Decision #35/24 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to further benefits in relation to the August 15, 2022 accident. A hearing was held on October 17, 2023 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further benefits in relation to the August 15, 2022 accident.

Decision

The worker is entitled to further benefits in relation to the August 15, 2022 accident.

Background

On August 19, 2022, the worker reported to the WCB they injured their head and neck in a motor vehicle accident on August 15, 2022 as they were returned to the employer's job site. The worker described:

We were rear ended and then pushed into the car in front of us. We were at a red light. I was driving when it happened. We all pulled over and exchanged information and then we continued back to the shop. Incident happened around 1:30pm. I didn't realize I was hurt at first, it took a few hours. No one else was injured.

The worker attended a local emergency department on August 16, 2022, and reported being in a motor vehicle accident the previous day, then 2 hours later, experiencing dull pain and stiffness, increased headache, dizziness and nausea. The physician examining the worker noted the worker reported no direct trauma to their body or head, their pupils were reactive to light and were symmetric, neurovascular testing noted symmetric power bilaterally and the worker was walking normally. The treating physician diagnosed a mild traumatic brain injury and recommended rest and pain medication. The worker attended for an initial chiropractor assessment on August 19, 2022 reporting soreness in their neck, headache, spine pain, occasional dizziness and fogginess. The treating chiropractor provided a diagnosis of a whiplash associated disorder, grade 2 and recommended the worker remain off work. On August 20, 2022, the worker attended an appointment with a family physician who diagnosed the worker with post traumatic brain injury and referred the worker for an urgent CT scan. The brain CT scan taken that day indicated "No evidence of acute large vessel infarction, intracranial hemorrhage, or mass lesion. Ventricles and basal cisterns are within normal limits." At follow-up appointments with the physician on August 24, 2022 and the chiropractor on August 26, 2022, continued symptoms of headache and dizziness were noted with improvement in pain.

At a further follow-up appointment on August 30, 2022, the treating physician noted dizziness, fogginess and headache but after examining the worker, found a normal neurological exam. Ongoing time off work was recommended. In speaking with the WCB on August 31, 2022, the worker confirmed the mechanism of injury and that no part of their body was directly impacted by the motor vehicle accident, noting "My body thrashed from the impact which caused whiplash." They further noted they initially felt fine, returned to the employer's job site and that is when they felt the onset of a "…really bad headache", which has continued since the August 15, 2022 accident. The worker described their current symptoms as headache, dizziness, confusion and fatigue with a stiff neck. The worker was seen by the family physician on September 1, 2022 who referred them to a concussion clinic.

On September 2, 2022, the worker's treating chiropractor advised the worker was cleared to return to work as of September 8, 2022 on sedentary duties. The chiropractor found the worker's back and neck were progressing with treatment, with the worker experiencing intermittent dizziness and fogginess, the frequency of which was diminishing. The chiropractor noted the worker had been diagnosed with post-concussion syndrome by their family physician on August 30, 2022. On September 12, 2022, the worker was seen by a neurologist at the concussion clinic. The worker reported the mechanism of injury to the neurologist, noting they did not strike their head, loss consciousness or suffer any post-traumatic amnesia. The worker advised a few hours after the motor vehicle accident on August 15, 2022, they developed a headache, dizziness, confusion, drowsiness and they vomited. A CT scan was noted to be normal. The treating neurologist indicated the worker's reporting of "…some migrating headaches as well as sensitivity to light and sound, fatigue and neck pain." After examining the worker, the neurologist noted a normal examination with "..some paraspinal muscle tenderness. Balance testing showed some postural instability and tandem stance." The treating neurologist opined the worker had a whiplash injury and recommended continued chiropractic treatment.

The worker attended for an initial physiotherapy treatment on September 14, 2022. The worker reported to the physiotherapist as they had not experienced an aggravation of their symptoms, they had returned to work and as a result, had developed a headache, which was persistent and worsening. The worker also complained of sensitivity to light and sound and stiffness in their neck, along with persistent light-headedness. The treating physiotherapist noted on cervical spine testing, loss of end range of motion in extension, flexion, rotation and sidebends and some cervical deficits. A diagnosis of whiplash associated disorder and cervical strain was provided and it was recommended the worker remain off work. On November 8, 2022, a WCB medical advisor placed a note to the worker’s file indicating the neurologist’s September 12, 2022 opinion was reviewed and they were in agreement the worker’s “…current symptoms are non-specific and likely relate to a neck sprain/strain injury rather than concussion.”

The worker attended for follow-up examinations at the concussion clinic on December 6, 2022, reporting ongoing persistent headaches and neck pain, for which the treating neurologist recommended a trial change of medication for symptom improvement and with their treating family physician on December 12, 2022 for a prescription for the new medication. The worker was seen by a second neurologist on December 15, 2022, who provided their report to the WCB on December 22, 2022. The neurologist recorded the worker’s reporting of “…an essentially lifelong predisposition to episodes of visual perceptive distortion, where objects/people appear further/closer or larger/smaller than in reality.” The worker also described “…episodes of classical migraine visual auras…”, chronic restless body/fidgeting, restless legs and a constant background “mumbling”…” with neck pain leading to daily headaches as a result of a “…relatively modest whiplash injury” a few months ago. The neurologist opined the worker had migraines with classic migraine auras and referred the worker for an MRI. No treatment was recommended but the treating neurologist recommended the worker consider lifestyle changes to improve their symptoms.

