The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:

1. They are not entitled to benefits after April 21, 2021 in relation to their right shoulder complaints; and 

2. They are not entitled to further benefits in relation to their head and neck complaints.

A videoconference hearing was held on December 11, 2023 to consider the worker's appeal.

Issue

1. Whether or not the worker is entitled to benefits after April 21, 2021 in relation to their right shoulder complaints; and 

2. Whether or not the worker is entitled to further benefits in relation to their head and neck complaints.

Decision

1. The worker is entitled to benefits after April 21, 2021 in relation to their right shoulder complaints; and 

2. The worker is entitled to further benefits in relation to their head and neck complaints.

Background

The worker reported to the WCB on October 30, 2020 they slipped on a patch of ice while walking at work on October 28, 2020, falling backwards and hitting their head and upper and lower back. They noted coworkers came to help them after the incident, with the worker advising they didn’t feel a lot of pain at the time, felt a “…little out of it…” but advised they were fine. They finished their shift that day but on their way home, began to not feel well and asked their spouse to take them to a local hospital when they arrived at home. The worker noted they felt like they couldn’t walk properly, felt a little light headed and had a headache. The worker reported their current symptoms included ringing in their ears, headache, losing their balance and nausea. They noted their neck was sore when they moved their head a certain way as well.

The October 28, 2020 hospital report indicated the worker’s reporting a slip and fall at work that afternoon, where they fell backwards and hit the back of their head, and was experiencing mild dizziness, nausea and some photophobia with stiffness in their back and right shoulder. The treating emergency physician examined the worker and noted no bruising on the worker’s head or neck, no tenderness in the worker’s cervical spine, normal range of motion of the neck and good range of motion in the worker’s shoulder. The physician diagnosed the worker with a head injury and possible concussion. The worker was discharged with treatment instructions.

On October 30, 2020, the worker attended for an initial appointment with their treating family physician reporting complaints of a posterior headache, constant neck pain worsened with sudden movement, no visual changes but pain when touching their eyes. After examining the worker, the physician found stiffness on the paraspinal cervical spine and noted the worker was unable to actively move their neck or shoulders beyond 60 degrees. The physician diagnosed the worker with concussion syndrome, recommended physiotherapy and massage therapy once the worker felt better and no driving for two weeks, in addition to two weeks off work. At a follow-up appointment on November 9, 2020, the worker was placed off work until November 30, 2020. After discussing their claim with the worker on November 12, 2020 and confirming the mechanism of injury and treatment received, the WCB accepted the worker’s claim.

The worker attended for an initial physiotherapy assessment on November 16, 2020. The worker reported hearing/feeling a click when they moved their head too far left or right, sensitivity to light, headache, ringing in their ears, decreased balance, dizziness and nausea. The worker noted they were unable to do most tasks at home and were having trouble remembering. The physiotherapist examined the worker and noted limited flexion and abduction of the worker’s shoulder, also noting the worker was hesitating to move their shoulder due to neck pain. With respect to the worker’s neck, the physiotherapist found the right was more painful than the left side and lots of pain with rotation. A diagnosis of a cervical sprain/strain and head trauma was provided. At a follow-up appointment with the family physician, the worker’s reporting of improvement in their neck was noted with ongoing headaches and tinnitus. Due to the ongoing complaints, the worker was referred for an urgent CT scan and to the concussion clinic.

The worker underwent an x-ray of their cervical spine, bilateral shoulders and lumbar spine on November 26, 2020. Degenerative changes were noted in each area. The worker also underwent a CT scan of their brain and cervical spine on November 28, 2020. The scan indicated “No significant intracranial abnormality is identified”, along with degenerative changes in the worker’s cervical spine. The worker attended for a follow-up appointment with their family physician on December 15, 2020. The physician reviewed the diagnostic imaging with the worker and recommended continued physiotherapy treatment. A possible return to work on modified sedentary duties on January 5, 2021, was recommended. At a further follow-up appointment on December 30, 2020, the worker was placed on a new medication, and it was recommended the worker’s return to work be placed on hold until the possible effects of that medication could be determined.

On January 7, 2021, the worker attended for further physiotherapy treatment. The physiotherapist updated the worker’s diagnosis to include a possible right rotator cuff injury and acromioclavicular joint strain after the worker reported ongoing pain and symptoms in their right shoulder. Improvements in headache and neck pain was also noted, with the worker also reporting ongoing dizziness and difficulty concentrating. Decreased range of motion in flexion and abduction was found in the worker’s right shoulder, with weak internal rotation and tenderness in the worker’s glenohumeral joint. The physiotherapist noted a gradual return to work was suggested for the end of January 2021 by the worker’s treating physician. On January 14, 2021, the worker’s treating physician recommended an MRI for the worker’s right shoulder due to the worker’s reporting of decreased range of motion to rule out an impingement. The physician recommended the worker could return to work as long as they were able to do sedentary tasks with restrictions of no lifting, driving or sudden movements. The worker had a virtual appointment with a neurologist from the concussion clinic on February 10, 2021. The treating neurologist noted the worker’s reporting of their neck doing well and their return to work on February 22, 2021. The neurologist recommended the worker continue with symptom-limiting activities, physiotherapy and their return to work as tolerated.

