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 and medical aid benefits in relation to the June 23, 2016 accident. A hearing was held on September 19, 2023 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further wage loss and medical aid benefits in relation to the June 23, 2016 accident.

Decision

The worker is entitled to further wage loss and medical aid benefits in relation to the June 23, 2016 accident.

Background

The employer provided an Employer's Incident Report to the WCB on June 29, 2016 indicating that on June 23, 2016, while at work, the worker injured their head after striking their forehead on a metal rack, resulting in a laceration to their forehead just above their left eye. The employer also provided a copy of a sick note indicating the worker was removed from work until June 26, 2016, and a completed Functional Abilities Form dated June 24, 2016.

On June 30, 2016, the worker submitted a Worker Incident Report to the WCB reporting they injured their head at work on June 23, 2016. The worker described putting items on a metal shelf that fell onto their head. The worker explained “Not sure what happened, I blacked out for a while” and indicated that a witness saw what happened and told them their head was bleeding.

When the WCB met with the worker on June 30, 2016 to discuss the claim, the worker confirmed they injured their head against a metal shelf, with a witness to the accident. The worker described that their head was very sore, with a cut on the top. After reporting the injury to their manager, the employer sent them to a local emergency room by taxi. The emergency room physician recommended the worker remain off work for 3 days and completed the employer’s Functional Abilities Form indicating the worker could return to work on regular duties. The physician recommended the worker see their family physician and return to hospital if they had any nausea or vomiting. The worker returned to the hospital on June 26, 2016, where they had a CT scan. They returned to work on June 28, 2016 and June 29, 2016, and missed work June 30, 2016 to see their family doctor. The worker reported current symptoms including nausea, dizziness, numbness, and headaches that worsened with movement.

On July 5, 2016, the WCB received the emergency department report from the worker’s June 23, 2016 visit, recording the worker’s report of bumping their head against a shelf and feeling a bit dizzy. The report noted an abrasion on the worker’s forehead and a diagnosis of closed head injury. The WCB also received a report from the worker’s June 26, 2016 return to the emergency department, indicating the worker’s report of nausea and vomiting. After a normal neurological examination, the worker was diagnosed with concussion and referred for a CT scan, which took place on June 27, 2016 and indicated “No acute intracranial pathology”.

On seeing their family physician on June 30, 2016, the worker reported headache, dizziness, nausea, and pain to their left forehead after striking their forehead on a metal shelf. The physician diagnosed concussion, referred the worker to a concussion clinic, and recommended the worker could return to work at their regular duties on July 4, 2016.

The worker saw their treating neurologist on July 11, 2016, with a report provided to the treating family physician on the same date, shared with the WCB on August 17, 2016. The treating neurologist provided a medical note placing the worker off work until July 22, 2016. On July 20, 2016, the worker was assessed at a concussion clinic. The concussion clinic physician noted the worker’s reporting of dizziness, nausea, and vomiting with worsening symptoms on returning to work, including neck pain. The physician identified some neurologic deficits and noted a prior head injury from May 2012, and that the worker was being treated by a neurologist for chronic head numbness and nausea. The physician recommended the worker remain off work until reassessed by their family physician and follow up with the treating neurologist. The physician indicated that the worker was not capable of alternate or modified work.

On July 22, 2016, the WCB provided a decision letter advising the worker that their claim was accepted with wage loss benefits only until June 27, 2016. The WCB noted the worker returned to work, performing modified duties until June 30, 2016, at which time they sought further medical treatment, and concluded that the worker’s time loss after June 27, 2016 could not be related to the workplace accident on June 23, 2016.

When the WCB case manager contacted the worker on August 3, 2016, the worker advised the case manager they returned to work on July 5, 2016 but by July 8, 2016, they experienced an increase in symptoms of nausea, dizziness and headache and they continued to have those symptoms along with numbness to their forehead and face.

At the request of the WCB, the worker attended a call-in examination with a WCB medical advisor on August 29, 2016. On examining the worker, the medical advisor provided an opinion to the worker’s file on September 12, 2016 indicating the diagnosis related to the workplace accident of June 23, 2016 was a forehead abrasion with a possible contusion, which had a natural history of recovery over a period of days to two weeks. The WCB medical advisor provided the worker did not meet the WCB’s criteria for diagnosis of a concussion and that the worker’s current and ongoing symptoms were not medically accounted for in relation to the workplace accident, noting the worker reported similar symptoms prior to the accident. On the same date, the WCB provided a decision letter to the worker advising them they were not entitled to further benefits as a relationship between their current difficulties and the workplace accident could not be established.

