Decision #106/24 - Type: Workers Compensation

Preamble

The worker appealed from the decisions of the Workers Compensation Board ("WCB") that: 

1. In respect of the accident of April 25, 2018, they are not entitled to wage loss benefits after February 27, 2019; and 

2. In respect of the accident of July 10, 2018, their claim is not acceptable.

A hearing took place on November 18, 2024 to consider the worker's appeal.

Issue

1. Accident of April 25, 2018: Whether or not the worker is entitled to wage loss benefits after February 27, 2019; and 

2. Accident of July 10, 2018: Whether or not the claim is acceptable.

Decision

1. In respect of the accident of April 25, 2018, the worker is not entitled to wage loss benefits after February 27, 2019; and 

2. In respect of the accident of July 10, 2018, the claim is not acceptable.

Background

Accident of April 25, 2018

On April 27, 2018, the employer reported to the WCB that the worker sustained injury to their head in an incident at work on April 25, 2018, resulting in the worker being taken by ambulance to a local emergency department where they were diagnosed with a scalp laceration and minor head injury. When the worker saw their family physician on April 30, 2018, the physician diagnosed head injury/concussion and suggested referral to a concussion program. The WCB accepted the worker's claim on May 1, 2018.

At a physiotherapy assessment on May 8, 2018, the physiotherapist diagnosed head trauma with concussion, cervical strain and laceration and contusion to the head and face.

At the request of the WCB, the worker attended a call-in examination with a WCB medical advisor on May 17, 2018 who concluded the worker sustained a concussion from the workplace accident and referred the worker to a concussion clinic. Through the concussion clinic, a neurosurgeon assessed the worker on May 30, 2018 and confirmed the worker met the clinical criteria for a concussion as well as a whiplash-type injury, and further, recommended the worker engage in physical activity and continue physiotherapy to improve their post-concussion symptoms. At follow-up on June 14, 2018, the neurosurgeon noted progress with the worker's recovery and recommended a graduated return to work program could begin.

A WCB medical advisor reviewed the worker's file on June 27, 2018, concluding that a diagnosis of cervical strain was also related to the accident. On June 28, 2018, the treating family physician reported the worker's recovery was not satisfactory, as the worker was experiencing anxiety regarding their outlook and recovery and recommended a psychiatric evaluation with a trial of anti-depressant medication.

On July 3, 2018, the WCB advised the employer of the recommended restrictions, and the employer confirmed they could accommodate a return to work with graduated hours beginning July 9, 2018.

On July 16, 2018, the worker advised the WCB when they returned to work on July 10, 2018, after an hour they experienced dizziness, increased heart rate, and felt tired. An ambulance was called, and the worker was taken to a local urgent care centre. The worker advised they had not returned to work since then. The WCB received the ambulance report of July 10, 2018 which indicated that on arrival, the worker was sitting outside and reported feeling faint and falling after a stressful situation with a coworker. The worker reported a chronic headache and slight dizziness before the ambulance arrived. Personnel noted no weakness, slurred speech, tremors, or confusion and transported the worker to a local urgent care centre. A report from the centre noted "Patient with post concussive syndrome just returned to work and stressful interaction with coworker followed by recurrent episode of dizziness now resolved…Now asymptomatic."

The worker saw their family physician again on July 12, 2018 reporting a chronic headache. The worker also reported that at work on July 10, 2018, they went into their supervisor's office and were "…harassed then had a panic attack and fainted". The physician recorded the worker was "agitated upset anxious sadness excessive worry fatigue tired (sic)" and again suggested psychiatric services and/or counselling for the worker. The physician recommended the worker not return to work.

On July 26, 2018, the WCB case manager noted the worker would receive partial wage loss benefits based on the restrictions in effect from July 3, 2018 until the employer confirmed whether it could accommodate the worker within their restrictions and the WCB obtained further information regarding the worker's psychological condition.