On January 4, 2023, the worker attended for a follow-up physiotherapy appointment complaining of daily headaches, sensitivity to light, persistent dizziness, and neck pain and stiffness. The treating physiotherapist examined the worker and found the worker had “…incredibly poor tolerance to busy environments, physical exertion and has physically intense job.” It was recommended the worker remain off work for a further 4 weeks and the treating physiotherapist noted the worker had reported experiencing mental health issues. On January 6, 2023, the worker was seen for a follow-up appointment with the concussion clinic neurologist. The neurologist noted the worker’s reporting of a little improvement in symptoms and recommended continued physiotherapy, regular use of prescribed medication and for the worker to remain off work awaiting the requested MRI study.

The WCB requested additional medical information in the form of chart notes from the worker’s treating family physician and treating chiropractor and on March 2, 2023, the worker was advised it had been determined they had functionally recovered from the August 15, 2022 workplace accident and their entitlement to benefits would end as of March 7, 2023.

The worker requested reconsideration of the WCB’s decision to Review Office on March 13, 2023. In their submission, the worker noted that due to their ongoing symptoms, they have been unable to return to work and do not feel they had recovered from the workplace accident. The worker advised their new treating chiropractor supported their injury involved issues with their neck and they had seen some minor improvement with treatment. As such, they believed they were entitled to further benefits. On April1 14, 2023, Review Office determined the worker was not entitled to further benefits. Review Office accepted and agreed with the medical evidence on file, including the opinions of the WCB medical advisor, the worker’s compensable injury was nothing more sinister than a whiplash/non-specific neck injury and their ongoing difficulties were not related to the August 15, 2022 workplace accident.

The worker filed an appeal with the Appeal Commission on July 10, 2023 and a hearing was arranged. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On February 26, 2024, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

Applicable Legislation and Policy

The Appeal Commission panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under that Act, and the policies established by the WCB's Board of Directors. The Act in effect on the date of the worker's claim of accident is applicable.

Section 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid. Section 4(2) provides that an injured worker 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 the 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.

The Act allows the WCB to provide a worker with medical aid that is considered necessary or advisable to cure or give relief to the 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.

The WCB has established Policy 44.10.20.10, Pre-existing Conditions (the "Pre-existing Policy"), which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Pre-existing Policy is identified, in part, as follows:

The Workers Compensation Board (WCB) will not provide benefits for disablement 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." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

Worker's Position

The worker represented himself at the hearing and was also supported by his spouse and father. The worker made an oral presentation to the panel in support of his position. The worker’s wife and father also made brief submissions. The worker provided testimony in the hearing through answers to questions posed by members of the appeal panel.

The worker’s position was that he has not recovered from the workplace accident. The worker described symptoms that he experienced after the accident and stated that, as of the date of the hearing, these symptoms continue. He described daily headaches, fatigue and neck, jaw and back pain.

The worker submitted that he did not have these issues prior to the accident and that he is entitled to further benefits.

Employer's Position

The employer did not participate in the appeal. The worker did submit as evidence a letter from the employer indicating his support of the worker and indicates that the worker was able to perform his work duties without issue prior to the accident. The employer also states in the letter that the work is physically demanding and unfortunately there is no light work that can be offered at this time.

Analysis

This appeal is in respect of the question of whether the worker is entitled to further benefits in relation to the August 15, 2022 accident. For the worker’s appeal to succeed, the panel would have to determine that the worker continues to experience the effects of the compensable workplace accident such that the worker either requires further medical aid or continues 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.

The worker and his spouse testified that the worker’s symptoms have continued and that he is unable to work. This evidence is confirmed by the reports of the treating physiotherapist who noted a lack of progress and that the worker’s constants headaches have continued.

The panel notes that the worker suffered a previous concussion and accepts that this could have left him susceptible to further concussions.

After reviewing the medical evidence before the panel and considering the worker’s submissions, the panel accepts that the worker is experiencing continuing symptoms from the accident and that the worker’s injury was not fully resolved when the WCB terminated the worker’s benefits. The panel specifically relies on the reports of the worker’s treating neurosurgeon which do not provide evidence of recovery. The physician references the worker’s continued persistent headaches and neck pain and states that the worker is not in a position to return to work.

As a result, the panel finds, on a balance of probabilities, that the worker has not recovered from the effects of the compensable injury, requires further medical aid and suffers a further loss of earning capacity. The panel therefore finds that the worker is entitled to further benefits in relation to the August 15, 2022 accident. The worker's appeal is allowed.

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 12th day of April, 2024

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