A report was received from the worker’s treating family physician on February 26, 2021, noting the worker had returned to work on modified duties on February 24, 2021 using mostly their left hand. The worker reported increased pain in their right shoulder, headache and tinnitus. The physician found the worker’s right shoulder movement was restricted with abduction and extension causing pain and tenderness on palpitation to the acromioclavicular joint. Another week of modified duties was recommended with a reassessment to be done after that time. On March 5, 2021, the worker’s treating physician provided a note indicating the worker’s hours should be reduced to 4 hours per day for alternate days starting on March 8, 2021 for 2 weeks. A follow-up report with the worker’s treating neurologist was provided to the WCB on March 25, 2021 for a virtual appointment on March 11, 2021. The worker reported to the neurologist they were having a difficult time, with their headaches returning and persistent tinnitus and loss of balance. The neurologist recommended the worker continue their activities as tolerated and as the worker had not been able to tolerate headache medication, it was recommended their family physician refer the worker to a neurologist who specialized in headaches for further treatment. It was further recommended the worker discuss a reduced return to work schedule with their family physician of 2 hours per day, Monday, Wednesday and Fridays, with increases every 2 weeks as tolerated.

At the request of the WCB, the worker attended for a call-in examination with a WCB medical advisor on March 12, 2021. The advisor opined the worker’s diagnosis related to the October 28, 2020 workplace accident was a minor head injury and a neck strain. The advisor noted a suggested diagnosis of a concussion had been made however, it was noted the medical evidence immediately following the workplace accident did not indicate the worker lost consciousness, had an altered mental state or any focal neurologic deficits at the time. In addition, the medical advisor noted the worker did not suffer any amnesia and could describe in significant detail the mechanism of the injury and the events after. The advisor further provided the worker also continued with their job duties after the incident, which included driving, and noted that had the worker suffered a disabling brain injury as a result of the incident, they would not have been able to drive after the incident. Further, the WCB medical advisor found the worker sustained a strain type injury to their neck, which had resolved by the time of the call-in examination as the diagnostic imaging of November 28, 2020 indicated degenerative changes, with no acute findings related to the workplace injury and the examination of the worker’s neck at the call-in examination was noted to be essentially normal, with normal range of motion. The WCB medical advisor opined the worker had recovered from the October 28, 2020 workplace accident with no ongoing restrictions required.

The WCB advised the worker on April 14, 2021, based on the WCB medical advisor’s opinion, it had been determined they had recovered from the workplace accident and their entitlement to benefits would end as of April 21, 2021.

At the request of the worker’s WCB case manager, a WCB medical advisor reviewed additional medical information provided by the worker. A June 10, 2021 report from the worker’s treating sports medicine physician described the results of a right shoulder MRI and found no acute abnormalities; a further July 22, 2021 report from the sports medicine physician which attributed the worker’s right shoulder difficulties to right glenohumeral osteoarthritis and possible adhesive capsulitis; an occupational assessment completed by the worker’s treating physician on August 26, 2021 and August 30, 2021 report from the physician were noted to not include any new medical information; and lastly, a May 27, 2021 report from the concussion clinic neurologist which noted the worker’s reporting of resolution of their head and neck symptoms and which made note of the worker’s ongoing reporting of right shoulder pain. After review of the information, the WCB medical advisor opined on October 15, 2021 their previous opinion as set out after the March 12, 2021 call-in examination remained unchanged. On October 18, 2021, the worker was advised the WCB’s previous decision was upheld and they were not entitled to further benefits after April 21, 2021.

On November 23, 2021, the worker’s representative submitted a copy of the April 4, 2021 MRI of the worker’s right shoulder and a November 18, 2021 report from the worker’s treating physician in support of the worker’s ongoing right shoulder difficulties and requested reconsideration of the WCB’s decision. The physician detailed the worker’s reporting of shoulder difficulties and noted that while the worker was not completely disabled from working, they were having difficulty with their pre-accident duties and would likely require retraining to a sedentary job. On December 23, 2021, the employer’s representative provided a submission in support of the WCB’s decision, a copy of which was provided to the worker, with a further submission provided by their representative on January 12, 2022. Review Office determined on January 14, 2022, the worker was not entitled to benefits after April 21, 2021. Review Office found the diagnosis for the worker’s shoulder involved pre-existing osteoarthritis which was not caused by the October 28, 2020 workplace accident. Further, Review Office found the worker’s ongoing complaints of right shoulder difficulties one year after the workplace accident could not be accounted for in relation to the accepted strain type injury and as such, the worker was not entitled to benefits after April 21, 2021.