The worker attended a call-in examination with a WCB psychological consultant on September 5, 2018. The consultant noted the worker was not reporting direct psychological effects from their April 25, 2018 injury and concluded that from a psychological perspective, there would be no restrictions related to the workplace injury. The consultant also noted the worker's complex and pre-existing mental health history and stated that the worker would present symptoms under stressful circumstances, such as the workplace injury. The consultant also noted that given the worker's major pre-existing mental health issue and the previous issues within the workplace, the worker “…will need to be carefully managed in these regards in assisting [them] in returning to the workplace in a safe and planned fashion." The consultant recommended ongoing follow-up for the worker's mental health issues and that the worker receive psychological treatment during a graduated return to work program.

On October 2, 2018, the treating neurosurgeon noted the worker reported "…continued stability” in their post-concussion symptoms, and on reviewing the WCB psychological call-in examination report, noted they were not aware of the worker's pre-existing mental health issues. The neurosurgeon recommended the worker's return to work be addressed after review of the recommendations from the consulting psychiatrist.

The WCB psychological consultant reviewed the worker's file on October 31, 2018 and opined the worker was "most likely" at their baseline psychological state and there was no reason to believe the worker had "any enduring psychological effect" from the compensable accident.

On November 2, 2018, the treating neurosurgeon noted the worker reported significant worsening of their concussion symptoms at follow-up on November 1, 2018 and reported their concern with the worker's mental health, recommending the worker seek urgent follow-up with both their treating family physician and their psychiatrist and not return to work until cleared to do so.

The WCB advised the worker on November 2, 2018 that a graduated return to work plan would commence on November 5, 2018, with temporary restrictions in place. The employer advised the WCB on November 6, 2018 that the worker did not return to work based on the advice of their treating healthcare providers.

On November 13, 2018, the worker requested Review Office reconsider the WCB's decision regarding the graduated return to work. The worker submitted they continued to suffer symptoms from the concussion and did not feel it was safe to return to work.

The WCB advised the worker on November 15, 2018 that the incident of July 10, 2018 was not related to the workplace accident, and therefore the worker was not entitled to full wage loss benefits after July 10, 2018. On November 28, 2018, the worker also requested Review Office reconsider the WCB's November 15, 2018 decision.

On January 10, 2019, Review Office determined that the worker did not have a loss of earning capacity after November 16, 2018. On April 15, 2019, the worker's representative requested Review Office reconsider their January 10, 2019 decision, relying on evidence that the worker's mental health worsened after the workplace accident, resulting in their failed return to work in July 2018. On June 11, 2019 Review Office determined that the worker was not entitled to full wage loss benefits after July 10, 2018 and did not have a loss of earning capacity after November 16, 2018.

On June 19, 2019, the worker's representative filed an appeal with the Appeal Commission. After a hearing on December 11, 2019 the Appeal Commission issued Decision No. 08/20, dated January 20, 2020, that the worker was entitled to full wage loss benefits after July 10, 2018 and had a loss of earning capacity after November 16, 2018.

The WCB contacted the employer on January 31, 2020 for further information on the worker's return to work. The employer indicated the worker returned to work on a graduated basis beginning on January 30, 2019 and continuing until February 26, 2019, and returned to full regular duties on February 27, 2019. On March 9, 2021, the WCB advised the worker they were entitled to full wage loss benefits from November 17, 2018 through January 29, 2019 and partial wage loss benefits from January 30, 2019 to February 26, 2019 based on the graduated return to work schedule. The WCB also determined that, based on a review of the worker's file by a WCB medical advisor on February 7, 2019, the worker recovered from the workplace accident and as such, was not entitled to further benefits.

On October 19, 2022, the worker requested Review Office reconsider the WCB's decision, noting they continued to experience the effects of the April 25, 2018 accident and required further benefits. On December 22, 2022, Review Office determined the worker was not entitled to further benefits.

