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 wage loss benefits for March 10, 11, 17 & 18 and after March 21, 2022; 

2. They are not entitled to benefits after July 25, 2022; and 3. They are not entitled to benefits for the diagnoses of concussion or post-concussion syndrome.

A hearing was held on November 20, 2024 to consider the worker's appeal.

Issue

1. Whether or not the worker is entitled to wage loss benefits for March 10, 11, 17 & 18, and after March 21, 2022; 

2. Whether or not the worker is entitled to benefits after July 25, 2022; and 

3. Whether or not the worker is entitled to benefits for the diagnoses of concussion or post-concussion syndrome.

Decision

1. The worker is entitled to wage loss benefits of March 10, 11, 17 & 18 and after March 21, 2022; 

2. The worker is entitled to benefits after July 25, 2022; and 

3. The worker is entitled to benefits for the diagnoses of concussion or post-concussion syndrome.

Background

The worker filed a Worker Incident Report with the WCB on March 10, 2022 reporting they sustained an injury to their lower back at work on March 8, 2022. In describing the incident, the worker stated that they “Slipped on the floor and fell pretty hard on my lower back and also hit my head. When I slipped I fell straight down lying on my back. The floor was slippery.” On the Report, the worker noted they were seen at a local clinic, who placed them off work until March 15, 2022. The worker described experiencing pain in their neck and noted the helmet they were wearing at the time of the incident had flown off during the fall. The employer submitted an Employer’s Accident Report to the WCB on the same date, reporting the same mechanism of injury of the worker slipping on the floor and falling on their back. The medical report from the clinic for the worker’s appointment on March 9, 2022 was also submitted to the WCB, indicating the worker reported slipping on the wet floor, hitting their back and head, and that their hard hat fell off upon contact with the ground. The worker complained of localized throbbing pain on the right side of their low-mid back area and the treating clinic physician found tenderness to palpitation over the worker’s upper lumbar vertebra, tender muscles on the right lumbo-sacral region, with normal reflex testing. The physician recommended rest and over the counter pain medication for pain and for the worker to remain off work until March 14, 2022.

On March 14, 2022, the WCB contacted the worker to discuss their claim and gather further information. The worker advised the WCB they worked the night shift, and the incident happened approximately 2 hours into their shift on March 8, 2022. The worker confirmed they slipped on the wet floor, fell on their back “pretty hard”, banged their head and their helmet flew off. The worker provided the WCB with the name of a co-worker who witnessed the incident. The worker further advised that they continued working after the incident, but after their break, began to feel uncomfortable and could hardly move. The worker then reported to the employer’s first aid station and was provided with compresses while waiting for the incident reports to be completed. The worker then left work and attended a clinic for medical treatment. On March 14, 2022 the worker described their ongoing symptoms as pain in their lower back on the right side and noted they missed work on March 10 and 11, 2022. Also on March 14, 2022, the employer provided the WCB with a Physical Functional Abilities Form, completed by the worker’s treating physician on March 9, 2022, indicating the worker should remain off work for 3 days until March 14, 2022, noting the worker requested the time off. The employer advised the WCB on March 14, 2022, the worker would not be returning to work until after March 15, 2022 due to a requirement to isolate. On March 16, 2022, the worker advised the WCB they would be returning to work that evening and stated they did not return on March 14, 2022 as they were required to isolate due to a possible COVID-19 exposure.

The worker attended for an initial chiropractic assessment on March 19, 2022, reporting a headache, pain in their left thigh and sharp pain in their mid-back after slipping and falling at work. The treating chiropractor also noted the worker’s report that they hit their head and lost their helmet when they fell. After examining the worker, the chiropractor found limited range of motion in the lumbar and cervical spine and that rotary and compressive tests were positive. The chiropractor provided a diagnosis of lumbar sprain/strain, sacroiliac joint dysfunction, whiplash associated disorder 1 and a left hip flexor strain. It was recommended the worker remain off work until April 10, 2022, but it was also noted the worker was capable of sedentary duties.

