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 after May 25, 2023. A file review was held on November 9, 2023 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after May 25, 2023.

Decision

The worker is not entitled to wage loss and medical aid benefits after May 25, 2023.

Background

The WCB received an Employer’s Accident Report on November 16, 2021, reporting the worker slipped and fell on their right side after stepping onto a public sidewalk while at work on November 15, 2021. The employer noted the worker was transported to a local hospital by ambulance. In discussion with the WCB on November 24, 2021, the employer confirmed the worker was leaving the employer’s worksite when the incident occurred, and that the incident occurred on public property. The worker submitted a Worker Incident Report to the WCB on November 24, 2021, confirming the mechanism of injury and noting they were slowly walking down a set of stairs due to ice and snow, then “…next thing I knew I was laying on the sidewalk.” The worker noted there were no witnesses to the incident.

An Operative Report received by the WCB on November 26, 2021 outlined that on November 16, 2021, the worker’s right proximal femur fracture was treated by open reduction internal fixation. On November 29, 2021, the worker confirmed to the WCB that the injury occurred as outlined in their Report, and that there were no witnesses to the incident, but that a coworker found them and called an ambulance. The worker stated they were taken to a local hospital where they had surgery on November 16, 2021 and were discharged from hospital on November 25, 2021. The worker advised the WCB they were currently experiencing extreme pain in their right leg and using a walker. The WCB accepted the claim on December 2, 2021.

On initial physiotherapy assessment, the physiotherapist recorded that the worker was post-fracture/surgery, noted decreased range of motion and that the worker ambulated with a walker. At follow-up with the orthopedic surgeon on January 5, 2022, the surgeon noted x-rays demonstrated “…anatomic reduction and excellent position of hardware at the hip” and that the worker’s range of motion of their knee and hip were good. The surgeon encouraged the worker to continue to gradually progress in their walking. The worker continued with weekly physiotherapy. In reporting to the WCB related to the April 6, 2022 treatment, the physiotherapist indicated the worker’s progress was not satisfactory, possibly due to the worker’s age.

On April 7, 2022, the WCB contacted the worker's representative for a status update and to determine if the worker was intending to return to work. The representative advised that they witnessed the worker experiencing delirium after the November 16, 2021 hip surgery and noticed a gradual onset of memory loss in the worker. The representative noted the worker was missing what they described as a "chunk" of their memory related to the loss of a family member. The representative further noted they understood that post-operative delirium was common after hip surgery and could last up to 6 months with varying degrees of severity and that the worker's delirium had not changed. The representative noted the worker's hip was getting a bit better but was still in bad shape, and the worker continued with weekly physiotherapy. The representative advised that the worker’s family physician referred the worker for a CT brain scan. The CT brain scan of May 14, 2022 did not identify any acute intracranial abnormality. The treating physiotherapist requested an extension of treatment, which the WCB physiotherapy consultant authorized. The treating physiotherapist also confirmed that they had not witnessed any signs of dizziness when the worker was attending for treatment.

When the WCB contacted the worker's representative on October 17, 2022, the representative noted the worker was ambulating with a walker and a cane but was not steady on their feet and still experienced some pain in their hip. The representative further noted the worker had a lapse in their long term memory but did not notice any issues with their day-to-day memory. The representative also advised the worker was still waiting for an appointment with a specialist.

On November 28, 2022, the worker's representative emailed the WCB case manager to provide further information on the worker's issues after their surgery. They indicated the worker experienced "an extreme case of post operative delirium [emphasis in original] in the hospital (which I was a witness to as I was called in) that continued on after discharge."

When the worker attended follow-up with the treating orthopedic surgeon on November 29, 2022, the surgeon noted the hip fracture had healed and the worker’s range of motion was “fairly preserved”. The surgeon also noted their belief the worker had "…some neurocognitive issues that need to be resolved and investigated since they started postoperatively."