On November 15, 2023, the worker's representative requested Review Office reconsider the December 22, 2022 decision, based on additional medical evidence indicating the worker continued to suffer the effects of the compensable workplace accident. The representative noted the August 2021 report from the worker's treating physiotherapist refers to the worker's ongoing headaches, dizziness and vision change and an October 2023 report from the worker's treating chiropractor notes symptoms consistent with post-concussion syndrome and a cervical spine injury. Review Office requested additional medical information from the treating physician and the concussion clinic, which was shared with the worker’s representative who provided further submissions on March 12, 2024 and April 19, 2024. On April 23, 2024, Review Office determined the worker was not entitled to wage loss benefits after February 27, 2019.

The worker filed an appeal with the Appeal Commission on July 23, 2024 and a hearing was arranged.

Accident of July 10, 2018

The worker filed a Worker Incident Report with the WCB on October 24, 2018, reporting injuries to their lower back, hip and left foot that occurred on July 9, 2018. The worker described returning to work after being away due to their other WCB claim and that, after speaking to their supervisor, they returned to their workstation, feeling very dizzy. The worker reported feeling that everything was spinning, and they were out of breath, and that they collapsed.

In the Employer's Accident Report provided on October 31, 2018, the employer indicated they were not aware of the worker’s reported difficulties with their back, hip and left foot as the worker had not reported an incident. The employer noted the worker’s head injury related to their previous WCB claim and that the worker reported vision difficulties and dizziness. On November 5, 2018, the employer clarified the worker returned to work on July 10, 2018, not July 9, 2018 as previously reported.

The WCB received a copy of the July 10, 2018 ambulance report on November 24, 2018. The report noted the emergency medical services personnel arrived to find the worker sitting at a table outside of the employer's location and that the worker reported they were walking to the table when they began to feel faint and fell. Witnesses confirmed the worker fell. The worker denied hitting their head or losing consciousness and advised that they had a stressful situation with a coworker right before the dizziness and fall occurred and were feeling stressed and anxious. The worker described pain to their face and a headache from their previous WCB claim. The ambulance report outlined the worker’s report of returning to work from a previous WCB injury, despite their physician advising them not to, and experiencing a stressful situation with their supervisor, after which they reported feeling dizzy and falling without hurting themselves. The emergency services personnel noted the vital signs within the normal range and transported the worker to a local hospital. The hospital report recorded the worker's "recurrent episode of dizziness" after a "stressful interaction with coworker" which was resolved and noted a normal neurological examination.

The worker saw their treating physician on July 12, 2018 reporting a chronic headache and that they had gone "…into supervisors office was harassed then had a panic attack and fainted” following which they were taken for emergency room care. The physician recommended a change in dosage of the worker's medications, counselling, and a different work area.

When the WCB spoke with the employer on July 17, 2018, the employer's safety officer confirmed the worker returned to work on July 10, 2018 and came into their office to discuss equipment they felt they needed. In that discussion, the worker felt they were being accused of causing their previous WCB claim and left the safety officer's office. The worker was then found lying down on the ground in another area and after speaking to the manager of that area, the worker left the building and collapsed on the grass. Two coworkers witnessed the worker falling and called an ambulance. The worker advised the coworkers they felt "…too stressed and dizzy, then collapsed." The safety officer also advised the WCB there was a disagreement with the worker over their restrictions and advised the worker had not returned to work since being taken to the hospital by ambulance on July 10, 2018.

The worker attended for a follow-up appointment with their treating family physician on July 26, 2018, who noted a decline in the worker's mental health with "work stress exacerbating preexisting mental health issues" and suggested this was a factor in the worker's unsatisfactory recovery.

The treating physiotherapist provided a copy of their chart notes to the WCB on November 28, 2018. The chart note for July 12, 2018 noted the worker’s report of an incident at work on July 10, 2018 and that they fell on their left hip. The September 21, 2018 note indicated increasing right elbow and left lower back pain when chopping wood and doing yard work. A September 27, 2018 chart note indicates the worker's report of left hip pain since their fall at work, which increases with prolonged walking and further noted that due to the worker's frustration with WCB, they did not want to report their left hip pain. An October 11, 2018 chart note indicated the worker was limited to walking for an hour due to low back pain.

