The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker appealed the decision of the Workers Compensation Board ("WCB") that they are not entitled to wage loss and medical aid benefits after June 24, 2021. A videoconference hearing took place on January 15, 2025 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss and medical aid benefits after June 24, 2021.

Decision

The worker is entitled to wage loss and medical aid benefits after June 24, 2021.

Background

In a Worker Incident Report to the WCB on February 24, 2021, the worker reported injuries from an incident at work on February 23, 2021. The worker described being assaulted during work by a client who punched the left side of their face, hitting their nose and eye, and also on the right side of their head. The worker described feeling lost for a minute after one of the hits but did not fall. After the end of their shift, the worker sought medical treatment and was placed off work. The worker described having pain in their left eye, nose, shoulders, neck, arms, and headache, with difficulty seeing, not being able to drive, and swelling and bruising around their left eye and their nose.

In discussion with the WCB on February 24, 2021, the worker confirmed they went to the hospital right after the incident at the end of their shift, noting their nose was bleeding, they had a swollen face, their left eye was bruised and swollen, and they had difficulty driving due to pain and dizziness. At the hospital, the worker was diagnosed with a broken nose and advised to remain off work for one week. The worker noted they were taking pain relief medication.

The Emergency Visit Summary indicated the worker’s report of an assault at work on February 23, 2021, by an individual who used their fists to strike the worker’s left temple, ear occiput and nose, causing a bleeding nose that stopped with application of ice and pressure. The treating physician reported the worker denied losing consciousness, having a headache, dizziness or vertigo but was experiencing significant pain to their nose and left occiput area, noting their vision was “slightly off.” An x-ray indicated a fracture of the right nasal bone, and a CT scan indicated “No intracranial hemorrhage….” The report outlined diagnosis of an undisplaced nasal fracture and concussion, and that the worker should remain off work until March 1, 2021 and be reassessed by their family physician before returning to work.

On February 25, 2021, the worker’s family physician examined the worker, noting bruising on the left side of the worker’s face, nose, and infraorbital area but no lacerations, lots of swelling on the bridge and the left side of their nose and normal visual acuity. The physician recorded mild tenderness over the scapular area, with slight restriction in the worker’s range of motion and pain on movement in their neck and back. The physician diagnosed a left nasal bone fracture secondary to trauma, left neck and upper back pain and noted no signs of concussion. The physician referred the worker on an emergent basis to an Ear, Nose and Throat (ENT) specialist, who on the same day performed a closed nasal reduction and noted some occipital bone tenderness and normal neck range of motion without significant tenderness.

On assessing the worker on February 26, 2021, the physiotherapist recorded the worker’s report of pain in their face and neck and facial pain and swelling after nasal surgery. Clinical findings included muscular pain in the head and neck with all movement, decreased cervical spine active range of motion, upper left extremity radicular symptoms, facial/nose swelling and bruising and minimal concussion signs. The physiotherapist diagnosed whiplash associated disorder, grade 2 and grade 1 concussion.

On March 12, 2021, the worker advised the treating family physician that while their pain was improving, they continued to experience headache and swelling. The physician noted slight bruising below the left eye with no tenderness, swelling and tenderness at the nasal bridge, equal pupils reactive to light, and no dizziness or vertigo, and provided that the worker should remain off work until March 31, 2021. On March 31, 2021, the physician advised that the worker remain off work until April 30, 2021.

The treating ENT specialist reported an uncomplicated closed nasal reduction procedure on February 25, 2021, and in an April 4, 2021 report, reported the worker had intact nasal function.

On April 30, 2021, the worker reported to the treating family physician that their headaches were ongoing and not improving. At this time, the physician prescribed pain medication, recommended reassessment in 1 to 2 weeks, and referred the worker for a CT scan, which took place on May 4, 2021 and indicated a normal scan of the brain and “Normal appearing facial bones with the exception of what is felt to be an undisplaced fracture involving the right side of the nasal bone.”

After a review of the worker’s file on June 8, 2021, a WCB medical advisor outlined the opinion that the worker sustained a nasal fracture and neck strain as a result of the accident, but the evidence did not support diagnosis of concussion given there was no indication of a loss of consciousness, amnesia or neurocognitive deficit. The medical advisor stated recovery from the nasal fracture as treated should occur within a few weeks with no restrictions required in relation to that injury. The medical advisor also noted as of May 3, 2021, there was no evidence of neck impairment.

On June 17, 2021, the WCB advised the worker they were not entitled to benefits after June 24, 2021 as it had determined the worker recovered from the compensable injuries.