On December 14, 2016, the worker’s representative requested Review Office reconsider the WCB’s decision, submitting that the evidence from the treating healthcare providers indicated the workplace accident of June 23, 2016 caused a material change to the worker’s pre-existing condition. Further, the representative outlined that the medical information established a connection between the worker’s symptoms and their inability to return to work. On March 22, 2017, the employer’s representative provided a submission in support of the WCB’s decision, a copy of which was shared with the worker and their representative. A further response from the representative was received on April 5, 2017.

On April 6, 2017, Review Office found the worker was not entitled to further benefits, relying on the WCB medical advisor’s opinion that the worker did not sustain a concussion as a result of the June 23, 2016 workplace accident, with a compensable diagnosis of head injury with a possible contusion and abrasion. Review Office concluded the worker’s time loss and need for ongoing treatment after June 27, 2016 did not relate to the workplace accident.

The worker’s representative filed an appeal with the Appeal Commission on May 4, 2023 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

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.”

The WCB established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Pre-existing Policy") to address eligibility for compensation in circumstances where a worker has a pre-existing condition. This policy sets out that the WCB will not provide benefits for disability 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" but when a worker’s loss of earning capacity is caused in part by a compensable condition and in part by a non-compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury.

Worker’s Position

The worker appeared in the hearing represented by a worker advisor and supported by an interpreter. The worker provided testimony through answers to questions posed to them by the worker advisor and by members of the appeal panel. The worker advisor made an oral submission on behalf of the worker and relied upon the written submission delivered to the Appeal Commission on September 11, 2023.

The worker’s position is that they are entitled to further wage loss and medical aid benefits in relation to the accident of June 23, 2016 as the evidence indicates the injury from that accident did not resolve by the time the WCB terminated benefits, and that as a result of the accident, the worker remained off work and sought further medical treatment on the advice of their treating medical providers beyond that time.

The worker advisor submitted that the evidence supports a finding that the worker sustained a concussion from the accident, noting that the treating medical providers, other than the initial emergency room physician, offered that diagnosis, and arguing that the panel should accept the consensus opinion of those physicians. The worker advisor argued that any uncertainty as to the worker’s diagnosis should be decided in the worker’s favour, noting that the WCB failed to seek evidence from the witness to the accident or the manager to whom the worker reported the accident, and further did not inquire as to whether any video evidence was available. The worker advisor pointed to the copy of the employer’s internal incident report of June 23, 2016, submitted to the Appeal Commission for consideration, which indicates there was a witness, that the manager spoke to the worker within 5 minutes of the accident occurring and that video surveillance was available.

The worker advisor further noted that both the WCB case manager and medical advisor failed to inquire further into the details surrounding the accident, including the mechanism of injury. Further, although both noted the worker had some language difficulties, no attempt was made to communicate with the assistance of an interpreter. The worker advisor further noted that the WCB medical advisor specifically commented on the communication difficulties but did not seek clarification from the worker as to their initial statements about blacking out for awhile and what the witness saw or said to them.

The worker advisor noted the reports from the treating neurologist confirm that the worker has a prior history of concussion or head injury, thus increasing the risk of further concussions, and noted the neurologist’s comments in relation to the foundation of their diagnosis of concussion. The worker advisor submitted that the panel should prefer the opinion of the treating neurologist that the accident aggravated the worker’s pre-existing medical condition.

The worker advisor further submitted that the worker is entitled to wage loss benefits after June 27, 2016 as they were acting on their treating physicians’ advice in remaining off work, noting the medical notes confirm that the worker would be off from June 30 – July 4, 2016 and again from July 11, 2016 onward. The worker advisor confirmed that the worker returned to work on July 5, 2016 working through to July 8, 2016 when they discontinued due to an increase in symptoms. The worker advisor highlighted to the panel that the worker continued to seek treatment for their injuries, including seeing an Ear Nose and Throat (“ENT”) specialist on August 22, 2016, an eye specialist, and a physiotherapist, but that none of these reports are on file.