The WCB advised the worker on December 5, 2018 that the claim was not acceptable as the evidence did not establish that the worker’s collapse was related to their work activities. On April 15, 2019, the worker's representative requested Review Office reconsider the WCB’s decision, submitting that the incident between the worker and the safety officer caused the worker to experience dizziness and fall to the ground, and that if not for the worker’s symptoms from their previous WCB claim, "…the workplace interaction that day would unlikely have impacted the worker to the extent that it did."

On June 7, 2019, Review Office found the worker's claim was not acceptable. The worker filed an appeal with the Appeal Commission on July 23, 2024 and a hearing 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 in effect as of the date of the worker’s accidents apply.

Section 4(1) of the Act provides for compensation to be paid by the WCB where a worker has sustained personal injury by accident arising out of and in the course of employment. Accident is defined in s 1(1) of the Act as follows:

“accident” means a chance event occasioned by a physical or natural cause, and includes 

(a) a wilful and intentional act that it not the act of the worker, 

(b) any 

(i) event arising out of, and in the course of, employment, or 

(ii) thing that is done and the doing of which arises out of, and in the course of employment, and 

(c) an occupational disease, 

and as a result of which a worker is injured.

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 represented themself in the hearing, providing a submission in support of their appeals and offering testimony through answering questions posed to them by members of the appeal panel.

The worker’s position in respect of the accident of April 25, 2018, is that they continue to experience symptoms and lingering effects of the head injury and concussion sustained in that accident, as well as ongoing neck and shoulder issues, which the worker submits are disabling and as a result, they are unable to work and have an ongoing loss of earning capacity arising from that accident. The worker relates their ongoing lower limb numbness, headaches, neck pain and tenderness at the point of impact to the injuries sustained in the workplace accident.

The worker’s position in respect of the accident of July 10, 2018, is that they sustained injury to their hip when they fell to the ground and that this injury arose out of and in the course of their employment. For this reason, the worker believes the claim should be accepted.

Employer’s Position

The employer did not participate in the appeal.

Analysis

There are two issues on appeal, in relation to two different accident claims made by the worker. In relation to the accident of April 25, 2018, the worker appealed the decision that they are not entitled to wage loss benefits after February 27, 2019. For the worker’s appeal on this question to succeed, the panel would have to find that the worker sustained a loss of earning capacity after that date which is causally related to the injuries arising from the accident of April 25, 2018. In relation to the accident of July 10, 2018, the worker appealed the decision that the claim is not acceptable. For this appeal to succeed, the panel would have to find that the worker sustained an injury in an accident arising out of and in the course of their employment. As detailed in the reasons that follow, the panel was not able to make such findings in relation to either claim and therefore, the worker’s appeal is denied.

While the worker is appealing WCB decisions in relation to two separate claims, the details of those claims overlap, and as such the panel considered the totality of the evidence, including information from both claim files as well as the worker’s testimony and submissions, in reviewing each appeal.

Accident of April 25, 2018: Is there entitlement to wage loss benefits after February 27, 2019? 

The WCB provides wage loss benefits when there is evidence that a worker has a loss of earning capacity because of injuries arising from a compensable workplace accident. The panel therefore considered whether the evidence indicates that the worker had a loss of earning capacity after February 27, 2019 and if so, whether that was related to the compensable injuries sustained in the workplace accident.

The panel considered evidence that the worker began their return to work on a graduated hours basis at some point in January 2019 and continued working on that basis through February 26, 2019, at which point the worker returned to their regular duties and hours. The evidence also confirms that as of February 27, 2019, the worker returned to their regular job duties and was working full hours. Further, the worker testified that they continued working until their employment was terminated at some point in 2020, which termination led to further labour relations proceedings and settlement with the employer.

