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 March 14, 2022. A hearing was held on March 25, 2024 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after March 14, 2022.

Decision

The worker is entitled to benefits after March 14, 2022.

Background

In a Worker Incident Report provided to the WCB on November 19, 2020, the worker reported a head injury sustained in an incident at work on November 15, 2020, which they reported to the employer on November 16, 2020. The worker reported being hit on the top left side of their head by a lift mechanism. In the report, the worker noted they completed their shift and went to bed, exhausted, when they arrived home after 11:00 p.m. At work the next day, they started to get a headache, and noticed a lump on the side of their head where the lift hit them. On arriving home after work, the worker examined the area and noticed a scratch and pus. The worker reported seeing their family physician who prescribed medication. The next day, as the swelling increased, the treating family physician recommended the worker attend a local emergency department where the worker was treated with oral antibiotics.

In a report from the treating physician to the WCB, the physician reported they diagnosed a head injury and scalp infection on the worker’s left parietal scalp after they were hit by a lift. The physician reported they cleaned the wound and prescribed antibiotics on November 17 2020. On November 19, 2020, at follow-up, the worker reported increasing pain at the laceration site with a headache and on examination, the physician noted swelling and redness at the laceration site and referred the worker to a local emergency department for ongoing treatment. At a further appointment on November 24, 2020, the physician provided a note to remove the worker from work until December 8, 2020. On January 8, 2021, the worker reported left facial swelling and pain, tiredness, left anterior chest pain and tightness, swelling, stiff fingers and toes to the physician. An examination did not take place as it was a virtual appointment, and the physician referred the worker for further testing.

In discussion with the WCB on January 13, 2021, the worker advised they continued to experience tightness, swelling and pain on the left side of their face, a lump on their jawline that was not healing, and daily headaches.

On January 21, 2021, the worker’s treating physician referred the worker to an internal medicine specialist who assessed the worker on March 24, 2021. The specialist noted the worker’s complaints of headaches, mainly in the neck and shoulders since sustaining head trauma on November 15, 2020. The physician noted the worker did not lose consciousness after the incident but also reported “Memory issues, eye puffiness, painful chewing, nasal stuffiness, tingling in the arms and main in a C7 distribution as well as ear pain, decreased hearing, tinnitus, throat pain, dizziness.” The internal medicine specialist noted normal neurological examination findings and concluded it would be difficult to attribute all of the worker’s symptoms to the November 15, 2020 incident, querying whether the worker sustained a concussion to account for the noted symptoms. The specialist ordered a CT scan which took place on March 14, 2021, with normal brain findings and cervical spine findings indicating “Mild multilevel degenerative spondyloarthropathy without evidence of fracture dislocation.” At the next appointment with the specialist on April 12, 2021, the worker reported memory issues, tingling arm, decreased hearing, tinnitus, and dizziness and the specialist indicated they suspected the worker had a concussion and referred them to a concussion clinic for further treatment.

A WCB medical advisor reviewed the worker’s file on May 19, 2021 and noted the initial diagnosis of left scalp contusion/abrasion with subsequent infected hematoma/cellulitis, which would typically heal in 2 to 4 weeks. In relation to the worker’s other reported symptoms, the medical advisor noted the internal medicine specialist was unable to make a definitive diagnosis but speculated the worker may have sustained a concussion. The medical advisor found there was no evidence to support diagnosis of a concussion as the worker did not suffer an immediate disruption of brain function and their symptoms manifested weeks after the incident. The medical advisor concluded the worker’s ongoing symptoms were not medically accounted for in relation to the workplace accident.

The WCB received a copy of the June 22, 2021 report from the concussion clinic physician on August 16, 2021. In the report, the concussion physician noted the mechanism of injury, that the worker reported they did not lose consciousness and had no amnesia but did develop a hematoma that became infected and required antibiotic treatment, following which the worker developed headaches, brain fog, tinnitus, tingling and dizziness. The physician noted the worker described current symptoms of headaches, intermittent dizziness, difficulty sleeping, generalized weakness, neck and back pain, numbness and tingling in both hands, hearing loss and tinnitus in both ears, tremors, abnormal movements, and balance difficulties. The concussion clinic physician concluded the worker likely had post-traumatic headaches with migraine characteristics due to post-concussion syndrome and recommended regular physiotherapy and vestibular therapy. At follow-up on September 8, 2021, the physician noted the worker’s report of ongoing symptoms and recommended continuing physiotherapy.

A WCB medical advisor reviewed the worker’s file on November 30, 2021 and concluded that a resolved scalp contusion/abrasion and infected hematoma/cellulitis were medically accounted for in relation to the November 15, 2020 workplace accident. The WCB medical advisor noted the worker’s initial report they thought nothing of the November 15, 2020 incident until the following day and there was no report of other symptoms until January 8, 2021. The medical advisor concluded there was no evidence to support the diagnosis of concussion and post-concussion syndrome.