A neurologist assessed the worker on March 7, 2023, noting the worker's main complaint of a right hand tremor with activities such as writing or when holding an item like a cup in that hand, which the worker reported to occur intermittently over the previous 2 years. The worker also reported handwriting was difficult and that they struggled with buttons but not zippers. On examining the worker, the neurologist opined the worker's presentation was "…consistent with an asymmetrical parkinsonism which given the typical tremor characteristics would be most suggestive of Parkinson disease." The neurologist recommended an MRI study to investigate the worker's reported cognitive impairment "…especially given the post-operative onset that could potentially be from a strategic stroke." The MRI study of April 28, 2023 indicated "Mild cerebral and cerebellar atrophy. Moderate chronic small vessel ischemic changes. Small focus of gliosis right temporal lobe, presumably related to remote trauma given the location. Old infarct is an alternative possibility."

A WCB medical advisor reviewed the worker’s file on May 2, 2023 and concluded the diagnosis arising out of the November 15, 2021 workplace accident was a right proximal femur fracture, which was treated by open reduction internal fixation on November 16, 2021 in a procedure that the operative report indicated was uneventful. The medical advisor noted the treating physician indicated the worker experienced post-operative delirium, which slowly improved, and provided their opinion that the worker's current diagnoses were neurocognitive disorder and Parkinson disease. The medical advisor noted that cognitive impairment may arise related to Parkinson disease, and that both conditions are degenerative and can lead to reported good days and bad days in affected individuals. While indicating that "A fall and possible accompanying head trauma serves as a possible source of brain injury that could explain cognitive impairment and Parkinsonian symptoms", the medical advisor noted the March 7, 2023 report from the treating neurologist indicated the worker did not have a head injury, central nervous system infection, seizure, or stroke. Further, the medical advisor indicated that if the worker's neurocognitive impairment or Parkinson Disease was medically related to the worker's surgery after the November 15, 2021 workplace accident, there would have been a pathophysiologic event such as a stroke associated with the surgery or post-operative period to result in the development of those conditions; however, the treating neurologist's report did not indicate any such event.

On May 19, 2023, the WCB advised the worker that their entitlement to wage loss and medical aid benefits would end on May 25, 2023 as it had determined they were recovered from the compensable workplace injury and their ongoing difficulties were not related that accident. On June 14, 2023, the worker's representative requested Review Office reconsider the WCB's decision. In their submission, the representative outlined that the worker continued to suffer the effects of the workplace injury including pain and mobility issues and was also still suffering from cognitive issues related to the post-operative delirium, which was a direct result of the worker's requirement for surgery.

On June 26, 2023, Review Office requested a copy of the hospital records for the worker's admission following the November 15, 2021 workplace accident. Review Office requested that a WCB medical advisor review the report received on June 27, 2023, and the worker's file. In an opinion dated July 5, 2023, the medical advisor indicated their conclusion that there was no change to the May 2, 2023 opinion, commenting that "…neurocognitive disorder and Parkinsonism arise, in the vast majority of cases, without a relationship to trauma. When trauma is implicated in the development of these conditions, this occurs in the context of an identifiable brain lesion…". The medical advisor found the hospital report indicated no evidence of a stroke or other brain injury in relation to the November 15, 2021 workplace accident or the related November 16, 2021 surgery. The advisor went on to note the diagnostic imaging of the worker's brain demonstrated "…cerebral and cerebellar volume loss and a moderate degree of chronic small vessel ischemic changes. These chronic changes will have occurred over a matter of several years and do not relate to the November 15, 2021 workplace incident or the surgery that followed." After reviewing a copy of the medical advisor’s opinion, the worker’s representative provided a further response on July 11, 2023.

On July 13, 2023, Review Office determined the worker was not entitled to wage loss and medical aid benefits after May 25, 2023. Review Office found the hospital reports noted the worker's representative's reporting to an occupational therapist on November 19, 2021 that the worker's cognition had been declining over the previous couple of months. Further, a physician's assistant had noted the worker's delirium had resolved to baseline cognition on November 24, 2021. Review Office accepted the WCB medical advisor's opinions and found the worker did not have a further loss of earning capacity or requirement for further medical treatment in relation to the November 15, 2021 workplace accident. The worker's representative filed an appeal with the Appeal Commission on July 31, 2023 and a file review 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.”