On July 29, 2022 the worker’s representative requested reconsideration of the WCB’s decision the worker was not entitled to benefits after April 21, 2021 with respect to the worker’s head injury. The representative noted the worker was still experiencing headaches, dizziness and balance issues as a result of the October 28, 2020 workplace accident and required further benefits for same. On August 2, 2022, Review Office returned the worker’s file to the WCB’s Compensation Services for further investigation.

The WCB requested and on August 8, 2022, received a copy of the July 21, 2022 report from a second treating neurologist who specialized in headaches. The worker reported falling and hitting the back of their head in October 2020 while at work. The worker noted they did not lose consciousness and did not have amnesia but developed headaches, photosensitivity, balance issues, tinnitus and head and neck pain after the incident, which symptoms had not fully resolved. After examining the worker, the neurologist indicated the worker had poor balance, and found the worker’s headaches were likely “…post traumatic headaches with migraine characteristics” and opined the worker’s symptoms were due to persistent post-concussion syndrome as a direct result of the October 28, 2020 workplace accident. The report and the worker’s file was again reviewed by a WCB medical advisor on November 24, 2022 who opined the new information did not change the earlier opinions and diagnosis of a concussion as a result of the workplace accident was not probable. On November 30, 2022, the WCB provided the worker with a decision letter upholding the April 14, 2021 decision they were not entitled to benefits after April 21, 2021.

The worker’s representative again requested reconsideration of the WCB’s decision to Review Office on February 7, 2023. The representative noted the worker’s second treating neurologist who specialized in headaches diagnosed the worker with post traumatic headaches indicating the worker continued to experience ongoing difficulties from the head injury sustained as a result of the October 28, 2020 workplace accident and as such, should be entitled to further benefits. On April 5, 2023, the employer’s representative provided a submission in support of the WCB’s decision, with a further submission provided on May 3, 2023. The worker’s representative submitted a response on May 10, 2023.

On May 11, 2023, Review Office determined the worker was not entitled to further benefits in relation to their head and neck complaints. Review Office accepted and agreed with the medical opinions provided by a WCB medical advisor and found the worker’s accepted diagnosis as a result of the workplace accident was a neck strain which the medical evidence supported the worker had recovered from.

The worker’s representative filed an appeal with the Appeal Commission on July 14, 2023 and a hearing was arranged.

Reasons

The Appeal Commission and this panel are bound by The Workers Compensation Act (the "Act"), the regulations made under the Act and the policies established by the WCB's Board of Directors.

A worker is entitled to benefits under section 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Section 4(2) provides that 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 section 37 of the Act. Section 27 of the Act sets out that the WCB may provide a worker with such medical aid as the board considers necessary or advisable to cure or give relief to a worker or for the rehabilitation of a worker. 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.

Worker’s Position

The worker was represented by a worker advisor who provided a written submission and made an oral presentation at the hearing. The worker and the worker advisor responded to questions from the panel.

The worker's position was that the worker had not recovered by April 21, 2021 and continues to experience symptoms related to their right shoulder. The worker also submitted that they continue to experience symptoms related to their head and neck.

The worker’s position was that the WCB medical advisor based their opinion on incorrect information, specifically that the right shoulder symptoms were not reported until November 26, 2020. The advisor opined that it is reasonable that if the workplace accident was the cause of the right shoulder injury then the right shoulder symptoms ought to have been reported in closer temporal proximity to the accident. The worker’s evidence is that shoulder symptoms were reported prior to November 26, 2020, and in fact the Emergency Room report of the day of the accident indicates that the worker described right shoulder pain. The worker described continued shoulder pain and stated that they experienced limitations, such as an inability to tie their hair up and that they required assistance from their spouse with dressing.

Evidence was presented about continuing headaches, balance difficulties and symptom continuity in relation to the worker’s head and neck pain. The worker indicated that prior to the accident they were able to perform their duties, which included physically demanding tasks, but now they are unable to perform these physically demanding duties.

The worker’s position was that the worker suffered a concussion and asked that the panel place little weight on the WCB medical advisor’s report, which states that a diagnosis of concussion is not probable as there was no reported loss of consciousness and no reported amnesia.

Employer's Position

The employer was represented by a representative who provided a written submission in advance of the hearing. The employer’s representative was unable to attend the hearing due to illness.