After additional medical information was placed to the worker’s file including a November 24, 2021 brain MRI, a WCB medical advisor reviewed the information and the worker’s file on March 1, 2022, concluding that “The MRI findings are not congruent with the November 15, 2020 workplace injury” as reported by the worker, and did not indicate any “…material evidence of an acute brain injury caused by the workplace incident to account for the radiologic changes on the MRI.” The medical advisor concluded the worker’s current difficulties were not medically accounted for in relation to the workplace accident.

On March 7, 2022, the WCB advised the worker that upon medical review of their file, the WCB determined the worker was not entitled to further benefits after March 14, 2022 as they were recovered from the compensable injury.

On March 15, 2022, the worker asked the WCB to reconsider this decision, noting that due to their head injury, they were unable to communicate their symptoms clearly to their treating healthcare providers. On the same date, the WCB advised the worker that there would be no change to the decision they were not entitled to benefits after March 14, 2022. The WCB received additional medical information from the treating family physician on June 27, 2022, and on July 5, 2022, the WCB advised the worker there would be no change to the earlier decision.

On July 12, 2022, the worker requested Review Office reconsider the WCB’s decision, setting out in their submission that the treating healthcare providers indicated the worker sustained a concussion in the November 15, 2020 workplace accident and required further benefits. On September 1, 2022, Review Office determined the worker was not entitled to benefits after March 14, 2022. Review Office relied on the opinions of the WCB medical advisor that the worker sustained a scalp contusion/abrasion and infection/cellulitis as a result of the workplace accident but did not sustain a concussion. As such, the diagnosis of post-concussion syndrome and reported symptoms could not be medically accounted for or related to the workplace accident. The worker’s representative filed an appeal with the Appeal Commission on December 5, 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.”

Worker’s Position

The worker appeared in the hearing and was represented by a worker advisor, who provided an oral submission on behalf of the worker. The worker provided testimony through answers to questions posed by the worker advisor and by members of the appeal panel.

The worker’s position is that as a result of the accident at work on November 15, 2020, the worker sustained an injury to their head causing contusion and resultant cellulitis, as well as concussion, and that although the contusion healed and infection resolved, the worker continued to experience and be treated for symptoms arising from the concussion beyond March 14, 2022. The worker submits that the WCB’s determination they were recovered from the compensable workplace injury by that date is not supported by the evidence, especially the reporting by the treating neurologist, a specialist in concussion, and that the evidence rather supports a finding that the worker was not capable of a return to work at that time but required further medical treatment. As such, the panel should determine that the worker is entitled to benefits after March 14, 2022.

The worker offered testimony in the hearing as to the mechanism of injury and the symptoms experienced immediately afterward, and in the days that followed. The worker confirmed they had no prior experience of a head injury, and only limited experience of headache before the accident. The worker testified that after the injury, they did not return to work until December 2022.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The issue in this appeal is whether the worker is entitled to benefits after March 14, 2022. For the worker’s appeal to succeed the panel would have to determine that the worker continued to sustain a loss of earning capacity or to require medical treatment beyond March 14, 2022 as a result of the compensable workplace injury of November 15, 2020. As outlined in the reasons that follow, the panel was able to make such a finding and therefore the worker’s appeal is granted.

The panel considered whether the evidence supports the worker’s position that they sustained a significant head injury, or concussion, because of the workplace accident and continued to experience symptoms diagnosed as post-concussion syndrome beyond March 2022. We noted the chart notes from the worker’s initial treatment by the family physician on November 17, 2020 indicate the worker’s complaint of headache, but do not indicate any assessment of the worker in respect of a brain injury, rather focusing on the resultant laceration and infection. Likewise, the November 18, 2020 emergency treatment record notes the worker was hit in the head and focuses on the treatment of the resulting infection. The panel also considered the complete emergency room records obtained by the worker indicate their complaint of dull headache, occasional dizziness, and occasional blurred vision. When the worker saw the family physician again on November 19, 2020, they again reported headaches in addition to increasing infection symptoms. The emergency room record of the worker’s November 19, 2020 assessment indicate the worker’s report of numbness to hands and feet, pressure to ears, reoccurring headache of 3 days as well as providing details of treatment related to cellulitis.

The worker’s testimony is that when they were hit in the head by a moving large metal device, described as the size of “a four-slice toaster”, they immediately shouted out in pain and cursed, then took a seat for approximately 20 minutes. When the worker got up from the location of the accident, they walked using available handrails for balance, and felt wobbly with head pain. That pain later increased to throbbing at point of impact, and the worker felt dizzy, was sensitive to light, noted vision difficulties and trembling and a pounding, splitting headache. The worker described that on attending the emergency room on November 18, 2020, they were experiencing dizziness on turning head and blurred vision in both eyes on side to side movement. The worker stated they advised the family physician that “…my vision was off, my ear was clogged, my whole jaw line…felt like it was out of whack. My neck hurt. And there was tons of pressure in my head. And it felt like behind the eyes, massive headache” but noted the physician focused their immediate attention on the contusion and infection resulting from the accident. The family physician later acknowledged in their letter of June 25, 2022 that they were “…only able to make generic clinical diagnosis of head injury based on the presentation at the time of the head injury which could be due to brain concussion” and that the diagnosis of concussion was confirmed by the treating neurologist.