The WCB established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Policy") to address eligibility for compensation in circumstances where a worker has a pre-existing condition. The 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 was represented in the appeal by their daughter, who provided a written submission in support of the appeal on June 14, 2023 and further outlined their position in the Worker Appeal of Claims Decision submitted on July 30, 2023.

The worker’s position is that they developed long-term memory delirium as a result of the compensable workplace accident of November 15, 2021 and the surgical procedure necessary to repair the hip fracture resulting from that accident.

The worker’s representative noted the worker experienced extreme post-operative delirium following the surgery, which continued after the worker was discharged from hospital. As a result, the worker was subsequently assessed in a geriatric mental health clinic and underwent a brain CT scan to rule out other issues. The worker’s representative noted the worker has regained some memory, but their memory has gaps in relation to significant life events from the previous several years, which have been particularly difficult for family members to have to fill in. Based on that initial assessment, the worker’s representative stated their understanding that the worker’s post-operative delirium could continue for 6 months or more and that the worker’s baseline would never be the same as before.

The worker’s representative noted that prior to the workplace accident, the worker was mentally and physically capable of returning to work, and that the worker was known to be one of the top employees in their workplace. The worker’s representative stated their belief that the onset of the worker’s Parkinson disease or Parkinson like syndrome resulted from the surgery required to address the worker’s right hip fracture. Further, they submitted that their research indicated that post-operative delirium is the most common complication of surgery for older adults and can lead to long-term health issues including cognitive decline and functional decline if not identified early and treated. The worker’s representative submitted that the diagnosis of Parkinson like symptoms is “a separate issue from the memory loss after the fall following the severe post operative delirium…” but noted that the worker’s right sided tremor also began after surgery.

The worker’s representative noted that the worker did not have Parkinson like symptoms prior to the surgery, and that it is well known that added stress and anxiety lead to an exacerbation of those symptoms, which has been the case for the worker. But for the fall and the resulting surgery, the worker’s post-operative memory loss would not have occurred. The worker’s representative pointed to the need for an assessment by a neurologist or psychiatrist by the WCB before dismissing the worker’s continuing symptoms as relating only to Parkinson disease.

Employer’s Position

The employer did not participate in the appeal.

Analysis

This appeal arises from the decision of the WCB that the worker is not entitled to wage loss and medical aid benefits beyond May 25, 2023. For the worker’s appeal to succeed the panel would have to find that the worker continued to require medical aid or to sustain a loss of earning capacity resulting from the workplace injury of November 15, 2021 after May 25, 2023. As detailed in the reasons that follow, the panel was not able to make such a finding and therefore the worker’s appeal is denied.

In reviewing the evidence, the panel considered firstly whether there is evidence that the worker recovered from the right femur fracture which the WCB accepted as compensable and arising out of the workplace accident of November 15, 2021. We note that the treating orthopedic surgeon indicated on November 29, 2022 that the worker’s right hip fracture has healed, and the worker’s range of motion is “fairly preserved”. The surgeon noted the worker to have “…an unsteady gait with an essential tremor” and that there was evidence of arthritic changes in the right hip but stated that the worker’s “…right hip fracture is likely not the underlying cause of [their] disability.” The panel also noted that the worker did not seek further physiotherapy in relation to that injury after September 2022. As such, the panel is satisfied that the worker had recovered from the right hip fracture sustained in the workplace accident of November 2021 well before May 25, 2023 and did not require any ongoing treatment or benefits in relation to that injury.

The panel also considered whether the more recently diagnosed conditions of neurocognitive disorder and Parkinson disease can be causally related to the compensable workplace injury. We find that there is no evidence of any trauma to the worker’s head arising from the workplace accident. Further, there is no evidence of any stroke, or other “pathophysiologic event” associated with the surgery or post-operative period.

