capacity and/or required medical aid beyond July 29, 2021 as a result of their March 26, 2021 workplace accident. The panel is able to make that finding, for the reasons that follow.

The panel is satisfied that the evidence supports that the worker continued to suffer the effects of their workplace injuries, and had not recovered from their injuries at the benefit end date of July 29, 2021. The worker continued to seek treatment, and to suffer a loss of earnings and require medical aid, and is entitled to wage loss and medical aid benefits beyond that date. The panel is satisfied that the worker was so symptomatic that they were unable to return to work until August 16, 2021, and that even then, the evidence indicates that the worker convinced their healthcare providers to clear them to return to work at that time for financial reasons.

When the worker's claim was returned to the WCB following the Appeal Commission decision, to investigate and consider the extent of the worker's further entitlement to benefits, it is apparent that the WCB did not attempt to obtain or review any further medical information from the worker's healthcare providers. The panel is of the view the WCB's investigation as it was framed and proceeded was very narrow, and would have resulted in only one outcome.

The panel notes that the WCB's investigation with respect to the worker's further entitlement to benefits should have included not only updated medical information, but also other matters, including the recommendations and need for vestibular therapy. The worker's representative obtained and provided the panel with a significant amount of medical information on the appeal, which has not been reviewed by the WCB but is now on file.

The panel acknowledges the position taken by the employer's advocate requesting clarification with respect to the decision by the previous appeal panel, and notes that the representative was quoting the following sentence from page 11 of that decision as the basis for the employer's position and request for clarification:

The panel accepts that the sort of rapid collision avoidance and deceleration event described by the worker could account for a whiplash or concussion-type injury.

As the panel indicated at the hearing, it is not our role to clarify or confirm what the previous panel intended by that sentence, and we were not prepared to do so.

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 their workplace injury, and sustained a loss of earning capacity and required medical aid beyond July 29, 2021 as a result of their March 26, 2021 workplace accident. The panel therefore finds that the worker is entitled to wage loss and medical aid benefits after July 29, 2021.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
S. Briscoe, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 17th day of April, 2023