The panel noted that through December 2020, treatment of the worker focused on addressing the cellulitis infection, but the family physician’s January 8, 2021 report also noted the worker’s report of other symptoms, including reported tiredness, chest pain and tightness, and swollen, stiff fingers and toes, and at that time the family physician referred the worker for a brain CT scan and to an internal medicine specialist for further assessment. While the CT scan report of March 14, 2021 indicates no evidence of any “acute process”, the report indicates the scan was requested due to the worker’s persistent headache and nausea, post-concussion.

In reviewing the March 24, 2021 internal medicine physician’s report, the panel noted the worker’s report of symptoms following the accident, including “…headache mainly in [their] neck and shoulders…. Memory issues, eye puffiness, painful chewing, nasal stuffiness, tingling in the arms and mainly in a C7 distribution as well as ear pain, decreased hearing, tinnitus, throat pain, dizziness. [The worker] also describes fatigue and low energy and various aches and pains.” The specialist concluded that while not all the reported symptoms were likely attributable to “…to a single episode of head trauma on November 15, this is certainly the precipitating event. I wonder whether or not [they] suffered a concussion and many of these symptoms are a manifestation of that.” We further noted that upon later review of the CT scan findings, the specialist referred the worker to the concussion clinic for further assessment.

The panel noted that before the worker was assessed at the concussion clinic, a WCB medical advisor concluded on May 19, 2021 that “…there is no evidence that a concussion occurred” based on the absence of evidence of an immediate disruption of brain function “which is the WCB criteria for diagnosis of a concussion” and the fact the symptoms described did not manifest until weeks after the injury occurred. In this regard, we noted that there is evidence of symptoms that could be related to a diagnosis of concussion contained in the November 18 and 19 emergency room records, but this information was not on file at the time the medical advisor provided their opinion.

The panel also considered that on initial assessment by the concussion clinic neurologist on June 22, 2021, the neurologist concluded that the worker’s “headaches are most likely post traumatic headaches with migraine characteristics” and that the worker’s “symptoms are likely due to Post-concussion syndrome.” The neurologist at that time noted the worker’s report of “minimal improvement” since the accident with symptoms of headaches, brain fog, tinnitus, tingling, and dizziness continuing, made recommendations for treatment and ordered a brain MRI study.

The panel noted that while the neurologist continued to treat the worker for post-concussion symptoms through the balance of 2021, the WCB medical advisor also did not alter their opinion that the worker did not sustain a concussion in the workplace accident. We considered that on reviewing the November 24, 2021 MRI study findings, the treating neurologist concluded that “Given the MRI findings [the worker] is suffering from a moderate [traumatic brain injury]" but the WCB medical advisor concluded the “MRI findings are not congruent with the November 15, 2020 workplace injury” and that “There is no material evidence of an acute brain injury caused by the workplace incident to account for the radiologic changes on the MRI.”

Despite the WCB’s position the worker could not have sustained a concussion in the workplace accident, the evidence confirms the neurologist continued to treat the worker for post-concussion symptoms beyond March 2022, recommending treatment options which the worker was unable to pursue after their benefits were discontinued.

On review of all the evidence before the panel, we are persuaded that the mechanism of injury as described could have caused not only a laceration injury, with secondary infection, but also a traumatic head injury resulting in concussion, as was diagnosed by the treating medical professionals. There is no evidence of any prior head injury or concussive event that would or could account for their symptomatic presentation and the worker’s symptoms arose following the workplace accident in which the worker was hit on the left side of their head by a substantial metal object in motion. While there is no evidence of a loss of consciousness, the worker testified they experienced dizziness, balance issues, severe headache, and light sensitivity immediately or soon after this event occurred. This is further supported by the worker’s reports in the emergency room on November 18 and 19, within days of the accident. We have no reason to disbelieve this evidence. As such, the panel is satisfied that the worker likely sustained a concussion due to the acute trauma to their head caused by the workplace accident.

The panel is satisfied based on the medical reporting that the worker was not recovered from this injury by March 14, 2022. We noted the continuity of symptoms typically related to a concussive injury reported from shortly after the accident through to and beyond March 14, 2022. We further noted the evidence with respect to recommended treatment to resolve those symptoms, which the worker could not immediately access due to the WCB’s decision to terminate benefits. The panel also noted the absence of any recommendations that the worker return to work or even attempt a return by March 14, 2022.

Based on the evidence before us and on the standard of a balance of probabilities, the panel is satisfied that the worker was not sufficiently recovered from the workplace injury by March 14, 2022 to the point that they were capable of a return to their pre-accident employment and further that the worker required additional treatment in relation to that injury beyond that date. As such, we find that the worker is entitled to benefits after March 14, 2022. This is a point in time decision and the panel makes no findings as to the nature, duration, or extent of the worker’s entitlement to further benefits. The worker’s appeal is granted.

Panel Members

K. Dyck, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 19th day of April, 2024