On March 23, 2022, the worker contacted the WCB to advise they had attended for a doctor’s appointment the previous day and had been diagnosed with post-concussion syndrome and depression and placed off work for 3 months. The WCB advised the worker they would need to receive the report for further investigation. On March 24, 2022, the employer provided the WCB with a detailed timeline of the worker’s time away from work since March 9, 2022. It was noted the worker was off work on March 9, 2022 and March 10, 2022 due to the work-related injury; was off March 11, 2022 to March 15, 2022 due to a COVID-19 quarantine; return to modified duties on March 16, 2022; was off March 17, 2022 and March 18, 2022 which with worker related to the injury; attended for a medical appointment on March 19, 2022 and provided the employer with a Physical Functional Abilities Form; attended work on March 21, 2022 on modified duties; did not attend for work on March 22, 2022 and then advised the employer on March 23, 2022 they had attended for medical treatment that date and had been placed of work due to post-concussion syndrome and depression. The employer noted they had not been provided with the medical note from that visit. The employer further noted they were willing and able to accommodate the worker with modified duties, within whatever restrictions may be in place and the worker advised their current symptoms included worsening symptoms in their neck, which had not been indicated previously. On March 31, 2022, the WCB advised the worker that they were not entitled to wage loss benefits for the period of March 9, 2022 to March 23, 2022. The WCB determined the employer was able to accommodate the worker within their restrictions and as such, the worker did not have a loss of earning capacity during that time.

An April 5, 2022 progress report from the worker’s treating chiropractor was received by the WCB on April 6, 2022. The report noted the worker’s treating physician had diagnosed the worker with a concussion and detailed the worker’s complaints of poor sleep, irritability, fatigue, loss of concentration, stiff neck, achy mid back, ringing in their left ear and mild headaches. The chiropractor noted the worker’s physician had placed the worker off work. An April 19, 2022 progress report from the worker’s treating physician indicated a diagnosis of post-concussion syndrome and whiplash and recorded the worker’s complaints of improved headaches, photophobia and neck stiffness, along with improvements in other symptoms such as agitation and anger. The physician noted a normal neurological examination except for pain on flexion and right lateral flexion in the worker’s neck. Continued time off work was recommended by the physician.

The worker’s file was reviewed by a WCB medical advisor on April 20, 2022. The advisor opined the worker’s diagnosis in relation to the workplace accident was a low back strain, and noted a mild neck strain could also be accounted for in relation to the accident, although it appeared to have resolved by March 14, 2022 based on the worker’s reported symptoms. The advisor opined the diagnosed low back strain would have resolved without a few days to a week and the medical information did not support the worker was totally disabled as a result of the workplace accident and light duties would have been appropriate. It was noted the treating physician had placed the worker off work for 3 days. The advisor went on to provide the medical information on file did not support a diagnosis of a concussion related to the March 8, 2022 workplace accident as the worker did not report any post-accident amnesia, “…immediate alteration in mental status or acute neurologic deficit…” and as such, that diagnosis was not medically accounted for in relation to the workplace accident.

The WCB requested and received a copy of the treating physician’s chart note for the worker’s appointment on March 22, 2022. The chart note indicated the worker’s temper was short, they were agitated and irritable, had a loss of self-control, was having nightmares, poor concentration, headaches, neck stiffness, emotional dysregulated and was not themselves. The chart note indicated the physician placed the worker off work. The Progress Report later received by the WCB on May 10, 2022, indicated the physician provided a new diagnosis for the worker at this appointment of post-concussion syndrome and whiplash. On May 5, 2022, the WCB provided the worker with a further decision letter advising it had been determined they were not entitled to wage loss benefits for the period of March 24, 2022 to May 5, 2022.

