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 September 23, 2021. A hearing was held on March 15, 2023 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after September 23, 2021.

Decision

The worker is entitled to benefits after September 23, 2021.

Background

On August 5, 2021, the employer provided an Employer’s Accident Report to the WCB reporting that the worker injured their neck and head during an incident at work on August 2, 2021 when they were struck in the back of the neck by a resident. The employer noted the worker’s report of “…immediate pain (described as a migraine) and felt lightheaded and dizzy”.

On August 2, 2021, the worker sought medical treatment from a family physician reporting a few-second loss of consciousness and a headache after a head injury at work. The physician recorded a normal neurological examination, referred the worker to a neurologist and recommended the worker remain off work pending reassessment. The worker sought emergency care on August 4, 2021, reporting ongoing headaches, nausea, sensitivity to light and intermittent ringing in their ears after being struck in the head two days earlier. The worker noted they did not lose consciousness and sought medical treatment the same day. The examining physician noted the worker appeared well and in no acute distress, recorded a normal neurological examination and found “…no sign of any skull fracture no significant hematoma to the scalp.” The physician concluded the worker “…almost certainly has a concussion” but given their normal neurological and examination, did not require a CT scan. The physician recommended the worker relax in a quiet, dark environment to alleviate their symptoms.

When the WCB contacted the worker on August 6, 2021, the worker advised they were struck in the back of the head by a resident, after which they reported seeing flashing light. The worker reported the incident but remained at work and finished their shift. The worker reported their symptoms following the incident as head and neck pain, flashing lights, nausea and a bump at the back of their head but noted they did not lose consciousness. The worker confirmed that when they sought medical treatment on August 2, 2021, the physician advised they had a concussion. The worker described feeling a “little better” but described symptoms of dizziness with neck and head pain.

The WCB advised the worker their claim was accepted. On August 19, 2021, a WCB medical advisor reviewed the worker’s file, and noted that the WCB required specific criteria to accept a concussion diagnosis, which included an immediate loss of consciousness, an immediate seizure, amnesia for events immediately preceding or following the head trauma incident, or an immediate alteration in cognitive function. The WCB medical advisor opined that based on the medical information on the worker’s file, the worker did not sustain a concussion in relation to the August 2, 2021 workplace accident.

At follow-up with the treating family physician on August 26, 2021, the worker reported a “mild improvement” in headaches with continued nausea, light headedness, and low energy. The physician noted a normal neurological examination, normal gait and a sensitivity to light and provided a diagnosis of a concussion, referring the worker to a concussion clinic and recommending a gradual increase in physical activities. A CT scan of the worker’s brain and cervical spine conducted on August 29, 2021 indicated normal findings for both areas.

When the WCB contacted the worker on September 16, 2021 to discuss their claim further, they advised the worker their claim was accepted for a head injury but not for a concussion, and as the worker’s ongoing difficulties related to a concussion, the WCB would not continue to accept responsibility for the claim. As such, the worker’s entitlement to further benefits would end on September 23, 2021, as confirmed in a decision letter dated September 16, 2021 and provided to the worker on September 24, 2021.

On September 26, 2021, the worker requested reconsideration of the WCB’s decision to Review Office. In their submission, the worker noted the treating healthcare practitioners agreed the worker sustained a concussion as a result of the August 2, 2021 workplace accident, and that the treating family physician recommended they remain off work until October 20, 2021 due to their symptoms. On September 29, 2021, the worker submitted a report from the treating family physician who reported the worker had been “…experiencing some symptoms that are consistent with post – concussion syndrome…” and indicated the worker was required to be off work until they were symptom-free. The physician also noted the worker had an appointment in November 2021 for an assessment with a neurologist.