The WCB received a June 30, 2021 report from the worker’s treating family indicating a referral for a brain MRI study which took place on June 23, 2021 and that a consulting neurologist recommended referring the worker to a concussion clinic. The MRI study indicated no acute findings but did find “Suspicious residuals of a small right inferior parietal subdural hematoma” and the family physician advised the neurologist indicated no surgical intervention was required but recommended a repeat MRI in 2 months. The family physician provided the worker should remain off work for 1 month pending assessment by the concussion clinic. On July 7, 2021, a neurosurgeon at the concussion clinic assessed the worker, noting their report of ongoing bifrontal and parietal headaches, with some nausea and dizziness, difficulty with memory and some decreased eyesight in their left eye. Based on their examination findings, the neurosurgeon recommended the worker follow-up with the family physician for medication to address their headache and diagnosed persistent post-concussion symptoms.

A WCB medical advisor reviewed the worker’s file on July 27, 2021 and concluded that it was speculative to relate the MRI findings to the worker’s ongoing headache and to the workplace accident. The medical advisor requested review of the imaging by a WCB neuroradiology consultant. The medical advisor acknowledged the diagnosis of post-concussion symptoms but confirmed the worker did not meet the WCB’s criteria for a concussion diagnosis. The WCB received further medical information including an August 2, 2021 brain MRI study indicating “No intracranial mass or other pathology is identified.” The WCB neuroradiology consultant reviewed the available imaging and provided their opinion on September 2, 2021 that “…there is no evidence of a subdural hematoma overlying the right perital (sic) lobe. No definite post-traumatic injuries are identified. In addition, no nasal fracture is identified.” On September 8, 2021, the WCB advised the worker that there would be no change to the decision they were not entitled to further benefits after June 24, 2021.

The WCB received further medical information from the treating family physician on October 15, 2021 and from the treating neurosurgeon on October 27, 2021, which was reviewed by a WCB medical advisor on December 6, 2021. The medical advisor concluded the worker’s reported increase in non-specific symptoms was “…not concordant with the natural history of concussion” and found the medical evidence did not support the worker sustained a concussion on February 23, 2021. On December 6, 2021, the WCB advised the worker there would be no change to the earlier decisions.

On August 17, 2022, the worker submitted further medical information from their family physician, ENT specialist and neurologist for the WCB’s review and on August 27, 2022, the WCB again advised the earlier decisions remained unchanged.

On October 11, 2022, the worker submitted a September 9, 2022 report from another treating neurologist and a September 20, 2022 report from their treating ENT specialist and requested the WCB review their earlier decisions. At the request of the WCB, the worker attended a call-in examination with a WCB medical advisor on December 15, 2022. The WCB medical advisor spoke with the treating neurologist who noted the worker’s report the headaches began at the time of the workplace accident and stated that post-traumatic headaches usually begin at the time of trauma. The treating neurologist advised among individuals with chronic headache, most begin as constant tension type of headaches with migraine-type headaches occurring occasionally. The neurologist advised they had not evaluated the worker’s capacity to perform modified duties but that a trial of sedentary work could be attempted based on the worker’s tolerance. On February 14, 2023, the WCB advised the worker there would be no change to the earlier decisions they were not entitled to further benefits after June 24, 2021.

On February 24, 2023, the worker requested Review Office reconsider the WCB’s decision noting they continued to experience symptoms from the workplace accident, as supported by their treating healthcare providers and as such, required further benefits. Review Office determined on May 30, 2023 that the worker was not entitled to wage loss and medical aid benefits after June 24, 2021. The worker’s representative filed an appeal with the Appeal Commission on August 16, 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 (the “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 accident 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. 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 was represented in the hearing by a worker advisor who provided a submission detailing the worker’s position. The worker attended the hearing and offered evidence in response to questions posed to them.

The worker’s position is that they continued to experience debilitating symptoms related to the injuries they sustained in the workplace accident of February 23, 2021 such that they were unable to participate in any work and required ongoing medical treatment for those injuries beyond June 24, 2021. As such, they should be entitled to further benefits beyond that date.