On January 6, 2023, the worker requested reconsideration of the WCB’s decision they were not entitled to benefits in relation to a diagnosis of concussion or post-concussion syndrome to the Review Office. On the same date, the Review Office returned the worker’s file to the WCB’s Compensation Services as an adjudicative decision had not been made with respect to the diagnosis of a concussion or post-concussion syndrome. The WCB requested the worker attend for a call-in examination with a WCB medical advisor, which examination took place on February 2, 2023. After examining the worker, the advisor opined the worker’s diagnosis with respect to the March 8, 2022 workplace accident was a low back and neck strain, with recovery of those strains expected within 3 to 4 weeks after the accident. The WCB medical advisor opined that the medical evidence did not support a diagnosis of concussion or post-concussion syndrome. The advisor found the evidence on file in close proximity to the workplace accident did not report an alteration of the worker’s mental status, or focal neurologic deficit, no reported loss of consciousness and no reported amnesia. The advisor noted the worker had detailed recall of the workplace accident and had not exhibited any evidence of brain dysfunction around the time of the accident or for several days after. It was not until a March 19, 2022 chiropractic assessment where report of the worker suffering from a headache was made, that the first symptom of a possible concussion was noted. The WCB medical advisor indicated that if the worker had sustained a concussion and/or brain injury during the March 8, 2022 workplace accident, it was likely symptoms would have been reported sooner than March 19, 2022. In addition, the WCB medical advisor also opined there was no medical evidence to support the worker was totally disabled from working as a result of the workplace accident. Given the length of time the worker had been off work, it was recommended that a “…gradual increase in activity over the course of 4-6 weeks” may facilitate the worker’s return to pre-accident functioning. On March 16, 2023, the worker was advised their claim for a diagnosis of concussion or post-concussion syndrome was not accepted and their ongoing difficulties, wage loss and medical treatment for same had been disallowed.

The worker again requested reconsideration of the WCB’s decision to the Review Office on June 13, 2023. The worker provided a detailed chronology of the events since March 8, 2022, including their medical treatment and letters in support of their concussion and post-concussion diagnosis from their treating healthcare providers. The worker noted that the employer’s disability insurer had accepted their claim for concussion and post-concussion and had been providing them with benefits. The worker further noted they received medical treatment for their ongoing neck symptoms until February 2023. On August 15, 2023, the employer provided an email message to the Review Office in support of the WCB’s decision. The Review Office determined on August 16, 2023, the worker was not entitled to benefits for the diagnosis of concussion or post-concussion syndrome. The Review Office accepted and agreed with the findings of the WCB medical advisor after the call-in examination and found the worker did not sustain a head injury/concussion in relation to the workplace accident and as such, was not entitled to benefits in relation to that diagnosis. The worker’s representative submitted a detailed letter with attached copy of the worker’s file from the employer’s disability insurer to the Review Office on January 24, 2024, and requested the Review Office reconsider the August 16, 2023 decision. On January 25, 2024, the Review Office advised the worker and their representative, the earlier decision remained unchanged as no new information was submitted for reconsideration.

The worker’s representative contacted the Review Office on May 1, 2024 to clarify additional issues under appeal. On the same date, the Review Office confirmed with the worker’s representative the additional issues under appeal were the worker’s entitlement to wage loss benefits from March 9 to 11, 2022, March 17 and 18, 2022 and after March 21, 2022 and the worker’s entitlement to further benefits after July 25, 2022. On June 26, 2024, the Review Office determined the worker was entitled to wage loss benefits for March 9, 2022 but was not entitled to benefits for March 10, 11, 17 & 18, 2022 or wage loss benefits after March 21, 2022 and was not entitled to benefits after July 25, 2022. The Review Office found the worker was entitled to wage loss benefits for March 9, 2022, as it was reasonable for the worker to miss time from work that day as a result of seeking medical treatment after the workplace accident. The Review Office further found after that date, that the medical evidence on file did not support the worker was totally disabled from working and the employer was able to accommodate the worker with light or modified duties and as such, the worker did not have a loss of earning capacity. The Review Office noted the worker had been diagnosed with a low back strain and had returned to work on modified duties before completely removing themselves from work. The Review Office further found the worker had been discharged from chiropractic care by May 16, 2022 with the treating chiropractor indicating the worker reported being 90% recovered from the low back strain and accordingly, there was no entitlement to further benefits after July 25, 2022.