The initial physiotherapy assessment report from October 15, 2021 indicated the worker’s report of always feeling dizzy and like they are in a fog, painful movement in any direction for their head and neck, constant headaches, pain to the touch in their shoulders and limited activity tolerance to 20 to 30 minutes. The physiotherapist noted the worker’s limited range of motion, mostly due to their report of pain, and not tolerating testing in any direction for their neck, and found the worker was still “…showing strong concussion symptoms as well as whiplash and c-spine (cervical spine) strain/sprain”, with sensitivity to light and noise and inability to tolerate pressure to their neck or suboccipital areas. The physiotherapist diagnosed whiplash, cervical spine strain/sprain and post-concussion symptoms.

A WCB medical advisor reviewed the new medical information and the worker’s file on October 26, 2021 and concluded the medical evidence did not support the worker sustained a concussion as a result of the August 2, 2021 workplace accident. They opined that the compensable diagnosis was a head/neck contusion, with a natural recovery period over the course of several days to weeks. The medical advisor noted the worker’s current difficulties were beyond the natural recovery period and therefore were not medically accounted for in relation to the workplace accident. On November 5, 2021, the WCB advised the worker that there would be no change to the decision they were not entitled to benefits after September 23, 2021.

On November 25, 2021 Review Office determined that the worker was not entitled to benefits after September 23, 2021. Review Office relied upon the WCB medical advisor opinions that the medical evidence in closest proximity to the August 2, 2021 workplace accident did not support a finding that the worker sustained a concussion with the mechanism of injury not being of sufficient force to cause an immediate brain injury. Review Office found the worker sustained a minor injury along the lines of a contusion or strain and their current difficulties were not related to the workplace accident.

The worker’s representative filed an appeal with the Appeal Commission on November 17, 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, regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the Act and WCB policies 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 with the assistance of an interpreter and represented by a worker advisor. The worker advisor outlined the worker’s position in an oral submission and introduced evidence through questions posed to the worker. The worker offered testimony through the answers to questions posed by the worker advisor and by members of the appeal panel.

The worker’s position, as outlined by the worker advisor, is that the worker is entitled to benefits after September 23, 2021 as the evidence does not support a finding that the worker recovered from the compensable head injury sustained on August 2, 2021 by that date, but rather supports the conclusion that the worker continued to experience symptoms related to that injury, and to require medical treatment and experience a loss of earning capacity arising out of that injury, beyond that date. As such, the worker is entitled to further benefits and the appeal should be granted.

The worker advisor, in their submission to the panel, noted that the worker continued to attend medical treatment through August and September 2021 in relation to their ongoing neck and head symptoms and that the treating physician advised the worker to remain off work. On September 15, 2021, the treating family physician advised the worker to remain off work until at least October 20, 2021. The treating physiotherapist, in their letter of November 8, 2022, confirmed the worker was not ready to return to work at the time of the first assessment in October 2021, as they had significant limitations in their range of motion. The worker advisor noted that despite there being no evidence to indicate that the worker was recovered from their injuries, the WCB determined that it would not accept further responsibility for the worker’s injuries and provided 7 days’ notice of the termination of the worker’s benefits.

The worker advisor submitted that while there is no requirement for a diagnosis in order for a claim to be accepted or for entitlement to benefits to be established, the worker in this case was struck with sufficient force to cause a concussion and had immediate manifestation of neurological injury as demonstrated by the worker seeing flashing light and feeling confused. The worker also had immediate post-accident symptoms of headache and dizziness, which support the diagnosis of concussion. The worker advisor also noted that the file evidence does not indicate that the WCB made any attempt to seek out further information from the employer, such as the logbook incident report, or from the coworkers present on the date of accident, which could have corroborated the worker’s statements as to their post-injury symptoms. The worker’s position is that the evidence demonstrates they sustained a concussion as a result of the workplace accident; however, regardless of the diagnosis, it is clear on the basis of the evidence that the worker suffered a traumatic injury to their head and neck, and that they continued to have a loss of earning capacity and to require medical aid beyond September 23, 2021 in relation to that injury.