The panel also noted that the evidence indicates the worker continued to seek medical treatment in relation to their ongoing headaches and cervical spine symptoms after returning to their work on a full-time basis, and as such we agree that the worker continued to experience some effects of those injuries after they resumed their job duties. The question the panel must decide, however, is not whether the worker was fully recovered at that time, but whether they had any loss of earning capacity after that date resulting from those injuries. The panel noted the treating family physician agreed on January 4, 2019 that the worker could return to work on a graduated basis and continue to follow up as needed. The panel also noted the medical reporting does not suggest any ongoing restrictions in relation to the worker’s compensable head injury, cervical spine strain or secondary psychological injuries beyond February 2019. The panel accepts the February 7, 2019 opinion of the WCB medical advisor that the worker’s ongoing headaches are “…not uncommon following a blow to the head but [are] not indicative of ongoing pathology”. We further noted that the treating neurologist reported on March 7, 2019, that the worker reported significant improvement in their post-concussion symptoms and that the return to work was “well tolerated” and confirmed this view in their April 16, 2019 report, noting they were “very pleased” with the worker’s outcome following concussion.

Based on this evidence, the panel is satisfied that the subsequent loss of earning capacity, following the termination of the worker’s employment in 2020 was not caused by or the result of their injuries sustained in the workplace accident of April 25, 2018 but rather was related to other employment issues outside the scope and jurisdiction of this panel. While the panel acknowledges that the worker has ongoing health concerns, including chronic headache and chronic shoulder and neck pain, we are not able to find that these concerns, even if related to the injuries sustained on April 25, 2018, gave rise to any loss of earning capacity after February 27, 2019.

Based on the evidence before the panel, and on the standard of a balance of probabilities, we are satisfied that the worker is not entitled to wage loss benefits after February 27, 2019. The worker’s appeal on this question is denied.

Accident of July 10, 2018: Is the claim acceptable? 

The panel reviewed the evidence to determine whether there is support for the worker’s position that the claim should be accepted based on injuries sustained when they fell on July 10, 2018. The panel considered firstly whether there is evidence of an accident arising out of and in the course of employment as defined in the Act. The panel accepts the evidence that in the course of the worker’s job duties on July 10, 2018, which was the first day of a return to work from the injuries sustained on April 25, 2018, the worker was involved in a stressful discussion with a safety officer and that afterward, the worker experienced dizziness and shortness of breath. We further accept that the worker then lay down for awhile in the workplace, and soon afterward got up and walked outside for some air to an area on the employer’s premises. The evidence indicates that when the worker went outside, they collapsed, fell onto grass, and asked nearby coworkers to call for an ambulance, which they did.

The panel is however unable to find that there is evidence establishing that an injury to the worker occurred because of the incident described. The medical reporting of the emergency personnel and emergency room professionals from July 10, 2018 indicates only that the worker experienced an increase in psychological symptoms, and did not report, at that time, any physical injuries. The treating family physician saw the worker on July 12, 2018 and recorded that the worker was “harassed” by a supervisor and then “had a panic attack and fainted”. A report from the treating neurologist of July 23, 2018 references this incident and describes an “acute worsening of [the worker’s] symptoms that required ambulance transfer…for evaluation.” While the worker stated their belief that they sustained injury to their hip because of this incident, the panel finds that the medical reports and clinical findings soon after that event do not support the worker’s position. Rather, the evidence indicates that the worker experienced psychological symptoms, which we note were already evident prior to these events.

The panel also noted that these circumstances were considered in relation to the accident of April 25, 2018, in Appeal Commission Decision 08/20. That appeal panel found that these circumstances demonstrated that the worker “…was not fit to return to work on July 10, 2018 as a result of an aggravation of [their] pre-existing psychological condition” and further, that the worker was entitled to full wage loss benefits after July 10, 2018 in relation to that accident. We accept and rely on the findings of that appeal panel that the incident on July 10, 2018 was related to the worker’s prior accident claim.

Based on the evidence before the panel and on the standard of a balance of probabilities, we are unable to find that the worker sustained injury as a result of an accident arising out of and in the course of employment on July 10, 2018. Therefore, the claim is not acceptable, and 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 29th day of November, 2024

Back