The worker’s representative filed an appeal of both the Review Office decisions to the Appeal commission on July 16, 2024 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

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

Subsection 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.

Under subsection 4(2) of the Act a worker who is 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 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 allows the WCB to provide a worker with such medical aid as the board considers necessary to cure or provide relief from an injury resulting from an accident.

Worker’s Position

The worker appeared in the hearing with an advisor. The advisor made an oral submission to the appeal panel on behalf of the worker and provided a written submission in advance of the hearing. The worker provided testimony through answers to questions posed to them by the advisor and in response to questions from the appeal panel. A friend of the worker’s was also present as a support person for the worker.

With respect to the first issue, the worker’s position is that they are entitled to wage loss benefits for March 10, 11, 17 and 18, and after March 21, 2022 as the worker was medically authorized to remain off work in relation to the March 9, 2022 workplace accident. The worker’s evidence is that they attended a hospital immediately following the incident and the treating physician recommended the worker be off work for three days. The worker’s evidence is that they were off work on March 17 and 18 due to their injury and they attempted light duties at work on March 21, 2022, but struggled to complete the tasks due to the glare of the computer monitor and their ongoing back and neck pain. The worker submits that these symptoms caused them to seek further medical attention, and their treating physician indicated on March 22, 2022 that the worker should remain off work and follow up in two weeks.

The worker states that they were diagnosed with post-concussion syndrome and whiplash at the March 22, 2022 appointment with their physician. The worker is seeking that the appeal panel rely on the opinion of their treating physician, who was directly involved with examining and treating the worker.

With respect to the issue of whether or not the worker is entitled to wage loss benefits after July 25, 2022, it is the worker’s position that the worker had not recovered from the March 9, 2022 workplace incident by July 25, 2022. The worker submits that they were still experiencing symptoms, including daily headaches, insomnia, poor concentration, decreased energy and was emotionally unsettled. The worker further submits that due to these ongoing symptoms their treating physician referred them to a psychiatrist on July 28, 2022. The worker’s evidence is that they attempted shifts with modified duties after July 25, 2022 but experienced increased symptoms during or after their shifts. The worker only returned to regular shifts (working modified duties) on November 11, 2022.

With respect to the issue of whether or not the worker is entitled to benefits for the diagnoses of concussion or post-concussion syndrome, the worker submits they are entitled to benefits. The worker’s evidence is that their helmet flew off when they fell. The position of the worker is that it is reasonably expected that the worker would have a brain injury from falling on a concrete floor without a helmet. The worker submits that their treating family physician diagnosed them with post-concussion syndrome and whiplash on March 22, 2022 and the worker’s treating physiotherapist agreed with the physician’s diagnosis. The worker also submits that they were capable of working their full-time regular duties prior to the March 9, 2022 workplace accident. The worker states that they were healthy and not taking any medication or receiving any medical treatment prior to that date.

The worker states that the evidence supports the worker experienced a loss of earning capacity and required medical treatment as a direct result of the March 9th, 2022 workplace accident. The worker is seeking that the panel grant the workers appeal for further benefits.

Employer’s Position

The employer was represented in the hearing by its legal counsel and its senior manager for human resources. The employer’s counsel provided an oral submission to the appeal panel on behalf of the employer and provided further information in response to questions posed by members of the appeal panel.

The employer’s position is that the decision should be upheld. The employer states that the injury report completed by the worker with the assistance of the worker’s lead hand indicated a slip and fall with a low back injury. The employer states there was no additional information provided with respect to any other symptoms.

The employer states that they based their modified duties on the medical information received and stresses that they made a constant effort to support the worker and continually provided safe and suitable accommodations in terms of modified duties for the worker.

Analysis

The first issue before the panel is whether or not the worker is entitled to wage loss benefits for March 10, 11, 17 & 18 and after March 21, 2022. For the worker’s appeal to be successful, the panel must find, on a balance of probabilities, that the evidence supports the worker is not capable of returning to work. The panel is able to make that finding, for the reasons that follow.