The worker advisor further noted that the August 29, 2021 CT scan findings indicate a cervical spine condition of slight reversal of normal cervical lordosis, which the worker believes was either caused by or aggravated by the accident. The worker advisor noted that the WCB medical advisor on October 28, 2022 noted that the natural history of a cervical strain whiplash injury would be over 4-8 weeks, and slightly longer in the presence of a pre-existing spine condition. Although the medical advisor went on to state that the findings from the October 22, 2021 physiotherapy assessment were not consistent with typical recovery times, the worker advisor noted that such recovery times are not applicable to every individual.

The worker advisor submitted that prompt physiotherapy treatment leads to better outcomes but in this case the worker was not able to begin such treatment until late October, 2021. Further, the worker advisor noted the WCB medical advisor confirmed that physiotherapy would be appropriate in the management of a cervical strain/whiplash injury and also recommended a gradual return to work on light duties “with no prolonged cervical postures.”

In their testimony, the worker described how the injury occurred, noting that they were struck in the back of the head while looking downward, with head bowed, in the process of unlocking the door of the employer’s premises. The worker described feeling immediately confused and seeing lights, with pain in their neck and head, and their nose running from the force of the punch. The worker described feeling off balance and dizzy and scared. Through the balance of the shift, the worker felt confused and scared and was unable to perform their regular duties, including writing in the workplace logbook. The worker noted that their spouse picked them up at work that day. After work, the worker went to see their family doctor.

The worker described continuing to feel dizzy with a lot of pain in the back of their neck and difficulty in moving their neck, which was the reason that their family physician recommended the worker be treated with physiotherapy. The worker noted the challenge of getting in for physiotherapy, because of both the cost of treatment and their continuing dizziness.

The worker testified that they left their job with the employer as of October 31, 2021 as they did not feel supported in that role after the injury occurred and could not be accommodated in that role, but that they began working with another employer in a different role in November 2021.

In sum, the worker’s position is that this claim was accepted on the basis of the worker’s head and neck injury as supported by the medical reporting, and that reporting also supports the worker's ongoing disability and loss of earning capacity. There is no medical evidence of the worker's recovery and regardless of the diagnosis, the worker was injured at work and suffered a loss of earning capacity and required medical aid in relation to the workplace injuries beyond September 23, 2021.

Employer’s Position

The employer did not participate in the appeal.

Analysis

This appeal is in respect of the question of whether the worker is entitled to benefits after September 23, 2021 in relation to the August 2, 2021 accident. For the worker’s appeal to succeed, the panel would have to determine that the worker continued to experience the effects of the compensable workplace accident beyond September 23, 2021 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 worker’s position is that the evidence indicates they had not recovered from their compensable injuries by September 23, 2021 and remained off work on their physician’s advice at that time and did not even begin physiotherapy related to those injuries until approximately one month later. On reviewing the medical reporting from the treating professionals, the panel noted that the worker’s treating physician provided a sick note dated September 15, 2021 indicated that they had seen the worker in clinic on that date and recommended the worker remain off work for another 4 weeks, pending reassessment. Earliest return date October 20, 2021. In a further note dated September 27, 2021, the treating physician indicated that the worker “has been experiencing symptoms that are consistent with post-concussion syndrome and…[is] required to be off work till [they are] symptom free. Has an [appointment] with Neurology in Nov[ember] to further assess….” At the time of the initial physiotherapy assessment on October 22, 2021, the worker noted feeling dizzy and in a fog, constant headaches, difficulty moving their neck and head and reduced tolerance for activity. The physiotherapist noted the worker’s cervical spine flexion and rotation to be at 1/3 of expected range with immediate pain and reported that the worker was “still showing concussion symptoms as well as whiplash and c-spine strain/sprain. Patient is sensitive to light and noise. Can not tolerate pressure to the neck or suboccipitals.” The physiotherapist opined that the worker remained disabled from work and was not capable of alternate or modified work.