The employer’s position regarding the right shoulder complaints was that the opinion of the WCB medical advisor should be accepted, and that the right shoulder complaints are related to degenerative findings shown on the worker’s April 2021 imaging report. The employer’s position is that there were numerous conversations between the worker and the adjudicator or case manager and no complaints of right shoulder difficulties were made by the worker.

The employer’s position respecting the head and neck complaints was that the claim was accepted as a minor, contusion-type injury to the head and a neck sprain. The employer submits that the medical evidence is that the worker recovered from the neck strain and that any ongoing problems are due to pre-existing degeneration. The employer asks that the panel accept the opinion of the WCB medical advisor’s opinion, which states that a diagnosis of concussion is not probable in this case.

Analysis

The questions before the panel in this appeal are 1) whether the worker is entitled to benefits after April 21, 2021 in relation to their right shoulder complaints; and 2) whether the worker is entitled to further benefits in relation to their head and neck complaints.

For the worker’s appeal to succeed on the first question, the panel would have to determine that the worker continued to require medical aid for their right shoulder or continued to experience a loss of earning capacity beyond April 21, 2021 because of the right shoulder injury sustained in the workplace accident of October 28, 2020.

For the worker’s appeal to succeed on the second question, the panel would have to determine that the worker continued to require medical aid or continued to experience a loss of earning capacity as a result of head and neck complaints in relation to the head and neck injuries injury sustained in the workplace accident of October 28, 2020.

As detailed in the reasons that follow, the panel was able to answer both questions in the affirmative and therefore the worker’s appeal is granted.

Right Shoulder Complaints

The panel has reviewed the medical evidence on file and provided at the hearing and finds that there were right shoulder symptoms described by the worker immediately following the accident. Symptoms of right shoulder pain and stiffness were reported by the worker on the day of the accident while at the Emergency Room. The worker’s attending physician also noted, two days after the accident, that the worker was unable to actively move their neck or shoulders beyond 60 degrees. Further symptoms were reported by the worker prior to the November 26, 2020 date cited by the WCB medical advisor in their call in examination report.

The panel places weight on the worker’s treating physician’s diagnosis of frozen shoulder (adhesive capsulitis) being post-traumatic in nature, and specifically relating to the workplace injury. The evidence is that the worker had a decline in range of motion following the accident and the panel accepts the evidence of the treating physician that this is consistent with a diagnosis of frozen shoulder relating to an injury several months prior.

The panel notes that the worker has had continuing symptoms from the time of the accident. The worker received cortisone shots to deal with the pain, but the temporary relief from the shots would wear off. The evidence from the treating physician is that the worker continued to have persistent right shoulder pain in August 2022. The physician stated that the pain was still quite significant, and the range of motion was quite limited as recent as February 2023. The worker received physiotherapy to assist with their right shoulder symptoms. The physiotherapy notes are consistent with the physician’s notes and show a continuity of symptoms.

Based on the foregoing, the panel finds that the worker had not recovered from the workplace accident as at April 21, 2021 and is entitled to benefits after April 21, 2021 in relation to their right shoulder complaints.

The worker’s appeal is allowed as indicated above.

Head and Neck Complaints

Based on our review of the evidence on file and provided at the hearing, the panel finds that it is probable that the worker sustained a concussion at the time of the workplace accident. The panel relies on the evidence of the specialists that treated the worker and the diagnosis of post-concussion syndrome by her treating healthcare providers. The panel further notes that the worker was diagnosed with a possible concussion while in the emergency room just hours after the incident. The panel is also cognizant of the worker’s prior history of concussion and the increased risk of future concussions as a result.

The evidence on the file is that the worker has had continuing persistent headaches since the date of the accident and that the worker has been unable to perform their job duties as a result of the symptoms. The panel finds that the worker has not recovered from the workplace accident.

In arriving at that conclusion, the panel has considered the WCB medical advisor’s opinion that that the worker did not meet the criteria of an immediate alteration of mental state required for a diagnosis of concussion despite the worker describing feeling “a little out of it”, in shock, and feeling “like a bobblehead toy” after the workplace accident. The panel has measured the medical advisor’s opinion against the evidence provided that there does not have to be a loss of consciousness for the criteria of mental alteration to be met. As set out above, the panel attaches particular weight to the opinion of the worker’s specialists, who diagnose post-concussion syndrome and the evidence of the worker reporting symptoms of neurological deficit within 3 hours of the accident.

Based on the foregoing, the panel finds that the worker is entitled to further benefits in relation to her head and neck complaints which were a result of the October 28, 2020 workplace accident.

The worker’s appeal is allowed as indicated above.

Panel Members

R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 7th day of February, 2024