The evidence before the panel supports that the initial physician that treated the worker following the incident recommended and authorized three days off work. The WCB noted that the worker’s functional abilities form of March 9, 2022 noted that the worker requested time off work. The panel is not concerned of the mention of a request for time off work as the panel relies on the opinion of the treating physician who would have properly assessed the worker during the medical appointment in order to authorize the time off work. Therefore, the panel is of the view that the worker is entitled to wage loss benefits for March 10 and March 11 as that time off work relates to the injury the worker sustained at work.

The panel has also considered the totality of the medical information and the evidence provided by the worker respecting the mechanism of injury and their ongoing symptoms and is of the view that the worker had not recovered from their injuries by March 17 and March 18 and after March 21, 2022. The panel notes that when reporting to their treating physiotherapist on March 19, 2022 and their treating physician on March 22, 2022 the worker continued to describe ongoing symptoms. The worker’s treating physician made a diagnosis of post-concussion syndrome on March 22, 2022. Therefore, the worker is entitled to wage loss benefits for that time period.

The second issue before the panel is whether or not the worker is entitled to wage loss benefits after July 25, 2022. For the worker’s appeal to be successful, the panel must find, on a balance of probabilities, that the evidence supports the worker is not capable of returning to work. The panel is able to make that finding, for the reasons that follow.

The panel again reviewed the medical evidence available respecting the period of time following July 25, 2022 and note that the evidence supports that the worker was still experiencing symptoms. The treating physician stated in their letter dated October 14, 2022 that the worker was still experiencing daily headaches, insomnia, poor concentration, among other symptoms. The symptoms were of such intensity that the worker was unable to work and therefore, the treating physician referred the worker to a psychiatrist on July 28, 2022. The worker attempted to work modified duties on several occasions following July 25, 2022 but experienced an exacerbation of symptoms. For these reasons, the panel finds that the worker had not recovered from the workplace injury sustained on March 9, 2022 and is thus entitled to wage loss benefits after July 25, 2022.

The third issue before the panel is whether or not the worker is entitled to benefits for the diagnoses of concussion or post-concussion syndrome. For the worker’s appeal to be successful, the panel must find, on a balance of probabilities, that as a result of the compensable workplace accident of March 9, 2022 the worker sustained a concussion or symptoms of post-concussion syndrome. As outlined in the reasons that follow, the panel was able to make such findings and therefore the worker’s appeal is granted.

The worker’s evidence is that they slipped and fell while working due to cleaning products causing a slippery surface. The worker fell onto concrete and noted that their helmet came off during the process. There was no witness to the incident, however the evidence before the panel is that a co-worker noted that the worker’s helmet had come off as a result of the slip and fall.

On the basis of the medical reporting most proximate to the time of injury, testimony of the worker, and the mechanism of the injury the panel is satisfied that the worker sustained a head injury that was severe enough to cause a concussion. The panel has heard evidence of the symptoms the worker experienced, namely pain and stiffness in their neck, headaches, poor concentration, insomnia and issues with their mood. In a letter dated July 5, 2023 the treating health care professionals noted that at the appointment in March 2022 the worker presented with symptoms from each of the four categories (physical, cognitive, sleep and mood and behavioural) typically associated with concussion.

Based on the testimony of the worker and the chart notes from the physiotherapist on March 19, 2022 and the physician on March 22, 2022, the panel acknowledges that symptom onset after a mild traumatic brain injury and concussion can be delayed and finds that the symptoms were present shortly after the injury which required the worker to seek out medical treatment.

The panel accepts the opinion of the treating healthcare professionals who assessed the worker within a few weeks of the accident and places greater weight on their opinions than that of the WCB medical advisor, who assessed the worker almost one year after the injury occurred. The panel is satisfied that the evidence of the treating physician and physiotherapist supports the diagnosis of concussion resulting from the workplace injury of March 9, 2022. On this basis, and on the standard of a balance of probabilities, we find that the worker is entitled to benefits for a diagnosis of concussion.

The worker’s appeal is therefore granted on all three issues.

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 17th day of January, 2025