The panel noted there is evidence of post-operative delirium following the November 16, 2021 surgical repair of the worker’s right hip. This is clear from a review of the hospital chart notes for the time before the worker was discharged on November 25, 2021. Beginning soon after being transferred to the ward from the post-operative recovery room, the chart notes contain comments indicating the worker seemed confused and agitated, which continued through the subsequent days. On November 19, 2021, the attending occupational therapist recorded that the worker “…appears to continue to be in delirium. As per daughter clients (sic) cognition in community has been declining over the past couple of months. Daughter reports home is “not in good shape.”” The occupational therapist recommended the worker’s cognition be assessed once the delirium cleared and the chart notes indicate the worker scored 19/30 on a MOCA assessment by the occupational therapist on November 24, 2021, which the occupational therapist noted would indicate a mild cognitive deficit, with short term memory most affected. A November 24, 2021 chart note from a physician’s assistant indicates the worker’s delirium to be resolved “at baseline cognition” and the next day, the worker was discharged from hospital.

The panel also considered the March 11, 2023 report from the treating family physician, which outlines that following their discharge from the hospital, the worker continued to notice memory issues and was referred for cognitive assessment and a brain CT scan. The March 2022 cognitive assessment indicated a MOCA score of 22/30 and the June 2022 assessment indicated an improved score of 24/30; however, the physician noted a more recent assessment indicated “amnesia and functional decline” as well as a “resting tremor” and the worker was referred to a neurologist for assessment. The panel also noted that the May 14, 2022 CT scan did not identify any acute intracranial abnormalities but did reveal some degenerative changes. The later medical reporting confirms that on further investigation, the worker was diagnosed on March 7, 2023 with Parkinson disease. The treating neurologist noted the worker’s memory loss “does not appear very characteristic for a subcortical dementia as PDD” and therefore requested a brain MRI “to further investigate the cognitive impairment especially given the post-operative onset that could potentially be from a strategic stroke.” An April 28, 2023 MRI study indicated mild cerebral and cerebellar atrophy, moderate chronic small vessel ischemic changes and small focus of gliosis in the right temporal lobe, “presumably related to remote trauma given the location. Old infarct is an alternate possibility.”

The panel also reviewed the opinions provided by the WCB medical advisor on May 2, 2023 and July 5, 2023. The medical advisor specifically considered whether the worker’s neurocognitive disorder and Parkinson disease could have developed as a result of the workplace accident and subsequent surgery. The medical advisor noted that these are degenerative conditions with “a tendency for increasing symptoms and declining function over time” and outlined that for there to be a relationship between the compensable accident and these diagnoses there would have had to be a head trauma sustained in the course of the accident, or there would have to be a pathophysiologic event, such as a stroke, associated with the surgery or postoperative period. The medical advisor indicated there was no evidence of any head trauma, central nervous system infection, seizure, or stroke in the accident or subsequently, in the surgery or postoperative period and therefore concluded it was most likely that the worker’s Parkinson disease and neurocognitive disorder “…arose without a relationship to either the fall or the surgery/postoperative period…” as is the case in the “…considerable majority of cases”. On later review of the MRI study from April 28, 2023, the medical advisor concluded the chronic changes demonstrated “will have occurred over a matter of several years and do not relate to” the workplace accident or the subsequent surgery.

The panel considered that both the treating neurologist and the WCB medical advisor considered the possibility that the worker’s onset of neurological symptoms might be related to a stroke, but we note that there is no evidence before us of any such event occurring in relation to the worker’s injury, surgical procedure, or post-operative recovery period. We further note that there is some evidence, as detailed in the worker’s hospital chart, that the worker had experienced some degree of cognitive decline prior to the accident.

Based on the evidence before the panel, and on the standard of a balance of probabilities, the panel is unable to find that the worker’s present medical conditions are causally related to the compensable workplace injury of November 15, 2021. Therefore, we find that the worker is not entitled to wage loss and medical aid benefits after May 25, 2023. The worker’s appeal is denied.

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 4th day of December, 2023