The panel also considered the opinion provided by the WCB medical advisor. On August 19, 2021, the medical advisor noted stated that certain criteria must be met “for the WCB to accept a diagnosis of concussion as accounted for on the basis of a given workplace accident” and concluded that the worker’s accident and related injuries did not satisfy the WCB’s criteria. The medical advisor did not reference the materials reviewed in order to come to that conclusion, although the panel noted that the only medical reporting available at that time was the emergency visit summary of August 4, 2021. The subsequent opinion of the WCB medical advisor, provided on October 28, 2021, elaborates upon their initial opinion as to the diagnosis of concussion, noting that if the worker experienced a loss of consciousness, they would meet the WCB criteria for a diagnosis of concussion but that the evidence does not support this to be the case. Nonetheless, the medical advisor concluded that the “likely initial diagnoses included a head contusion (though may have been a cervical contusion rather than a head contusion…) and a cervical strain/whiplash.” The medical advisor went on to comment upon the natural history of such injuries and noted that, at more than 12 weeks since the August 2, 2021 incident, the worker’s “current presentation in relation to [their] cervical spine is not medically accounted for on the basis of the initial diagnosis of cervical strain/whiplash.” The medical advisor agreed that physiotherapy was the appropriate treatment for management of cervical strains/whiplash and stated that although the worker’s “currently reported symptoms are subjective and non-specific in nature”, consideration should be given to a graduated return to work, based on the worker’s tolerance and to promote a successful return to work.

The panel considered that the worker’s treating family physician outlined an initial diagnosis of head injury on August 2, 2021 and requested a CT scan, which was conducted on August 30, 2021, but on August 26, 2021, provided the diagnosis of concussion and made a referral to a concussion clinic. The panel also noted that the emergency visit summary reported sets out that “At this time now over 48 hours after the incident, the patient almost certainly has a concussion.”

While the WCB medical advisor relied upon WCB criteria for acceptance of a diagnosis of concussion in coming to their conclusion that the worker did not sustain a concussion in the workplace accident, the treating physicians had the benefit of assessing the worker in reaching the opposite conclusion. As noted by the worker advisor, however, the question before this panel is not whether the worker was diagnosed with a concussion, but whether the worker was recovered from their compensable head and neck injury by September 23, 2021.

The evidence here, including the medical reporting in relation to the worker’s head injury, does not support a finding that the worker was recovered from the compensable injury by September 23, 2021. To the contrary, the evidence before the panel indicates that the worker continued to report symptoms of dizziness, sensitivity to light, headaches and cervical spine pain at the time of their physiotherapy assessment on October 22, 2021, which symptoms were consistently reported from the time of initial injury. Further, the treating physician recommended the worker remain off work until at least October 20, 2021 and the WCB medical advisor on October 28, 2021 indicated the need for the worker to return to work on a graduated schedule with restrictions in place, supporting that the worker continued to have a loss of earning capacity beyond September 23, 2021. Further, the evidence supports a finding that the worker continued to require medical aid beyond that date. The panel noted that although the treating physician recommended physiotherapy to the worker, the worker was unable to access such treatment until October 22, 2021, in part due to the worker’s ongoing symptomatic presentation and in part due to the worker’s inability to afford that treatment without any supports in place, and the evidence before us confirms that the worker continued with physiotherapy related to the injuries sustained in the workplace accident until December 2021. The panel also noted that the WCB medical advisor agreed physiotherapy was appropriate treatment for a cervical spine strain/sprain.

On the basis of the evidence before the panel, and on the standard of a balance of probabilities, we are satisfied that the worker had not recovered from the compensable workplace injuries by September 23, 2021 but continued to sustain a loss of earning capacity beyond that date and to require medical aid in relation to the injuries sustained in the accident of August 2, 2021. Therefore, the worker is entitled to benefits after September 23, 2021 and the appeal is granted.

Panel Members

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

Recording Secretary, J. Lee

- Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 21st day of April, 2023