The worker testified that the accident occurred when they struck their head on the underside of a metal shelf on rising to an upright position from bending to place items on the shelf below. The worker stated that the witness told them that they hit their head. The worker recalled immediately feeling dizziness, nausea, and headache. They walked to the nearby desk where they were given a seat and told their manager what happened. The manager escorted the worker to an office, holding the worker’s arm as a support, and seated the worker again, while completing an incident report which the worker signed. The manager arranged for a taxi to take the worker to the emergency room at a local hospital. The worker confirmed that they did not work at this job or their concurrent employment on June 24 and 25, 2016, but returned to both jobs for June 28 and 29, before leaving work again. The worker confirmed that they returned to the emergency room on June 26, 2016 when their symptoms worsened.

In sum, the worker’s position is that the evidence confirms that the worker was not recovered from the effects of the compensable workplace injury by June 27, 2016, but sustained a further loss of earning capacity beyond that date as a result of the workplace injury and required additional medical aid beyond the termination of those benefits as a result of the injury. Furthermore, the evidence supports a finding that the worker sustained a concussion as a result of the workplace accident, which occurred in the context of the worker’s previous concussive injuries, or that the accident caused an aggravation of the worker’s pre-existing condition. For these reasons, the worker’s appeal should be granted.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The question on appeal is whether the worker is entitled to further wage loss and medical aid benefits in relation to the accident of June 23, 2016. For the worker’s appeal to succeed, the panel would have to determine that the worker continued to sustain a loss of earning capacity beyond June 27, 2016 as a result of the workplace accident and that the worker required additional medical aid benefits arising from that accident beyond September 12, 2016. As detailed in the reasons that follow, the panel was able to make such findings and therefore the worker’s appeal is granted.

The panel reviewed the medical reporting in relation to the injury to the worker’s head sustained on June 23, 2016. We note that the worker sought medical attention immediately following the accident, reporting they experienced dizziness both right after the injury and several hours later when assessed at the hospital. The Emergency Treatment Record indicated the initial treating emergency room physician recommended the worker remain off work until June 26, 2016 and provided instructions to return to hospital, if necessary, which the worker did on the morning of June 26, 2016, reporting vomiting and nausea. The second treating emergency room physician ordered a CT scan, referred the worker to a concussion clinic for assessment, and provided a medical note for that day. At the time of the June 27, 2016 CT scan, the worker received a further medical note for that day. The panel noted that the WCB accepted the worker’s wage loss arising from the accident through June 27, 2016 based on the medical reporting.

After working a scheduled 5-hour shift on June 28, 2016, the worker sought medical attention from their family physician on June 30, 2016, and the file evidence indicates the worker called in sick that day. The family physician reported to the WCB that they treated the worker for a head injury, diagnosed as concussion, and that the worker could return to regular duties on July 4, 2016, confirmed by a medical note. The file evidence further confirms the worker returned to work as scheduled from July 5- 8, 2016, but worked only 1.5 hours on July 8 due to increasing symptoms. After the treating neurologist assessed the worker on July 11, 2016, they reported that this was the worker’s third concussion, noting the worker reported immediate dizziness and “a more severe crescendo headache – holocephalic in distribution” after the injury, with vomiting by June 26, and persistent facial numbness, more severe headaches and dizziness and increased exhaustion at that time, all of which significantly improved while away from work but worsened with the return to work the previous week. The neurologist, who had been treating the worker since November 2015, diagnosed “Concussion syndrome [from] closed head injury” with “exertional worsening of…symptoms, some of which predated [their] latest concussion.” The neurologist recommended two weeks away from work with bed rest and a gradual return to activity “…to avoid any worsening and prolongation of recovery as [the worker] is at risk for protracted course, given that this represent (sic) [their] third head injury in about 4 years (repeat concussions).” The concussion clinic physician’s report indicates that they assessed the worker on July 20, 2016 and provided a diagnosis of concussion, noting the worker’s previous head injury from 2012 and that they were followed by the treating neurologist “for chronic headache numbness and nausea”. The concussion clinic physician also recommended the worker remain off work, until reassessed by their family doctor in the “next few weeks” and that they follow up with the neurologist.

The file evidence further indicates that on August 9, 2016, the treating family physician referred the worker to an ENT specialist and indicated the worker should soon be ready for a graduated return to work, providing a further medical note for one week. On August 22, 2016, the family physician indicated that the worker could return to modified or alternate work with the concurrent employer initially, on a graduated basis, to increase as tolerated. The panel noted the file evidence that the worker also saw the ENT specialist on the same date and that they returned to see their family physician on August 31, 2016 and in late September 2016 again saw their treating neurologist although no reports have been provided to the WCB in relation to these appointments.