The worker advisor relied on the medical reporting in evidence and the worker’s testimony as establishing that the worker had ongoing treatment with respect to the left ear, nasal fracture and headache arising out of the workplace accident well beyond the benefit termination date, and that the worker’s treatment providers did not recommend the worker return to work in June 2021. The worker advisor noted the WCB did not accept the diagnosis of concussion based on its own criteria in place in 2021 but that those criteria changed in 2022 and the WCB medical advisor did not consider that the worker did report headache within seven days of their head injury. The worker advisor also urged the panel not to rely upon or to give minimal weight to the WCB medical advisor opinion outlined in the Healthcare Service Request of November 22, 2021, which is undated and unsigned, and submitted the panel should instead rely on the opinions of the treatment providers, especially the treating neurologists.

The worker advisor also noted that English is not the worker’s first language and argued that the worker may have had some difficulty in expressing themself clearly in their interaction with the WCB medical advisor who conducted the call-in examination.

Employer’s Position

The employer was represented in the hearing by an advocate who provided a submission outlining the employer’s position. The employer’s return to work specialist also participated in the hearing and provided information to the panel.

The employer’s position is that the WCB correctly determined that the worker was not entitled to further benefits after June 24, 2021 as the available evidence indicates the worker recovered from their compensable workplace injuries by that time and did not require further medical treatment for those injuries, and that any loss of earning capacity beyond that date was not related to the compensable injuries sustained in the workplace accident.

The advocate noted the evidence that the worker’s left ear concerns predated the workplace accident and that no ear issues were identified in the initial hospital visit after the accident. The advocate submitted the worker’s nasal fracture was not of active concern at the time the WCB discontinued the worker’s benefits, although conceding that any further treatment required such as the upcoming surgical repair, could be compensable. The advocate noted that the worker's dizziness and vision issues were reported after WCB benefits ended, questioning the link between current symptoms and the workplace accident from four years ago.

Analysis

The question that the panel must decide in this appeal relates to the worker’s ongoing entitlement to benefits beyond June 24, 2021. If the panel finds that, as a result of the injuries sustained in the workplace accident of February 23, 2021, the worker continued to require medical treatment or continued to sustain a loss of earning capacity beyond June 24, 2021, then the worker’s appeal will succeed. As detailed in the reasons that follow, based on the evidence before the panel, we were able to make such findings and therefore, the worker’s appeal is granted.

The panel reviewed the evidence as to the nature and extent of the worker’s injuries arising from the workplace accident. The evidence confirms that the worker’s nasal fracture was treated soon after the accident and that six weeks later, there were no ongoing concerns or need for further treatment. While the evidence indicates that the worker has an upcoming surgery in relation to their nasal fracture which may be compensable, that issue has not yet been adjudicated by the WCB and the panel is satisfied that as of June 24, 2021, there was no further treatment required or restrictions in place in relation to the worker’s nasal injury. The panel further finds that the worker had a pre-existing left ear condition that resulted in “chronic drainage” and consultation with another ENT specialist some two years before the accident. While there is evidence that the worker required further treatment of their left ear after the accident, including surgery, the medical reporting does not support a causal relationship between the worker’s left ear condition and the workplace accident, nor does it suggest that the workplace accident aggravated or enhanced the pre-existing left ear condition. Further, on the date of the injury there were no concerns noted in relation to the worker’s ears. As such, the panel is satisfied that this is not a compensable condition as relates to the accident of February 23, 2021.

The panel further finds that the evidence supports the worker’s position that at the end of June 2021, they continued to require, seek, and obtain medical treatment in relation to their symptoms of persistent post-accident headache, and that the worker’s treatment providers did not support any return to work at that time. In reviewing the medical reporting, the panel notes that based on the worker’s report of persistent symptoms, their treating physician requested further brain imaging in May and June, consulted with a neurologist on June 30, 2021 and referred the worker to a concussion clinic for further investigation which did not occur until July 2021. While the WCB found the evidence did not support a diagnosis of concussion based on its own criteria, the panel is satisfied that the worker’s treatment providers were of the view that the persistent headache was or could be related to the head injuries sustained in the workplace accident and as such, continued to treat and investigate the worker’s symptoms beyond June 24, 2021, and further, recommended the worker remain off work during that period. The earliest mention of the possibility of a return to work is found in the concussion clinic neurologist’s August 3, 2021 report which recommends the worker follow up with their family physician “…to initiate a gradual return to work program once [their] headaches are better controlled.”

Based on the evidence and applying the standard of a balance of probabilities, the panel is satisfied that as a result of the injuries sustained in the workplace accident of February 23, 2021, the worker continued to require medical treatment and continued to sustain a loss of earning capacity beyond June 24, 2021. Therefore, the worker is entitled to wage loss and medical aid benefits after June 24, 2021. The appeal is granted.

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 24th day of January, 2025