The panel also considered the findings from the WCB’s August 29, 2016 call in examination. The panel noted with some concern the WCB medical advisor’s comments in their report that the worker did not appear to understand their questions or the reason for the examination given the worker’s language capabilities, and that the examination nonetheless proceeded without ensuring that the worker understood, and without any offer to provide appropriate and apparently necessary interpretation for the worker. The panel further noted that the WCB medical advisor focused their opinion on the question of whether or not the worker had a concussion, applying the WCB’s healthcare “criteria used by many reputable medical organizations where there must be significant force to the head and evidence of disrupted brain function” to determine that the worker “would not meet the criteria to confirm concussion” as “Standing under a shelf and raising your head does not produce nearly enough force to injure the brain. Furthermore, [they] did not display any immediate evidence of impaired brain function.” Given this conclusion, the medical advisor went on to outline their view that the worker sustained no more than a forehead abrasion and possibly a contusion, which would have resolved within a couple of weeks. The panel noted the WCB medical advisor did not comment on the relationship between the worker’s prior head injuries and their current symptoms, nor on the differences outlined by the treating neurologist in significant detail between their pre-accident symptoms and their post-accident presentation.

The panel also reviewed the historical and most recent reports on file from the treating neurologist, and noted that the neurologist, in their May 5, 2023 report, confirmed their diagnosis of concussion arising from the workplace accident of June 23, 2016, noting the worker’s symptoms and presentation thereafter “…was likely a result of a cumulative impact of these events (history of prior concussion or head injury increases the risk of further concussions)….Please note that [the worker’s] symptoms prior to June 23, 2016 injury had improved over time and headaches were described as mild.” The neurologist also stated that the WCB medical advisor’s conclusion that the worker did not sustain a concussion in the workplace accident “…is pure speculation as every person’s brain is different in terms of vulnerability and there is no research that has demonstrated a specific amount of force necessary to result in such a brain injury nor the length of time necessary for recovery. People recover differently from concussions or brain injury.” The panel further noted that the worker had a scheduled follow up with the treating neurologist in late September 2016.

Given the deficiencies noted by the panel in the WCB medical opinion of August 29, 2016 and the responses to that opinion offered by the treating neurologist in their May 5, 2023 correspondence, as well as the neurologist’s prior reporting in relation to the worker’s pre-existing and post-accident condition, the panel prefers and gives greater weight to the opinion of the specialist who had been treating the worker since November 2015. We accept and rely on their opinion that the worker was not recovered from the compensable workplace injury by June 27, 2016 but required additional rest and recovery, including time away from work, with a gradual return to work to take place beginning in mid-August 2016, and note that this approach was supported by the concussion clinic physician and the treating family physician.

In terms of the worker’s loss of earning capacity related to the accident, the panel considered that the worker was scheduled to work on June 28, 2016 and worked their 5-hour shift that day but called in sick on June 30, 2016 to see their family physician, and then were removed from work through July 4, 2016. The worker again returned to work on July 5, 2016 working through to July 8, 2016, and experienced an increase in symptoms by July 8, 2016, such that they only worked 1.5 hours that day, with increased nausea, dizziness, and headache, which the medical reporting relates to the compensable injury. The panel also noted that the worker is employed on a half-time basis by the employer and has other, concurrent employment. The worker testified that when they were unable to return to work with this employer due to the injury, they also missed work with the other employer. We accept the worker’s testimony in this regard. The panel further noted the file evidence that the concurrent employer could not accommodate a graduated return to work schedule in August 2016 and the worker therefore sought to return to work with the accident employer on the graduated schedule, but this request also was not or could not be accommodated, and as such the worker did not return to their pre-accident work until some point in September 2016.

Based on the evidence before the panel, and on the standard of a balance of probabilities, we are satisfied that the worker continued to experience a loss of earning capacity after June 27, 2016 as a result of the workplace injury sustained in the compensable accident of June 23, 2016. We are further satisfied on the evidence before us that the worker required additional medical aid after August 2016 in relation to the compensable workplace injuries. Therefore, the worker is entitled to further wage loss and medical aid benefits in relation to the June 23, 2016 accident, and the appeal is granted.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 26th day of September, 2023